KELLEY (RE) , 2023 ABCA 232


14.5: Appeals only with permission

Case Summary

The Applicant filed an Application to restore his Appeal under Rule 14.47 on July 17, 2023. Justice de Wit dismissed that Application noting that the Appeal had no merit and was hopeless. The Applicant filed the current Application to restore his Appeal again. The Applicant claimed that the combined effect of a number of the Rules, including Rules 14.1, 14.65(1) & (3), 14.37(2)(c), and 15.16, allowed him to bring this Application.

Justice de Wit considered the Rules mentioned by the Applicant, noting that the Rules do not allow for an Appeal in the circumstances; however, Rule 14.5(1)(a) allows permission to Appeal to be granted from the Decision of a single Appeal Judge. The Court noted that the test under Rule 14.5 is established in Ouellette et al v Law Society of Alberta, 2021 ABCA 283 at para 14, which indicates that permission to review a single Judge’s Decision should be rare and permitted “only if there is a compelling reason to require the applicant and the respondent to reargue and three Judges of the Court of Appeal to decide an issue.” Justice de Wit considered Can v Alberta Securities Commission, 2023 ABCA 202 (“Can) at paras 25, 35, which establishes that an Application to reargue is only allowed in exceptional circumstances such as when the Court has been mislead, where the Court has overlooked or misapprehended evidence or where patent errors are found in the decision or calculations. Considering Can, Justice de Wit concluded that none of the exceptional circumstances were applicable in this case.

Justice de Wit dismissed the Appeal noting that the Applicant’s submissions provided no further evidence of a meritorious Appeal or a reasonable chance of success at the Appeal.

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