This was an Application by the Plaintiff pursuant to Rule 14.5(1) for permission to Appeal a Costs Award in a Class Action. The Chambers Judge refused to certify the class and granted the Defendants Summary Judgment, thereby dismissing the Claim, and awarded Costs on the basis of double Column 5 of Schedule C. Justice Rowbotham considered the preliminary issue of the timeliness of the Application since it was filed some nine months after pronouncement of the Costs Order. Her Ladyship stated that the new Rules require that the Application for permission to appeal be brought within one month of the pronouncement of the Decision, and the previous Rules required a Notice of Appeal to be filed within 20 days from filing, entry and service of the Order. Under either Rule, the Plaintiff’s Application for permission to appeal was not filed in time, so the Applicant required permission to extend the time to file the Application.

Rowbotham J.A. approved of the test articulated in prior authorities including Sohal v Brar, 1998 ABCA 375 (CanLII). The test for extending time to file the Application for permission to appeal comprised four parts:

(i) that there was a bona fide intention to appeal while the right to appeal existed and some special circumstance that would excuse or justify the failure to appeal; (ii) an explanation for the delay and that the other side 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 appellant has not taken the benefits of the judgment from which appeal is sought; and (iv) that the appeal would have a reasonable chance of success if allowed to proceed.

Rowbotham J.A. held that the Plaintiff did not satisfy the test for the time extension, and that permission to appeal the Costs Order would not have been granted in any event. The Plaintiff pointed to one paragraph of the reasons of the Chambers Judge which concluded that, although Rule 10.32 suggests that a certain level of restraint is important to ensure no disproportionate chill on future class litigation, the traditional Costs factors under Rule 10.33 were overwhelmingly in favour of the Respondents. Rowbotham J.A. said this was not an error in principle, and concluded that the Chambers Judge correctly determined Costs within the rubric of Rules 10.32 and 10.33. Justice Rowbotham dismissed both the Application for time extension and the Application for permission to appeal.