CARBONE v WHIDDEN, 2013 ABCA 346
Rule 505: When appeal available
The Applicant in a medical negligence Action filed a Notice of Appeal from various Orders relating to production of documents, compelling responses to questions during Questioning and scheduling. When the Applicant missed the deadline for filing her Factum, the Appeal was struck from the list. The Applicant moved to restore the Appeal.
Justice Conrad noted that Rule 505(1) allowed an Appeal to the Court of Appeal from any Order emanating from a Justice in Chambers. Her Ladyship then considered Part J of the Consolidated Practice Directions, confirming that Part J procedures were designed to expedite Trials, and they apply to Appeals from those Orders which do not finally determine the issues in dispute. Justice Conrad held that, pursuant to Part J, s. 7(e), the Applicant's Factum was due six weeks after the Notice of Appeal was filed. When the Factum was not filed, the Appeal was properly struck from the list. Justice Conrad rejected the Applicant's argument that the deadline did not apply, stating:
If all a litigant has to do to avoid the time limits applicable to Part J appeals is to include grounds that require leave, without obtaining leave in her appeal, the usefulness of time limits would end. The factum was due, the appellant knew it was due, and the appeal was properly struck pursuant to the Part J guidelines.
Her Ladyship outlined the factors to be considered when restoring an Appeal to the list, noting particularly that, when considering whether to restore a Part J Appeal, the Court should be alive to the importance of early disposition and the adherence to the short time limits. The Application to restore the Appeal was denied.View CanLII Details