The Plaintiff in a medical malpractice Action applied for an extension of time to file an Appeal. Rowbotham J.A. cited the four part test from Cairns v Cairns (1931), 26 Alta LR 69 (CA) as the leading authority with respect to extending time for an Appeal. An Applicant must show that there was a bona fide intention to file the Appeal and there was some special circumstance that would excuse or justify the delay; the Respondents were not seriously prejudice by the delay having regard to position of both parties; the Appellant has not taken the benefit of the judgment from which Appeal is sought; and the Appeal would have a reasonable chance of success if allowed to proceed.

The parties did not dispute the first three requirements of the test. The main issue was whether the Appeal had a reasonable chance of success. Her Ladyship noted that, when assessing if the Appeal has a reasonable chance of success, the standard of review must be considered. Justice Rowbotham noted that, while the Appeal might be a difficult one given the appropriate standard of appellate review, it could not be said that this was a hopeless Appeal, particularly in light of the grounds of Appeal involving procedural fairness. Rowbotham J.A. also noted that the requested time extension was only four days. The extension to file the Appeal was granted.