OZARK RESOURCES LTD v TERIC POWER LTD, 2020 ABCA 51
1.2: Purpose and intention of these rules
6.3: Applications generally
6.4: Applications without notice
14.48: Stay pending appeal
14.5: Appeals only with permission
14.71: Interlocutory decisions
This was an Application to restore an Appeal, to stay a lower Court’s Order pending the Appeal, and, in the alternative, for permission to Appeal. All of the Applicant’s Applications were dismissed.
The Applicant filed a Notice of Appeal arguing, amongst other issues, that the Chambers Judge erred in failing to hear the Applicant and denying the Applicant’s request for an adjournment, in granting the Order the Respondent sought notwithstanding their failure to comply with Rule 6.3. Rule 6.3 states that an Application must be in an appropriate form, list certain things, and be filed and served on all parties and people affected by the Application five or more days before it was to be heard.
The Applicant argued that permission was not required to Appeal. The Court, however, found that the Appeal from the adjournment clearly fell under Rule 14.5(1)(b), and therefore permission was required. Regardless, the Appeal was moot.
In addressing the Applicant’s alternative argument, Her Ladyship considered the test for granting permission to Appeal under Rule 14.5(1)(b). The test asked whether the Appeal raised serious questions of general importance, and whether it had a reasonable chance of success. Justice Antonio noted that the Applicant’s argument that the Chambers Judge erred in proceeding notwithstanding the Respondent’s failure to comply with Rule 6.3, failed to consider Rule 6.4 which permits Judges to proceed with an Application despite Rule 6.3 if they were satisfied that no notice was necessary, or that serving notice of the Application could cause the Applicant undue hardship. Justice Antonio noted that pursuant to Rule 1.2, the role of a Chambers Judge is to balance timeliness and cost-effectiveness when making a fair determination. Her Ladyship determined that none of the Applicant’s arguments had a reasonable chance of success.
The Applicant also sought to have two Orders stayed. Rule 14.48 allows for stays of Applications pending Appeal; however there was no Appeal of one of the Orders, so it could not be stayed. The Applicant had argued that Rule 14.71 allowed the Court to stay an Order despite there having been no Appeal. There was, however, no remaining context in which to consider Rule 14.71, and the Applications for stays were dismissed.View CanLII Details