martin, o'ferrall and strekaf jja

14.5: Appeals only with permission
14.37: Single appeal judges

Case Summary

The Applicant, Clark, sought permission to appeal a vexatious litigant Order made against him by Justice Veldhuis in Chambers. Veldhuis J.A. referred the Application to a panel of the Court of Appeal for determination.

The Court stated that the general test for permission to appeal under Rule 14.5 is relevant to permission to appeal Orders granted under section 23.1 of the Judicature Act, RSA 2000, c J-2 (the “Act”). The factors applicable to all Applications for permission to appeal are whether: there is an important question of law; there is a reasonable chance of success on appeal; and, any delay will not unduly hinder progress of the Action or cause undue prejudice. The Court noted that when considering whether to grant permission to appeal from an Order granted under section 23.1 of the Act, “the most important consideration is whether the appeal raises a serious issue of general importance with a reasonable chance of success”. Other considerations include the standard of review on the Appeal, whether there are conflicting Decisions related to the same issue, and whether there is a possible error of law, unreasonably exercised discretion, misapprehension of important facts, or other reasons why a full panel of the Court of Appeal should review the Order.

The Court held that Veldhuis J.A. applied the correct legal test. The Applicant did not demonstrate an arguable case that Justice Veldhuis had made any error of law, exercised discretion unreasonably, or that the Decision was unreasonable. Further, the proposed Appeal did not raise a serious issue of general importance with a reasonable chance of success, and in any case the Decision to grant the Order was subject to a reasonableness standard of review. The Court dismissed the Application.

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