ONISHENKO v CHOLOWSKI, 2017 ABCA 238
14.8: Filing a notice of appeal
The Applicant, Onishenko sought to extend the time to file an Appeal of a Trial Decision concerning child guardianship, parenting time, and child support. The Applicant was represented by a Legal Aid lawyer at Trial, and had inquired after Trial about coverage by Legal Aid for an Appeal. However, Legal Aid informed the Applicant that its decision with respect to coverage could take up to 30 days. The Applicant did not file the Notice of Appeal immediately as she could not afford to order transcripts, but sought and received three ex parte orders from the Court of Queen’s Bench, which collectively purported to extend the time to Appeal to June 9, 2017. Coverage of the Appeal by Legal Aid was confirmed in early June, 2017.
Greckol J.A. noted that, under Rule 14.8(2)(iii), the time to file an Appeal expired one month after the date of Decision, and the Orders of the Court of Queen’s Bench purporting to extend the time to file an Appeal were ineffective because only the Court of Appeal was empowered extend the time to Appeal.
Justice Greckol stated that the considerations relevant to an Application to extend the time to Appeal are whether there is: (i) a bona fide intention to Appeal while the right existed, (ii) an explanation to justify or excuse the delay, (iii) the absence of serious prejudice to the Respondent, (iv) the absence of the Applicant taking the benefit of the Judgment being appealed, and (v) a reasonable chance of success on Appeal. Individually, none of the conditions are strictly necessary, as the Court has the discretion to extend time even if not all of the factors are met.
Justice Greckol considered each of the factors in the context of the facts in the Application, and held that, although the delay was explained in large part by processes out of the Applicant’s control, and no prejudice was occasioned by the delay, the proposed Appeal did not have a reasonable prospect of success. In the result, the Application to extend the time to appeal was dismissed.View CanLII Details