14.5: Appeals only with permission

Case Summary

In this case, eight Appeals and multiple Applications relating to case management Orders from litigation involving Dale McMullen and the Piikani Nation, among many others, were heard together. The litigation had commenced over ten years ago and was brought into case management in 2012 due to the proliferation of relating Actions and Applications. In 2013 it was ordered that leave of the Court must be obtained before filing any Applications. The Appeals and Applications in this case all arose from various case management Decisions setting out timelines, the sequence in which Applications would be heard, denying Mr. McMullen leave to bring Applications, and granting other parties leave to bring Applications.

Some the Appeals brought by Mr. McMullen sought to obtain substantive relief when a substantive Decision had not been made below. The Court noted that Appeals may only be taken from Decisions that have been made. Mr. McMullen also sought to have the merits of various issues determined on Appeal before they were determined at a Trial, and the Court of Appeal held that these were collateral attacks. The Court of Appeal dismissed the Appeals and Applications that they considered to be premature and collateral attacks.

The Court explained that the Rules discourage Appeals of pre-Trial Orders. Per Rule 14.5, there was is right of appeal to the Court of Appeal for any pre-Trial decision regarding adjournments, time periods or time limits, or for decisions on Security for Costs. On this basis, the Appeals of timeline and scheduling Orders were dismissed.

The Court then went on to examine the Appeals of the Case Management Judge’s Decision to deny leave to allow Applications in six instances. Each Appeal was dismissed because the underlying Application had no hope of success, was advanced on grounds that were bare allegations, or were out of time.

The only Application that was granted for was for an Order for the sealing of the Appeal Record, Joint Factum and Joint Extracts of Key Evidence that Mr. McMullen filed in violation of a restricted Court access Order.

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