KUZIK v HAGEL, 2021 ABCA 241


14.8: Filing a notice of appeal

Case Summary

The Applicant applied to extend time to initiate an Appeal. The Judgment being appealed concerned, among other things, division of the parties’ matrimonial property.

The Court noted that Rule 14.8(2)(iii) requires a party to file a Notice of Appeal “within one month after the date of the decision”. The Court cited Wolfe v Morrisseau, 2021 ABCA 205, which restated the applicable test to extend time to appeal:

1.                  Did the Applicant form an intention to appeal while the right of appeal existed?

2.                  Has the Applicant provided an explanation for the failure to file a timely Appeal?

3.                  If so, does the explanation constitute “some very special circumstance which serves to excuse or justify such failure?”

4.                  Has the Applicant demonstrated that the delay has not “so seriously prejudiced the Respondent as to make it unjust” to grant a time extension?

5.                  Has the Applicant not taken the benefits of the Judgment?

6.                  Can the Applicant convince the Court that there is a reasonable chance of success for the Appeal?

On the facts, the Court was satisfied that the Applicant met the first factor: that he had a bona fide intention to appeal while the right of appeal existed.

The Applicant’s primary argument was that he had the mistaken impression that he had 30 days from the receipt of the Judgment, and not the date of the decision, to file the Appeal. The Court noted that a mistaken view of the law is not enough of an excuse, especially in the absence of due diligence. Additionally, some of the evidence appeared to contradict the Applicant’s assertion that he did not know the deadline to appeal was earlier.

The Court noted that self-represented litigants are required to know the rules under which litigation is conducted, as such, a mistaken impression as to the proper filing deadline cannot be called a “special circumstance.”

The Judgment was sent to the Applicant after some delay because the Applicant failed to approve the form of Order. As such, it was sent to the Applicant without his signature. Refusing to approve the form and content of the Judgment is also not a “special circumstance”.

The Court found that the Respondent would suffer prejudice from the delay in initiating the Appeal. The Respondent had instructed her lawyer to dispose of evidence relevant to the litigation after the time to appeal had passed. The Court also noted the emotional challenges and difficulty of the Trial and considered the Respondent’s attestation of a “need for closure”.

The Applicant admitted that under the Judgment, he had retained a vehicle which he later sold. The Applicant also submitted a claim to the Respondent’s employment pension which he was awarded under the Judgment. The Court found that on the facts, the Applicant had taken the benefits of the Judgment.

The Court noted that standard of review on the division of matrimonial property is highly deferential. At trial, the Trial Judge had found that the Applicant was not a credible witness and had failed to cooperate in various pre-trial processes. The Court found that the Trial Judge had not been unfair to the Applicant and “in a measure of extraordinary fairness”, had allowed the Applicant to adduce further evidence during Trial that he ought to have disclosed in advance of Trial.

The Court noted that while the Applicant did not agree with the Trial Judge’s findings, the Court on Appeal must consider the proposed grounds of appeal in light of the record, the Judgment under appeal, and the prevailing review standards. “It is trite that an appeal is from judgment, not the trial judge’s reasons.”

Having weighed the other factors, the Court found that it was not in the interests of justice to extend time to initiate an Appeal. The Applicant’s Application to extend time to initiate an Appeal was dismissed. The Respondent’s Cross-Application for Security for Costs was also dismissed.

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