AFOLABI v WEXCEL REALTY MANAGEMENT, 2023 ABKB 68
1.5: Rule contravention, non-compliance and irregularities
This case involved a residential tenancy dispute. The Parties had appeared before the Residential Tenancy Dispute Resolution Service, and an Order was made by the Tenancy Dispute Officer in favour of the landlord. The tenants sought to Appeal the Order but had missed the deadline to file a Notice of Appeal. The tenants therefore sought permission to file a late Notice of Appeal.
Justice Marion considered whether he was permitted to allow the tenants to file the Notice of Appeal, given that section 28 of the Residential Tenancy Dispute Resolution Regulation, AR 98/2006 (the “Regulation”) directed that a Court must dismiss an Appeal which did not comply with the requirements set out therein. In particular, he considered his jurisdiction under the Rules generally, to enlarge timelines and forgive slips or omissions.
Justice Marion found that he had no authority to vary the Appeal period provided by the Regulation given the conflict between the mandatory language in the Regulation and the permissive nature of his general jurisdiction under the Rules. Further, Rule 1.5(5) prohibited him from curing any contravention that would have the effect of extending a time period which he is prohibited from extending.
In closing, Justice Marion remarked that, even if there was a technical argument to be made that he was permitted to allow the filing of the Notice of Appeal, as the Regulation only requires that the Appeal be dismissed, he would not do so as it would be a waste of judicial resources.View CanLII Details