ARTHUR BISCHOFF RRSP PLAN NO 7856 v MCCARGAR, 2017 ABCA 226
Wakeling, Greckol and Crighton JJA
10.52: Declaration of civil contempt
14.74: Application to dismiss an appeal
14.8: Filing a notice of appeal
The Appellant/Defendant, Donald McCargar (“McCargar”) sought, among other things, to extend the time to file an Appeal of a Chambers Judge’s Decision in which McCargar’s Application to have Plaintiff’s counsel declared in Contempt of Court was dismissed.
The Court of Appeal confirmed that the test for extending the filing period for an Appeal requires the Applicant to demonstrate that: there was a bona fide intention to appeal by the filing deadline; the Applicant “offered an explanation for the late filing that excuses or justifies the lateness”; it would not be unjust to disturb the lower Court’s Decision; that the Applicant has not benefitted from the Judgment; and there is a chance the Appeal would be successful.
The Court held that there was no reasonable chance of success. In particular, the relief sought by McCargar was discretionary. Rule 10.52(3) allows a Judge to declare a person to be in civil contempt if the alleged contemnor has not complied with a Court Order that was properly served, or of which the person has actual notice. The Court referred to recent leading authority, and confirmed that to prove contempt McCargar had to prove beyond a reasonable doubt that the alleged Contemnor had actual knowledge of the Stay Order that was the subject of his Application, and that the alleged Contemnor acted contrary to the Order’s terms. However, the Stay Order was never served by McCargar and there was no evidence that the alleged contemnor was made aware of it by other means. McCargar’s Application to extend the time to appeal was dismissed.
The Respondents had also applied to dismiss McCargar’s Appeal pursuant to Rule 14.74 on the basis that it was frivolous, vexatious, without merit and improper. The Court noted that, because of the panel’s Decision to dismiss McCargar’s Application to extend the time to file an Appeal, the Respondents’ Application was moot.
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