The Defendant applied for leave of the Court to file and serve a Notice of Appeal of an Order by an Applications Judge granting the Plaintiff: (i) Summary Judgment and (ii) a declaration that the Defendant’s actions were fraudulent (together the “BMO Judgment”). Specifically, the Defendant sought to Appeal the fraud declaration in the BMO Judgment.

After engaging with questions of “if” and “when” the Defendant was served with the BMO Judgment, to determine if the Appeal period expired and, if the Appeal period had expired, whether to extend it, the Court ultimately dismissed the Plaintiff’s Application.

The Court found that the Defendant was served with the BMO Judgment on November 17, 2023, by email. Under Rule 6.14(2), a Notice to Appeal an Order of an Applications Judge must be filed and served within 10 days after the Order was entered and served, and the Appeal must be scheduled within two months after the date on which the Notice to Appeal was filed. The Appeal period expired on November 27, 2023.

Importantly, the Court found that the Defendant was served with the BMO Judgment because she acknowledged service in her email response the Plaintiff.

On October 27, 2023, the Defendant’s then counsel filed and served a Notice of Withdrawal of Lawyer of Record that provided the Defendant’s last known address; however, it did not include the Defendant’s email address. The Plaintiff served the Defendant at the email address. The Court noted that Rule 2.29(3) provides that “the address of the party stated in the notice of withdrawal is the party’s address for service after the lawyer of record withdraws unless another address for service is provided or the Court otherwise orders”.

Rule 11.20 stipulates for the service of documents in Alberta, other than commencement documents. It provides that non-commencement documents can be served by a method of service described in Division 2 for service of a commencement document. Relying on the 2023 Court of Appeal decision in Powell Estate (Re), the Court found that “one of the ways that service of commencement documents (and therefore also non-commencement documents under rule 11.20(a)) may be effected on self-represented litigants is if the self-represented litigant accepts service of the document in writing”. Rule 11.18 further allows self-represented litigants to accept service of commencement documents in writing.

Since the Defendant acknowledged receipt of the BMO Judgment on November 17, 2023 via email, the court found that service was effected and the limitation period to Appeal started to run.

With respect to determining whether the Court should exercise its discretion to extend the Appeal period under Rule 13.5, Marion J. held that the Defendant’s lengthy delay and overall conduct in the litigation mitigated against granting leave. The Court was guided by the application of the five well known Cairns factors: (i) a bona fide intention to Appeal, (ii) an explanation for the failure to Appeal in time that justifies the lateness, (iii) an absence of serious prejudice that it would not be unjust to disturb the Judgment, (iv) lack of benefits derived by the Applicant from the benefits of the Judgment under Appeal, and (v) a reasonable chance of success on Appeal. While not determinative, the factors assist the Court to determine whether the interest of justice are served by granting the extension.

The thrust of the analysis focused on the second Cairns factor, which did not assist the Appellant. The Court found that the Defendant did not file her Application for permission to Appeal until more than three months after being served with the BMO Judgment. This was longer than the two-month period under Rule 6.14(2) which states that an Appeal of an Order by an Applications Judge must be returned within two months after the Notice of Appeal was issued. While the two-month period is often not achieved because of scheduling issues, the Defendant’s delay was considered significant and inexcusable. The fact that the Defendant was self-represented was material but not a “very special circumstance” that could excuse the failure to Appeal on time.