14.8: Filing a notice of appeal

Case Summary

The Applicant lawyer and law firm applied to appeal an Order outside the one-month period set out in Rule 14.8. The Respondent was previously granted an Order permitting it to access certain business records in the Applicant’s possession (the “Preservation Order”). The records were put into the custody of an Independent Supervising Solicitor (the “ISS”). The ISS was granted a further Order on September 4, 2020 (the “Inspection Order”). The Applicant applied to Appeal the Inspection Order on December 4, 2020.

Rowbotham J.A. noted Rule 14.8(2)(a)(iii) states that an Applicant must file a Notice of Appeal within one month after the date of the Decision, and noted that the following factors guide the Court’s discretion to extend the time to appeal: (12) a bona fide intention to appeal while the right to appeal existed; (2) an explanation for the failure to appeal in time that serves to excuse or justify the lateness; (3) an absence of serious prejudice such that it would not be unjust to disturb the judgment under appeal; (4) the Applicants must not have taken the benefits of the Judgment under appeal; and (5) the Appeal would have a reasonable chance of success if allowed to proceed.

After reviewing each factor, Rowbotham J.A. denied the Application to extend the time to appeal. The Court was satisfied that the first factor was met based on correspondence from the Applicant lawyer to his counsel requesting the Inspection Order be appealed.

The Court determined that the second factor was not met. The Applicants argued that the date of Decision was November 4, 2020, which was the date the final Inspection Order was served on the Applicant. The Respondent argued that the date of the Decision was when the Decision was issued on September 4, 2020. The Court agreed with the Respondent, noting that Rule 14.8(1) starts the clock when the Order is made, not when served. As a result, the Court was not satisfied that there was a valid explanation for the lateness.

The Court also found that the third factor was not met. The prejudice the Respondent asserted was the cost associated with the ISS having already acted under the Inspection Order. The ISS had reviewed and categorized thousands of pages of records. The Court noted that if this were the only factor that negated the extension of time, it would not be sufficient to deny the Application. Neither party disputed that the fourth factor was met.

Finally, the Court was not satisfied that the Applicant’s Appeal had a reasonable chance of success. The Court noted that the Applicants’ main concern appeared to be with the Preservation Order, not the Inspection Order. As such, the Applicants’ other Application to extend the time to set aside the Preservation Order was a more appropriate forum for the dispute.

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