FUNK v FUNK, 2018 ABCA 210


14.5: Appeals only with permission

Case Summary

The Applicant sought permission to extend the time to file an Appeal, a Stay of enforcement pending Appeal, and applied to file a further Affidavit. The Applicant’s Appeal sought to set aside a Judgment which incorporated an arbitral award which was derived from a settlement agreement. The Appeal was filed three days after the 30 day Appeal period for the Judgment had expired.

McDonald J.A. applied the test to extend time to Appeal which requires the Applicant to establish i) they had a bona fide intention to Appeal while to right to Appeal existed, and some special circumstance existed to excuse or justify the failure to Appeal in time; ii) an explanation for the delay and that the opposing party was not so seriously prejudiced by the delay that it would be unjust to disturb the Judgment, having regard to the position of both parties; iii) that the Applicant has not taken the benefits of the Judgment from which the Appeal is sought; and iv) that the Appeal has a reasonable chance of success if allowed to proceed.

Justice McDonald found that the Applicant failed to demonstrate any evidence beyond a mere assertion that there was an intention to Appeal while the right existed. McDonald J.A. noted that the holiday season which occurred during the time to Appeal did not constitute a special circumstance in this case to justify granting the Applicant additional time. Justice McDonald found that the Respondent had suffered serious prejudice, notwithstanding a delay of only 3 days, noting that the Respondent had agreed to cancel the continuation of the Trial of the Action on account of the settlement agreement which had ultimately been converted to the Judgment which the Applicant sought to Appeal. The Applicant was also found to have taken all the benefits which were to accrue to him as a result of the Judgment, yet had not abided by its terms.

McDonald J.A. held that the Applicant failed to demonstrate a reasonable chance of success for four reasons: the Applicant sought to set aside the Judgment on the basis of fraud, and that the alleged fraud did not go to the foundation of the case; the Judgment was derived from an arbitral award, which the Applicant would have to Appeal as well, but he had not commenced any proceedings to do so within the 30 day period set by the Arbitration Act, RSA 2000, c A-43 and the Rules do not permit a Court to extend statutory appeal periods; the Parties had agreed to arbitration, and any remedy for fraud should be sought through arbitration; and that the Judgment to be Appealed appeared to be a consent Judgment which requires Permission to Appeal pursuant to Rule 14.5. The merits of the Applicant’s Appeal were doubtful. Finally, issues pertaining to the settlement agreement and its force and effect were expressly submitted to arbitration.

The Applicant’s Application to extend the time to Appeal was dismissed, which rendered the subsequent Applications moot, and the Applications were dismissed accordingly.

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