14.8: Filing a notice of appeal

Case Summary

Following a receivership Order, Conserve Oil 1st Corporation (“Conserve”) sought an extension of time to Appeal and leave to Appeal the Order. The underlying Action related to the effect of guarantees given to Alberta Treasury Branches (“ATB”) by the predecessors of Conserve.

Justice Rowbotham considered the merits in order to determine whether leave to Appeal should be granted. Her Ladyship noted that, in addition to the merits, the Court on a Leave Application under s 193(e) of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (“BIA”) must also consider whether: the Appeal is significant to the bankruptcy practice; the Appeal is of significance to the Action; the Appeal will “unduly hinder” the Action; and the Judgment appears to be “contrary to law, amounts to an abuse of judicial power, or involves an obvious error causing prejudice, for which there is no other remedy”. Rowbotham J.A. considered, among other factors, the significance of the Application to bankruptcy practice, and declined to grant leave to Appeal.

Rowbotham J.A. addressed the Application to extend time, even though the determination of the leave Application was dispositive of the entire matter, because Conserve’s former counsel erroneously relied on Rule 14.8(2)(a)(iii), which requires an Appeal be made within 30 days of an Order. Because this Order was made in the context of a receivership, the Appeal period was prescribed by the BIA, which provides for a 10 day period of Appeal. Notice of Appeal in this case was given within the 30 day period, but outside the 10 day period. Her Ladyship noted that the test to extend time limits under the BIA Rules is the same as that required by the Rules of Court. The Court must consider whether: there was a bona fide intention to Appeal within the prescribed time period; the delay to Appeal did not create prejudice; and, the Appellant had not taken the benefits of the judgment from which the Appeal is sought. Conserve’s counsel indicated at the Hearing that there would be an intention to appeal immediately after an Order was given and there was no evidence of prejudice to the Respondents. Justice Rowbotham noted that it was apparent that the Applicant took no benefit from the Order. The Applicant therefore met the test to extend time, provided that there was an issue of arguable merit to the Appeal. In the result, the Applications were dismissed as Conserve had not met the test for leave to appeal.

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