CARBONE v WHIDDEN, 2013 ABCA 377
Rule 505: When appeal available
The Plaintiff/Appellant applied to restore an Appeal of several Orders of the Case Management Judge. The Plaintiff/Appellant argued that the Appeal should be restored in part because of her confusion about proper process. The Plaintiff/Appellant understood from the Case Management Officer that Leave was required to proceed, and so missed the filing date for the Appeal. Madam Justice Conrad confirmed an earlier Decision that the Plaintiff Appellant was not confused as to the filing date and evidence existed to support the decision to refuse the Appeal.
Her Ladyship noted that the test under Rule 505(6), the Rule governing when an Appeal is allowed, is stated as: “whether there is a possible error of law, a misapprehension of important facts, or the discretion has been unreasonably exercised”. Her Ladyship further noted that the presiding Justice is required to examine the original Application for any errors that might alter the decision upon its restoration. Justice Conrad applied the test for restoration and considered whether it was an error of law not to restore the Appeal, noting that the test for restoration is threefold: “one considers the reason for delay, the prejudice and the relative merits of the appeal”. In the result, Justice Conrad did not find an error of law and observed that the merit consideration had actually operated in the Plaintiff/Appellant’s favour. Further, the Plaintiff/Appellant had failed to convince Her Ladyship that there were any misunderstandings of the facts or arguments that could have resulted in a different decision at the time.
Justice Conrad also observed that this particular Application was a Part J Appeal on interlocutory proceedings and it did not end the Action. The Application was denied.View CanLII Details