BRETIN v ROSS, 2017 ABCA 389

Martin JA

9.15: Setting aside, varying and discharging judgments and orders
14.37: Single appeal judges

Case Summary

The Applicant, Mr. Bretin, sought an extension of time to file a Notice of Appeal respecting a procedural Order granted on August 24, 2017 (the “Procedural Order”). The Applicant had filed the Notice of Appeal three days too late. At the same time, the Applicant also filed an Application, which appeared to the Court to either seek the dismissal of the Respondent’s Application filed in the Court of Queen’s Bench, or seek the dismissal of the Procedural Order. The Procedural Order set out a number of steps “to get the parties in position for a trial in October 2018”.

In March 2014, the Surface Rights Board granted AltaLink Management Ltd. (“AltaLink”) a right of entry Order on lands owned by the individual Respondents. The Applicant filed a request for a reconsideration, arguing unsuccessfully that he was in adverse possession of a portion of the lands (the “Adverse Lands”), and objecting to AltaLink’s entry. The Applicant obtained an Order subdividing the Adverse Lands despite failing to serve Altalink with his Application, and failing to advise the Court of AltaLink’s encumbrance on the lands. A provision was added to the subdivision Order which allowed the Appellant to take the Adverse Lands free and clear of encumbrances. When AltaLink became aware of the subdivision Order in early 2016, it applied to set it aside or vary it pursuant to Rule 9.15(2), and to extend time. The Applicant, applied to summarily dismiss AltaLink’s Application on the basis that it was out of time. The Court of Queen’s Bench held that fairness dictated that the issue of whether to vary or set aside the subdivision Order should be heard on its merits, and pronounced the Procedural Order.

With respect to the Applicant’s Application to extend the time to Appeal, Martin J.A., referred to prior leading authority, and stated that the Applicant must show: (1) a bona fide intention to Appeal when the right exists; (2) an explanation for the failure to appeal in time, justifying its lateness; (3) that there would not be serious prejudice if the decision was disturbed; (4) that the Applicant did not take benefits from the Judgment under Appeal, and (5) a reasonably arguable Appeal. Justice Martin held that, although the Applicant met the first four criteria, his Appeal had no reasonable chance of success.

Martin J.A. considered the Applicant’s Application to dismiss AltaLink’s Court of Queen’s Bench Application which the Applicant contended was brought out of time, and held that the Applicant had no reasonable chance of success on Appeal. Justice Martin noted that while there was confusion between the parties with respect to the issues, the “sole and common issue” between the parties was “whether it was appropriate to extend time under rule 9.15(2)”. Her Ladyship noted that despite the improper service of the subdivision Order by the Applicant on AltaLink, AltaLink still managed to bring its Application under Rule 9.15 in a timely fashion.

Justice Martin held that, because the Applicant’s Appeal was bound to fail, it would not be in the interests of justice to extend the time to Appeal pursuant to Rule 14.34(2)(c). The Application was dismissed.

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