The Respondent appealed an Alberta Court of Queen’s Bench Decision granting the Applicant Summary Judgment against the Respondent (the “Decision”). The Applicant applied to strike the Respondent’s Appeal because the Respondent failed to serve the Notice of Appeal on the Applicant in time pursuant to Rule 14.8(2)(b).

The Court noted that Rule 14.90(1)(b) allows a single Appeal Judge to strike from the record any document including a Notice of Appeal for failure to comply with a Rule. The Court also noted that Rule 14.37(2) allows a single Appeal Judge to either strike an Appeal for failure to comply with a mandatory Rule or extend the time limit to appeal. The Court determined that the decision to extend time to appeal is discretionary and should consider whether:

• a bona fide intention to appeal held while the right to appeal existed;
• an explanation for the failure to appeal in time that serves to excuse or justify the lateness;
• an absence of serious prejudice such that it would not be unjust to disturb the judgment;
• the applicant must not have taken the benefits of the judgment under appeal; and
• a reasonable chance of success on the appeal, which might better be described as a reasonably arguable appeal.

After reviewing cases and above principles, the Court declined to grant an extension and struck the Respondent’s Appeal. The Court found that there were no exceptional circumstances present nor a reasonable justification for the Respondent’s failure to file the Notice of Appeal in time. The Court also found that the Respondent’s Appeal had little chance of success and that the Respondent engaged in litigation misconduct.