2.11: Litigation representative required
14.74: Application to dismiss an appeal
14.90: Sanctions

Case Summary

The Applicant, Gayton, filed a Notice of Appeal following an Order of the Court of Queen’s Bench dismissing the Applicant’s Application for the appointment of publicly funded legal counsel, and a publicly funded litigation representative. The Applicant sought a Stay of the underlying medical negligence Action pending the Appeal of the Court of Queen’s Bench Order, as well as an extension of time to file her Appeal materials.

The underlying Action was commenced in 2009. In 2014, the Court found the Applicant was not competent to carry on the litigation and ordered that the Applicant have a litigation representative appointed under Rule 2.11 (the “2014 Order”). From late 2015 to mid-2016, the Applicant had an Agent who was a lawyer, and who also planned to be appointed as her Litigation Representative. That Agent also acted as the Applicant’s legal counsel for the purpose of the Application before the Court of Queen’s Bench. At the time the Appeal was filed, the Agent was no longer acting as litigation representative or as counsel. Rowbotham J.A. cited Rule 14.90(1)(b) which permits the Court to strike any document, including a Notice of Appeal, for non-compliance of a Rule, Direction or Order. As the Applicant did not have a litigation representative at the time she filed the Notice of Appeal, which was required by the 2014 Order, Rowbotham J.A. directed that the Notice of Appeal be struck.

The Respondent asked that the entire Appeal be dismissed on the basis that it had no merit; however, Her Ladyship held that if the Respondent wanted to make that argument they must do so pursuant to Rule 14.7(4)(c), which provides that only a panel of the Court of Appeal can dismiss all or part of an Appeal if the Appeal is frivolous, vexatious, without merit or improper.

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