14.8: Filing a notice of appeal
14.37: Single appeal judges

Case Summary

A beneficiary to the estate in question, Ms. Logan, had made an Application for an Order striking the Notice of Appeal filed by a grandchild of the deceased, Ms. Balanko. Ms. Logan argued that Ms. Balanko had failed to properly serve the named Respondents as required by Rule 14.8. Ms. Balanko cross-applied to remove Ms. Logan, and other named Respondents from the style of cause, to change the lawyer contact information for one of the Respondents, as she wished to remove those Respondents from the Appeal, and to add the Decision in the Court of Queen’s Bench regarding Costs to her proposed amended Notice of Appeal.

The primary issue was that Ms. Balanko had served her Notice of Appeal on counsel for the estate’s personal representative, but did not serve any of the other named Respondents, who were all self-represented. Her Ladyship noted that pursuant to Rules 14.8(2)(a)(iii) and 14.8(2)(b), Ms. Balanko was obligated to serve Notice of her Appeal on all parties within 30 days of the Decision under Appeal, which she had failed to do as a result of this error. However, due to the unique circumstances at bar, Madam Justice Schutz chose to exercise the discretion conferred by Rule 14.37 not to strike the Appeal, but rather, to grant the requested amendments, as they did not enlarge the scope of the Appeal.

In so doing, Madam Justice Schutz explicitly stated that her Decision should not stand for the legal correctness of Ms. Balanko’s Applications, and in fact, it was actually Ms. Logan’s Application to strike which likely held more merit. Nonetheless, as Ms. Logan and the other named Respondents took no issue with being removed entirely from the Appeal, the strike Application was dismissed for mootness.

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