ALBERTA HEALTH SERVICES v PAWLOWSKI, 2021 ABCA 344
14.9: Appeals from several decisions
14.8: Filing a notice of appeal
14.37: Single appeal judges
The Applicants applied for an extension of the time to file a Notice of Appeal. Rule 14.8 requires that a Notice of Appeal be filed within one month of the date of the decision being appealed.
The Applicants were found to be in Civil Contempt by the lower Court, however, the sanction arising from the finding of Contempt was to be determined at a later date. The Applicants filed a Notice of Appeal more than a month after the date of the Contempt Decision, but prior to the sanction being issued. The Notice of Appeal was accompanied by an Application seeking, if necessary, to extend the time to Appeal.
The issues on this Application were (1) whether the Notice of Appeal was in fact filed late; and (2) if so, whether the time to Appeal should be extended.
The Applicants argued that the contempt proceedings were not concluded, since the sanction phase had not occurred. The Applicants’ argument was based on the approach followed in criminal matters, where the Appeal Period does not commence until sentencing has occurred. Justice Strekaf held that the contempt finding was a “decision” within the meaning of Rule 14.8, and that the Appeal Period ran from that date. The Court compared it to Rule 14.9 which makes a single appeal of two related decisions possible in some circumstances, but does not change the deadline under Rule 14.8. The Court held that notwithstanding the comparisons to criminal proceedings, civil contempt proceedings are governed by the Rules, and not the Court of Appeal Criminal Rules. Justice Strekaf therefore held that the Appeal Period expired on July 29, 2021.
Turning to consideration of the extension issue, Justice Strekaf stated that Rule 14.37 permits a single judge to extend the time to appeal when a Notice of Appeal is not filed within the time limit. Justice Strekaf set out the test to be met on such an Application. The Applicant must show: (1) a bona fide intention to appeal while the right to appeal existed; (2) an explanation for the failure to appeal in time that excuses or justified the delay; (3) the absence of prejudice such that it would be unjust to disturb the judgment; (4) that the Applicant has not taken the benefit of the judgment under appeal; and (5) that there is a reasonably arguable appeal. Justice Strekaf also noted that the Court ultimately has discretion in extending the time to appeal, such that this test should not be applied rigidly.
Justice Strekaf held that the Applicants did in fact intend to appeal the contempt finding since the date of the Decision and that their delay was not the result of “gamesmanship” as suggested by the Respondent. The Court held that a mistaken interpretation of the Rule should not limit the Applicants’ ability to appeal the Contempt finding. The Court therefore the Application.View CanLII Details