KURE v KURE, 2017 ABCA 215

Strekaf JA

14.47: Application to restore an appeal
14.8: Filing a notice of appeal

Case Summary

Justice Strekaf considered the Plaintiff Appellant’s Application to restore her Appeal that had been struck under Rule 14.8(2)(iii) because the Appeal Record was not filed in time, and extend the time to file a Notice of Appeal. Strekaf J.A. noted that the factors to consider for the restoration of an Appeal was set out in Composite Technologies Inc v Shawcor Ltd, 2016 ABCA 350 (CanLII), and included:

(a)   arguable merit to the appeal;

(b)   an explanation for the defect or delay which caused the appeal to be taken off the list;

(c)   reasonable promptness in moving to cure the defect and have the appeal restored to the list;

(d)   intention in time to proceed with the appeal;

(e)   lack of prejudice to the respondents (including length of delay).

The factors that a Court should consider to extend time to file a Notice of Appeal is as set out in Cairns v Cairns, 1931 CanLII 471 (AB CA), [1931] 4 DLR 819, including:

(a)   a bona fide intention to appeal held while the right to appeal existed;

(b)   an explanation for the failure to appeal in time that serves to excuse or justify the lateness;

(c)   an absence of serious prejudice such that it would not be unjust to disturb the judgment;

(d)   the applicant must not have taken the benefits of the judgment under appeal; and

(e)   a reasonable chance of success on the appeal, which might better be described as a reasonably arguable appeal.

Strekaf J.A. stated that the factors to be applied in determining both Applications were similar, and observed that the Applicant had failed to establish a bona fide intention to proceed with her Appeal during the 1-month appeal period. Her Ladyship stated that it is well established law that an Order of the Court “takes effect from the time that it is granted and if a party is unsure of which order is going to be filed but has a genuine intention to appeal […] then that notice of appeal should have been filed and could always be abandoned later”. Uncertainty about a final form of Order is “not a sufficient excuse” for a failure to file the Appeal within the period designated by the Rules. In addition, the Applicant had failed to establish the merits of her Appeal. The Order that the Applicant sought to appeal was a discretionary interim Order in a family law matter and orders of this sort were granted “considerable deference”.

In the result, Justice Strekaf dismissed the Applications.

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