BANK OF MONTREAL v MCLENNAN, 2023 ABCA ABCA
14.40: Applications to single appeal judges
14.37: Single appeal judges
The Defendant applied to extend the time to Appeal an Order of a Chambers Judge dismissing her Appeal from an Applications Judge’s Order. Appeal Justice Feehan exercised his discretion and granted the Application.
The Plaintiff had sued the Defendant for an indebtedness on a Mastercard. The Defendant alleged that she never received or used the Mastercard. When the Plaintiff served the claim, the Defendant was living with her critically ill mother, and was never personally served with the claim. The Plaintiff applied to validate service and later obtained Default Judgment.
Two years and ten months after Default Judgment was granted, and two years and nine months after the Defendant became aware of the Default Judgment, the Defendant applied to set it aside. The set aside Application was dismissed by an Applications Judge on November 22, 2022.
The Defendant unsuccessfully appealed the Applications Judge’s Decision on May 4, 2023. The Defendant’s time to Appeal the Chamber Judge’s Decision had expired June 5, 2023.
On June 1, 2023, the Defendant mistakenly filed an Application for Permission to Appeal without any supporting documents. She re-filed the Application on June 22, 2023. On June 27, 2023, the Defendant was informed by the Case Management Officer that she did not need permission to Appeal but was required to seek an extension of time to Appeal. The Defendant was advised to apply to extend the time to Appeal by July 31, 2023. She filed on July 20, 2023.
Rule 14.37(1) allows single Appeal Judges to decide any Applications incidental to an Appeal, and Rule 14.37(2)(c) gives single Appeal Judges discretion to extend the time to Appeal.
In extending the time to Appeal, Feehan J.A. applied the well-known test from Cairns v Cairns, 1931 CanLII 471 (AB CA) (“Cairns”). The case determined that an Applicant must: (1) show a bona fide intention to Appeal and an excuse for the failure to Appeal; (2) demonstrate that the Respondent was not prejudiced by the delay; (3) show that the Applicant did not take the benefits of the Judgment being Appealed; and (4) show that the Applicant had a reasonable chance of success if the Appeal is allowed.
The Court noted that it is not necessary for an Applicant to meet all four requirements in Cairns, but it is more likely that an extension will be granted if all requirements are met. The Court found that the Defendant had satisfied the first step. She had a bona fide intention to file but was mistaken about the procedure to be undertaken. On the second and third steps, there was no evidence that the Plaintiff had been prejudiced by the Defendant’s delay in filing the correct Application, and the Defendant did not take the benefits of the decision below.
The fourth point was contested by the Plaintiff. The Plaintiff argued that the Defendant failed to comply with Rule 14.40(2), which stipulates that an Applicant must serve a filed copy of the Application and other materials on parties to the Appeal at least 10 days before the Application is scheduled to be heard. However, the Registry alerted the Plaintiff to the Defendant’s Application, and the Plaintiff filed a memorandum of argument. Further, the Plaintiff made oral submissions.
Lastly, Feehan J.A. found that the Defendant’s delay was not willful, and her position was reasonably arguable. Time to Appeal was extended to the date the Defendant filed the Notice of Appeal on July 20, 2023.View CanLII Details