BOURQUE v TENSFELDT, 2017 ABCA 357
14.45: Application to admit new evidence
14.37: Single appeal judges
The Appellant, Bourque, appealed an Order which held her in contempt, and compelled her to attend Questioning in order to purge her contempt (the “Contempt Appeal”). Bourque had previously applied to the Court of Appeal to stay the enforcement of the contempt Order and was unsuccessful. When Bourque failed to purge her contempt, her pleadings at the Court of Queen’s Bench were struck out. As such, Bourque also appealed the Order which struck out her pleadings (the “Strike Appeal”). The Court stayed the Contempt Appeal until the Strike Appeal was determined.
Bourque then applied to the Court of Appeal seeking a reconsideration of the Court’s earlier Decision dismissing her Application to stay the enforcement of the contempt Order (“Reconsideration Application”), and applied to adduce additional evidence for the Contempt Appeal (“New Evidence Application”). Greckol J.A. noted that Bourque had not applied to admit new evidence prior to the filing of her Factum as required by Rule 14.45. The Respondent, Tensfeldt applied to strike the Reconsideration Application and the New Evidence Applications on the basis that they were moot.
Justice Greckol referred to Rule 14.37 which provides that a single Justice of the Court of Appeal may hear and decide an application incidental to an appeal. Her Ladyship noted that the Reconsideration Application and the New Evidence Application were incidental to the Contempt Appeal. Justice Greckol also held that the Reconsideration Application was moot as the dates set for Questioning had passed. Further, there was “no point” in admitting new evidence for an Appeal which was stayed and which could be struck. The New Evidence Application was stayed with the condition that if the Strike Appeal was allowed and Bourque’s pleadings restored, she could reschedule the New Evidence Application.View CanLII Details