MORIN ESTATE (RE), 2021 ABCA 35
1.2: Purpose and intention of these rules
14.14: Fast track appeals
14.47: Application to restore an appeal
14.5: Appeals only with permission
The Applicants applied, pursuant to Rule 14.47, to restore a Fast Track Appeal (brought pursuant to Rule 14.14) that had been struck for failing to file the Appeal Record.
Veldhuis J.A. referred to Prochazka v Alberta (Maintenance Enforcement Program), 2014 ABCA 448, which discusses how restoring an Appeal is a discretionary decision that engages the following considerations: (a) whether there is merit to the Appeal; (b) an explanation for the defect or delay; (c) whether the Applicant moved with reasonable promptness to have the Appeal restored to the list; (d) whether the Applicant had an intention in time to proceed with the Appeal; and (e) lack of prejudice to the Respondents (including length of delay).
The Court stated that no single factor is determinative, and that these considerations must be weighed collectively with a view to determining if allowing the Appeal is in the interests of justice.
Veldhuis J.A. held that on the facts there was no merit to the Applicants’ Appeal. No evidence was submitted to explain the delay, to establish that the Applicants moved with reasonable promptness, or to substantiate that the Applicants had an intention in time to proceed with the Appeal.
Counsel for the Applicants suggested that they wanted to “wait and see” the outcome of a related Summary Dismissal Application. In response, the Court stated that taking a “wait and see” approach to an Appeal is an inappropriate contravention of Rule 1.2.
The Respondent argued that she was prejudiced by the Applicants’ flagrant litigation misconduct in repeatedly disregarding the Rules and procedural processes, as was established in a previous ruling by the Case Management Judge. The Court took this litigation misconduct into consideration in determining that it was not in the interests of justice to permit the Appeal.
Veldhuis J.A. also noted that the amount of the dispute was $7,500 and that pursuant to Rule 14.5(1)(g); permission to appeal is required for any Decision where the controversy in the Appeal can be estimated in money and does not exceed the sum of $25,000. Due to the cumulative weight of these factors, the Application to restore the Appeal was dismissed.View CanLII Details