MCMULLEN v NORTON ROSE FULLBRIGHT CANADA LLP, 2018 ABCA 299
14.13: Standard appeals
14.14: Fast track appeals
14.23: Filing factums – standard appeals
14.24: Filing factums – fast track appeals
14.33: Scheduling standard appeals
14.34: Scheduling fast track appeals
The Applicant appealed an interlocutory Decision by a Chambers Justice in the Court of Queen’s Bench. Since the Decision being appealed was an interlocutory Decision, it should have proceeded as a Fast Track Appeal. Rules 14.13 and 14.14 provide for two types of Appeals: Fast Track Appeals and Standard Appeals. The deadlines for Fast Track Appeals are set out in Rule 14.24, whereas the deadlines for Standard Appeals are set out in Rule 14.23. Additionally, Standard Appeals must be scheduled not later than 20 days after the deadline for the filing of the last factum pursuant to Rule 14.33, whereas Fast Track Appeals are scheduled after the Appellant’s factum has been filed pursuant to Rule 14.34.
Due to an error by the Applicant in drafting the Notice of Appeal, the Appeal was not classified as a Fast Track Appeal and was instead classified as a Standard Appeal. However, the Respondents were under the assumption that the Appeal was proceeding as a Fast Track Appeal. After the filing deadline passed for filing a factum under the Fast Track Appeal deadlines, the Respondent wrote a letter to the Case Management Officer requesting that the Appeal be struck pursuant to Rule 14.24(1). The Case Management Officer responded and advised that the Appeal was proceeding as a Standard Appeal, and no deadlines had been missed.
The Applicant then filed a pre-emptive Application to have the Court deny the Respondents’ request that the Appeal be struck, despite the fact that the Case Management Officer had already denied that request. The Applicant also applied to prevent a re-classification of the Appeal as a Fast Track Appeal, and further applied for a declaration that the Respondents had abused the process by waiting until the Fast Track Appeal deadline had passed before applying to re-classify the Appeal.
O’Ferrall J.A. ultimately re-classified the Appeal as a Fast Track Appeal, but also ordered that the Appeal would not be struck for failing to meet the Fast Track Appeal deadline to file a factum pursuant to Rule 14.34. The Court also allowed the factums to be 30 pages, instead of the 12 pages that would be allowed by a Fast Track Appeal.View CanLII Details