BILAWEY v BILAWEY, 2021 ABCA 178
14.5: Appeals only with permission
14.75: Disposing of appeals
The Applicant applied for permission to appeal a Decision of a Chambers Judge pursuant to Rule 14.5. The Chambers Judge directed that both non-recurring capital gains and a 2019 settlement payment from an employment dispute should be included in the Applicant’s income for the purposes of recalculating the child support payable by the Applicant from 2013–2018.
Rule 14.5(1)(g) requires an Applicant to obtain permission to appeal where the controversy in the Appeal can be estimated in money and does not exceed $25,000, such was the case here.
Justice Watson cited PWM Loss Prevention Services Inc. v Alberta, 2014 ABCA 376 for the test for granting permission to appeal under Rule 14.5(1)(g). This test asks the Court to consider the following factors: whether there is an arguable case having regard to the standard of review on appeal; whether there is a question of law or jurisdiction at issue; whether the law or precedent is of importance to others or the public; the practical effect on the parties and the result in the particular case; whether there will be undue prejudice to a party; whether there is a bar to the Appeal; whether the expense of a further Appeal is commensurate with the value to be gained from the Appeal; and the standard of review on the Appeal if leave were to be granted.
Justice Watson held that, in this case, the proposed grounds of appeal did not raise clear issues of law, but rather concerned the exercise of judicial discretion to which deference applies.
The Applicant raised the issue of the Chambers Judge’s treatment of evidence regarding the proper characterization of the capital gains. Specifically, the Applicant alleged that the Chambers Judge was over reliant on representations made by counsel and that the conclusions drawn by the Chambers Judge in the absence of proper evidence amounted to an error of law. Justice Watson disagreed, but held that in any event such an error would properly fall under Rule 14.75(2). This Rule allows the Court of Appeal to dismiss an Appeal despite an error in the Court below in certain circumstances.
Justice Watson therefore dismissed the Application for permission to appeal for not meeting the requirements of an arguable case, questions of law, or importance to the public.View CanLII Details