KELLY (RE), 2023 ABCA 181


14.37: Single appeal judges

Case Summary

The Trustee Applicant applied to strike the Respondent’s Appeal pursuant to Rule 14.37(2)(c) on the basis that the Notice of Appeal was filed outside the Appeal Period imposed by the Bankruptcy and Insolvency General Rules, CRC c 368 (the “BIA Rules”).

The Respondent argued that the provision of the BIA Rules cited by the Applicant did not apply here because of provisions in the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (the “BIA”) which provided for an Appeal to the Court of Appeal, but did not impose an Appeal Period.

The Court of Appeal rejected this argument. Justice Ho stated that while the BIA addresses when an Appeal lies to the Court of Appeal, the initiation of such an Appeal is governed by the BIA Rules.

Despite the Respondent’s argument that the time to Appeal should be extended, in the absence of an Application to that effect and evidence in support, the Court held that the Respondent’s Notice of Appeal should be struck.

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