MCCARTHY ESTATE (RE), 2021 ABCA 293
13.4: Counting months and years
14.47: Application to restore an appeal
14.8: Filing a notice of appeal
14.37: Single appeal judges
This was an Application for extension of time to Appeal pursuant to Rule 14.37(2); an Order restoring a struck Appeal pursuant to Rule 14.47; and for an extension of time of one week from the Reasons of the Application to file the Appeal Record.
The deadline to appeal the decision of the Chambers Judge had expired, pursuant to Rule 13.14 (which lays out how to calculate time by counting months and years) and 14.8(a)(iii) (which requires the Notice of Appeal within one month after the date of the Decision).
Counsel for the Applicants advised that they understood the proper rule to be Rule 13.3 (which lays out how to calculate time by counting days) and, as a result of his reliance on that Rule, he missed the period in which to file the Notice of Appeal and, ultimately, the Appeal was struck.
The Court noted the test for extending time to appeal is discretionary and the relevant principles include: a bona fide intention to Appeal while the right existed; an explanation for the failure to Appeal in time that justifies the lateness; absence of serious prejudice so that it would not be unjust to disturb the judgment; a lack of benefits taken by the Applicant of the Judgment under Appeal; and a reasonable chance of success on the Appeal. The test for restoring an Appeal is also discretionary and the Court will consider: any arguable merit to the Appeal; an explanation for the defect or delay which caused to Appeal to be struck; reasonable promptness in moving to cure the defect and have the Appeal restored; intention in time to proceed with the Appeal; and lack of prejudice to the Respondent.
Justice Feehan explained that the tests for both extending time to Appeal and restoring an Appeal were discretionary and had similar or overlapping factors. No factor was determinative, and each factor had to be weighed. The Applicants sought to extend the time to Appeal by one Court day, a short period of time. They had clearly expressed an intention to Appeal. Counsel had explained the delay in filing the Notice of Appeal. There was no evidence of prejudice to the Respondent if the time for the Notice of Appeal was extended and the Appeal was returned to the list. Whether there was a reasonable chance of success on Appeal was a low threshold to meet. Accordingly, Justice Feehan allowed the Applications.View CanLII Details