MCKERNESS v WHITSON, 2017 ABCA 207
1.5: Rule contravention, non-compliance and irregularities
12.61: Appeal from Provincial Court order to Court of Queen’s Bench
12.65: Non-compliance by appellant
12.71: Appeal from decision of Court of Queen’s Bench sitting as appeal court
13.5: Variation of time periods
A Decision of the Provincial Court granting a parenting Order in a family matter was appealed by the Plaintiff Mother to the Court of Queen’s Bench who was granted an extension to properly file and serve her Notice of Appeal. The Defendant Father applied to the Court of Appeal for permission to appeal the Court of Queen’s Bench’s extension. Justice Slatter noted that Rule 12.61 allowed an Appeal as of right from the Provincial Court to the Court of Queen’s Bench in family matters, but pursuant to Rule 12.71(1), there is no further appeal to the Court of Appeal, except with permission of the Court, on a question of law or jurisdiction.
Justice Slatter noted, among other things, that the Plaintiff Mother had failed to comply with: Rule 12.63(1)(b) by failing to file proof that the transcript had been ordered with her Notice of Appeal; and, Rule 12.63(2) by failing to file the transcript within three months of filing the Notice of Appeal. Although the Application for permission to appeal was unopposed, Justice Slatter considered the test for obtaining permission to appeal, since consent of the parties did not discharge the “judicial gate-keeping function of requiring permission to appeal”. His Lordship noted that the test for obtaining permission to appeal varied depending on the subject matter and overall context, and included a number of overlapping factors, such as: whether there is an important question of law; whether there is a reasonable chance of success; and whether the delay will cause undue prejudice.
Justice Slatter observed that, in this case, some of the Father’s grounds of appeal were weak. The Mother’s failures to comply with Rules 1.5 and 13.5 were not sufficiently important to warrant a further Appeal, and the likely outcome of an Appeal would have been a direction that the Application be re-heard by the Court of Queen’s Bench, causing further expense and delay. Rule 12.63(2) only permitted an extension of time for filing the transcripts within three months from filing, and Slatter J.A. observed that the Court has no jurisdiction to extend that time. However, Justice Slatter noted that Rule 13.5 allowed the Court to increase any period of time within the Rules. While the Father proposed to argue that Rule 13.5 did not apply, the reasons for that argument were not clear. Justice Slatter stated that it seemed that the Court could dismiss an appeal under R. 12.65(1) for failing to file the transcripts in time, but could “then immediately reinstate it under 12.65(2)”.
Given the law and the parties’ circumstances, the Court held that it was not appropriate to grant permission to appeal in this case. The Application was dismissed.View CanLII Details