In a previous decision, while sitting as a single Appeal Justice, Feehan J.A.. denied the Applicant’s appeal of a Security for Costs Order made by a Case Management Judge and denied a related Stay Application directing payment out of Court.

The Applicant sought permission to Appeal the decision by Feehan J.A. to a Court of Appeal panel and requested an extension of time to do so. Feehan J.A. dismissed both Applications.

Before appealing a Decision of a single Appeal Judge to the Court of Appeal, an Appellant is required by Rule 14.5(1)(a) to obtain permission from that Appeal Judge. Further, Rule 14.5(3) precludes Appeals under Rule 14.5(1)(a) where the single Appeal Judge granted or denied permission to Appeal. Therefore, an Appeal of the decision of Feehan J.A. with respect to the Security for Costs Order could go no further.

However, the Appeal of the Stay Application directing payment out of Court could be argued before Feehan J.A., even though the Application was two months out of time. In determining whether to grant an extension of time to Appeal, Feehan J.A. applied the well-known test for extension of time as set out in Cairns v Cairns, 1931 CanLII 471 (AB CA). The test requires the Applicant to show: (a) a bona fide intention to Appeal while the right to Appeal existed; (b) an explanation for the failure to Appeal in time that excuses or justifies the lateness; (c) an absence of serious prejudice such that it would not be unjust, with respect to both parties, to disturb the Judgment; (d) that the Applicant did not take the benefits of the Judgment under Appeal; and (e) a reasonable chance of success on Appeal.

An Applicant appealing a Decision of a single Appeal Judge to a Court of Appeal panel must establish that: (a) there is a question of general importance; (b) a possible error of law; an unreasonable exercise of discretion; or (d) a misapprehension of important facts. At least one criterion must be established, otherwise the Appeal is not in the public’s interest.

Both the Application for extension for time and permission to appeal the Stay Application turned on whether the Applicant had a reasonable chance of success on Appeal. The Applicant failed to raise a question of general importance to the community or satisfy Feehan J.A. that he had a reasonable chance of success on Appeal.