COLEMAN v COLEMAN, 2014 ABCA 452
1.2: Purpose and intention of these rules
1.7: Interpreting these rules
3.15: Originating application for judicial review
3.27: Extension of time for service
4.33: Dismissal for long delay
13.5: Variation of time periods
14.16: Filing the Appeal Record – standard appeals
14.2: Application of general rules
14.47: Application to restore an appeal
14.65: Restoring appeals
15.16: Transitional provisions – Part 14
The Appellant applied to restore his Appeal after it was struck from the list for failure to file the transcripts and appeal digest in time. The Appeal was struck from the list on April 7, 2014. New Rule 14.65(3) came into force on September 1, 2014 and the Appeal was deemed abandoned pursuant to the new Rule on October 6, 2014. The Appellant filed a restoration Application on October 23, 2014 pursuant to Rule 14.47 of the new Rules of Court.
The Court held that the new Rules indeed governed the Application pursuant to Rule 15.16, as the Appeal was struck but still existing as of September 1, 2014. An Appeal only ceases to exist after it is deemed to be abandoned. The Court discussed whether Rule 14.47 required the Appellant to file and serve the materials to restore the Appeal within six months from the date of it being struck, or from when it was deemed abandoned. The Court held that, for the purposes of Rules 14.47 and 14.65(3), the clock begins to run as soon as the Appeal is struck; the restoration Application must be filed, served and made returnable within six months of the date it is struck. On expiry of the deadline, the Appeal is deemed abandoned and the party who initiated the Appeal cannot take a step to advance it. The clock for Rule 14.47 cannot restart simply because it was deemed abandoned under Rule 14.65(3). This would start a never-ending cyclical event which would give eternal life to an Appeal that has been struck.
However, an appellant who misses the deadline may apply for an extension: the Court may invoke Rule 13.5(2) and extend the time specified in Rule 14.47, as there is no express provision which prevents that application of Rule 13.5 to Rule 14.47. In the course of its analysis, the Court referenced Rules 1.2, 1.7, 14.2 and 14.16, and noted that Rule 13.5 does not apply to Rules 3.15, 3.27 and 4.33. In this case, the Court exercised its discretion and extended the time specified in Rule 14.47 to November 27, 2014 – one year after the Trial Judgment was pronounced.
The Appellant filed and served the restoration Application within the extended deadline. However, the Court declined to exercise its discretion to restore the Appeal because the Appellant was given notice of the deadline and there was no reasonable explanation for his inaction. Cogent reasons must be presented in order to justify restoring an Appeal after Rule 14.65(3) is triggered. In addition, the delay prejudiced the Respondent and the likelihood of success of the Appeal was not sufficient to warrant its restoration. The Application was dismissed.View CanLII Details