KELLEY (RE), 2023 ABCA 219


14.37: Single appeal judges

Case Summary

The Applicant applied pursuant to Rule 14.47 to restore his Appeal. The Applicant’s Appeal was previously struck pursuant to Rule 14.37(2)(c) on the basis that it was filed outside the appeal period stipulated by the Bankruptcy and Insolvency General Rules, CRC, c 368.

The Respondent argued that the matter was res judicata following the decision by which the Appeal was struck. At that time, the Applicant had not brought a Cross-Application to extend time to Appeal.

The Court disagreed that the matter was res judicata, but nonetheless declined to restore the Appeal.

Justice de Wit noted that the test to restore an Appeal involves an assessment of the Appeal’s arguable merit, which could not be sufficiently shown here. The Court observed that the Chambers Judge’s reasons for disallowing the Applicant’s claim were strong and well-supported, and that the Applicant’s proposed grounds of Appeal were, on their face, hopeless.

Justice de Wit held that there were no other considerations which would make it in the interests of justice to restore the Appeal and allow it to proceed, and therefore dismissed the Application.

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