The Applicant unsuccessfully pursued Judicial Review of a decision from the Appeals Commission of the Workers Compensation Act, RSA 2000, c W-15. Within the month following the Judicial Review Decision, the Applicant filed an Application to extend the time to appeal rather than a Notice of Appeal.

Justice Schutz considered Rule 14.8(2)(iii), which requires the Applicant to file Notice of Appeal within one month of the date of the Decision. Justice Schutz then considered Cairns v Cairns, 1931 CanLII 471 (AB CA), for the factors which should guide the Court’s exercise of discretion on whether to extend the time to appeal: (1) whether an intention to appeal was held by the Appellant while the right to appeal existed; (2) whether an explanation exists which serves to justify or excuse the lateness; (3) whether the opposing party was seriously prejudiced by the delay; (4) whether the Appellant had taken benefits of the Judgment from which an Appeal is sought; and (5) whether the Appeal has a reasonable chance of success.

Justice Schutz did not address the fourth factor but found that the Applicant had made out the first three factors. Justice Schutz then turned to consider whether the Applicant had a reasonable chance of success. Although Justice Schutz indicated that the Appeal may be difficult, Her Ladyship found that the Appeal was not hopeless or frivolous and granted the Application to extend the time to appeal pursuant to Rule 14.37(2)(c).