Wakeling ja

13.4: Counting months and years
13.5: Variation of time periods
14.11: How to start a cross appeal
14.8: Filing a notice of appeal

Case Summary

Boven applied for permission to file a Cross Appeal nearly four months after the time period prescribed in Rule 14.11 had expired. Wickett had appealed a Trial Decision, but the Appeal was struck for want of prosecution one day after Boven applied to cross-appeal.

Justice Wakeling noted that Rule 14.11 states that “[a] respondent who contends that the decision of the court appealed from should be varied must, within the time for filing an appeal or within 10 days of service of the notice of appeal, whichever is later ... file with the Registrar ... a notice of cross appeal”. His Lordship noted that the date of Decision is the start date for measuring the time for filing an Appeal pursuant to Rule 14.8(1), and the end date for filing the Appeal was delineated by Rules 13.4(1), 14.8(2)(iii) and the Interpretation Act, RSA 2000, c 1-8, s 22(1). As such, the start date for Boven to file a Cross Appeal was September 26, 2017 and the end date was October 5, 2017 pursuant to Rule 14.11.

Wakeling J.A. noted that Rule 13.5(2) permits the Court to extend a time period that is specified in the Rules. His Lordship explained the “second window” concept, emphasizing that the Court’s jurisdiction should be exercised in exceptional circumstances, and provided the factors which inform the Court’s consideration of whether an extension should be granted for filing an Appeal or Cross-Appeal.

Wakeling J.A. reviewed the factors in the “second window” concept as applied to the facts and concluded that Boven’s Application did not meet the conditions for extending time to file a Cross Appeal. The Application was therefore dismissed.

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