Pursuant to Rule 14.8, and supported by Rule 14.3(7), the Appellants sought an extension of approximately six weeks to appeal a Decision of the Court of King’s Bench (the Application).

Watson J.A. cited Cairns v Cairns, 1931 CanLII 471 (AB CA), [1931] 4 DLR 819, for the criteria to assess whether an extension of time should be granted in relation to an Appeal:

1. There was a bona fide intention to appeal while the right to appeal existed and that there was some special circumstance that would justify the failure to appeal;

1. There is 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 regarding the position of both parties;

1. The Appellant has not taken the benefits of the judgment from which the appeal is sought; and

1. The Appeal would have a reasonable chance at success if allowed to proceed

(the Cairns Test).

Applying the Cairns Test, Watson J.A. dismissed the Application.

Under the first part of the Cairns Test, Appeal Justice Watson accepted that there was a bona fide intention to appeal. Under the second part, Watson J.A. found that the Applicants had not provided an explanation for the delay. However, the Court was satisfied that the Respondent was not so seriously prejudiced by the delay itself that it would be unjust to grant the extension.

As to part three of the Cairns Test, Watson J.A. found that Appellant did not appear to have taken the benefits of the Judgment under Appeal. The main question was whether the Appeal would have a reasonable chance at success if allowed to proceed. Watson J.A. held that there was no substantiation to the Appeal, and it had no reasonable chance of success.