JOSE v BABY, 2023 ABCA 137


14.40: Applications to single appeal judges
14.47: Application to restore an appeal
14.65: Restoring appeals

Case Summary

This was an Application pursuant to Rules 14.47(1) and 14.65(1) to restore the Applicant’s Appeal of a Chambers Judge’s Order determining income and directing child support obligations.

The Notice of Appeal had been struck as a result of the Applicant’s failure to file before the deadline. Therefore, the Court considered both the test for permission to extend time for filing and the test for restoring an Appeal.

The Court enumerated four factors to be considered in an Application to extend time, subject to the Court’s overriding discretion: (1) whether there was a bona fide intention to Appeal while the right to Appeal existed and there was some special circumstance that would excuse or justify the failure to Appeal; (2) whether there is an explanation for the delay and 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; (3) whether the Applicant has taken the benefits of the Judgment from which Appeal is sought; and (4) whether the Appeal would have a reasonable chance of success if allowed to proceed. The Court noted overlap between the test for extending time to Appeal and the test for restoring an Appeal.

Considering the Applicant’s position, the Court held that the Appeal did not appear to be viable in light of deference owed to the Chambers Judge’s determination and the Applicant’s failure to adduce any, or any sufficient, evidence, as required pursuant to Rule 14.40(1). The Applicant’s failure to offer any explanation for his late filing and failure to address the presumed prejudice to the Respondent were also noted. In the result, the Application was dismissed.

View CanLII Details