1.5: Rule contravention, non-compliance and irregularities
14.8: Filing a notice of appeal

Case Summary

In a prior decision, the Appellant was granted permission to appeal. Subsequently, her counsel failed to ensure that the Notice of Appeal was filed within the 10-day period required by Rule 14.8(2)(a)(ii); Counsel filed the Notice of Appeal within 23 days.

The Appellant applied for an extension of time to file the Notice of Appeal. In consideration of the Application, Justice Slatter noted that Rule 1.5 anticipated non-compliance with the Rules and provided possible remedies for procedural noncompliance. Justice Slatter also reviewed the principles from Cairns v Cairns, [1931] 4 DLR 819 which inform when to extend the time to file a Notice of Appeal. Both Rule 1.5 and Cairns discuss prejudice. His Lordship found that the Application came down to a question of prejudice, finding that the Respondent would suffer no prejudice if the Application was granted, and that the Appellant would suffer significant prejudice if the Application was denied. Justice Slatter reviewed the factual circumstances that arose from the “human error” and granted the Application.

The Appellant was granted Costs for the Application and for the cross-examination on the Affidavit totalling $1,000.

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