BRODA v HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA, 2021 ABCA 308
3.68: Court options to deal with significant deficiencies
14.65: Restoring appeals
The Applicant sought to restore an Appeal from a decision that upheld the striking of his Civil Action against the Respondents, the Law Society of Alberta (LSA) and Her Majesty the Queen in Right of Alberta (Alberta). A Master in Chambers had granted an Application by the Respondents to strike an amended Statement of Claim pursuant to Rule 3.68(2)(b) and (d). The Applicant’s Appeal of that decision was dismissed. The Applicant then appealed to the Court of Appeal but the Appeal was struck for failure to file the Appeal Record on time. The Applicant filed an Application to restore the Appeal, but the Appeal was deemed abandoned pursuant to Rule 14.65 as the Application to Restore the Appeal was not granted within 6 months of the Appeal having been struck. The Applicant then applied to restore the Appeal.
The Court confirmed that the test to restore an Appeal after the six-month “deemed abandonment” deadline includes: (1) An explanation for the delay that caused the Appeal to be struck in the first place; (2) an explanation for the delay in applying to restore the Appeal; (3) continuing intention to proceed with the Appeal; (4) lack of prejudice to the Respondent; and (5) the arguable merit of the Appeal.
The Respondents submitted that factors 1-3 were fulfilled. The Court added that when an Appeal has been struck for six months, prejudice can be assumed. The Court underscored that the Application turned on whether the Applicant had established the arguable merit of the Appeal against the decisions rendered by the Master and the Chambers Judge striking the Civil Claim against the LSA. The Court found that there was no arguable merit to the Applicant’s Appeal and noted that the Chambers Judge made no error in his review of the Master’s decision. The Court closed with Obiter that the civil case is, at its root, an impermissible collateral attack on the proceedings of the LSA and that it is not in the interests of the administration of justice that the Applicant be permitted to succeed in the Application to Restore the Appeal.View CanLII Details