MCLELLAND v MCLELLAND, 2021 ABCA 238
O'FERRALL, WAKELING AND CRIGHTON JJA
14.32: Oral argument
14.38: Court of Appeal panels
14.42: Applications to court of appeal panels
14.88: Cost awards
The Applicant applied to reopen or reargue an Appeal pursuant to Rule 14.38(2). The main Appeal was heard virtually, and the Applicant requested that the Registry not sign the formal Order until after the current Application was heard.
The Court of Appeal noted that the purpose of reopening an Appeal is to address situations where: a) the Court has been misled about the record or the issues; b) the Court has overlooked or misapprehended the evidence in a significant respect; or c) patent errors are found in the Decision or calculations. The Court has inherent jurisdiction to control and regulate its own process including to set aside a Judgment or Order, but this power is narrow and discretionary. It will only be exercised if: 1) there has been no delay in applying; 2) no party has taken the benefit of the Judgment or Order; 3) no party will suffer prejudice; and 4) the interests of justice favour setting aside entry.
The main Appeal concerned an estate matter that was being probated in British Columbia. The Applicant commenced a separate Action in Alberta regarding three condominiums located in Calgary that were not listed as estate assets. The Applicant had discovered that shortly before the testator’s death, the testator had gifted those three condominiums to the Respondent and the Respondent’s brother. The Alberta Action raised claims of undue influence, lack of testator capacity, resulting or constructive trust, and unjust enrichment.
The Alberta Action was struck on the main Appeal as an abuse of process. The majority concluded that British Columbia had jurisdiction to address the relief sought in the Alberta Action. The Applicant had written to the Court stating that she would be self-represented at the main Appeal Hearing but failed to attend. The Applicant did not contact the Registry or opposing counsel to advise of any difficulties she may have had connecting to the Hearing. Pursuant to Rule 14.32, the main Appeal was then heard in the Applicant’s absence.
The Court noted that the Applicant had been granted an extension on her deadline for filing the Application to reargue, but even with the extension the Application did not comply with Rule 14.42, and Costs submissions were filed outside the timeline that the Court imposed. Notwithstanding this, the Court considered the Applicant’s Affidavit and Memorandum in support of her Application.
In her Affidavit, the Applicant stated that the reason why she did not attend the main Appeal Hearing was that she “was unable to sustain an internet connection which triggered a severe panic reaction and resulted in a medical emergency.” The Registry delayed the main Appeal Hearing until later that day while attempting to contact the Applicant by telephone and email. The Applicant finally emailed the Registry more than a month following the date of the Hearing and did not indicate that she had any issues connecting or had experienced any medical issues.
On the facts, the Court of Appeal found that the Applicant’s failure to immediately notify the Registry of her connectivity issues and to seek a rehearing on a timely basis was inconsistent with the requirement that she do so without delay. Further, the Applicant did not satisfy the Court that she was misled about the record or the issues, or that the Court had overlooked or misapprehended the evidence in a significant respect. She had also not demonstrated that any such error would have affected the result.
In the Court’s view, the Applicant’s allegations were simply expressions of her dissatisfaction with the majority Decision and not on any procedural or fairness issues. The Application to reopen or reargue the Appeal was therefore dismissed.
The Court noted that this was not an appropriate case to award enhanced Costs or solicitor client Costs to either party. However, the Court did award the Respondent Costs of the main Appeal under Column 1 of Schedule C in accordance with the default Rule 14.88.View CanLII Details