JARRETT v FLANNERY, 2016 ABQB 565
6.14: Appeal from master’s judgment or order
11.21: Service by electronic method
The Plaintiffs appealed the Summary Dismissal of their Action against the Defendants. The Defendants cross-applied to strike the Plaintiffs’ Appeal as being out of time.
The Action was summarily dismissed on October 22, 2014. The endorsed Summary Judgment Order was filed on January 21, 2015. On January 22, 2015, Counsel for the Defendants emailed a copy of the Summary Judgment Order to Counsel for the Defendants and provided the Defendants with a second copy of the Order by email on February 12, 2015, confirming service on January 22, 2015. On March 9, 2015, the Plaintiffs filed and served by email an Appeal of the Summary Judgment Order. On August 25, 2015, the Defendants filed an Application for an Order dismissing the Plaintiffs’ Appeal for being out of time. The Plaintiffs subsequently filed an Affidavit attaching a surgical opinion letter on October 16, 2015.
Justice Brooker noted that under Rule 6.14, an Appeal from a Master’s Order must be filed and served within 10 days after the Order or Judgment is entered and served. The Court noted that in this case, the Order was sent to an email address provided by Counsel for the Plaintiffs for the purpose of service in this Action. Additionally, the Order was sent and received in a form usable for subsequent reference, and the sending agent, the Defendants’ Counsel’s computer and email system, obtained confirmation that the transmission was successfully completed. Further, service of the Notice of Appeal was effected by email 24 days after the Defendants served the Order. Brooker J. observed that as there was no Application to extend the time for service; therefore, the Appeal was dismissed.
Despite dismissing the Appeal as being out of time, Brooker J. considered the Appeal on its merits. The Court noted that the standard of review for an Appeal of a Master’s decision is correctness and is a de novo hearing. The Plaintiffs in this case filed additional evidence on Appeal and the Defendants objected on the basis that the Affidavit was filed late. Brooker J. agreed with the Defendants, and held that the Affidavit was filed and served long after the one month limit set out in Rule 6.14(5)(b). Additionally, the Affidavit was not filed and served in accordance with QB Civil Practice Note 2 and the Affidavit contravened two prior Court Orders setting deadlines for the Plaintiffs to file expert evidence in 2013. His Lordship held that the attempt to introduce expert evidence by attaching it as an appendix could not be permitted and was clearly hearsay.
Justice Brooker held that the Plaintiffs had no expert evidence that any of the Defendants failed to meet the applicable standard of care, and the Plaintiffs’ Claim had no real chance of success. The Cross-Application was allowed and the Appeal was dismissed with Costs.View CanLII Details