The Applicant sought permission to Appeal a Costs Award and applied to extend the time to file as the time to apply for permission to Appeal had expired. After the Applicant was unsuccessful in seeking a permanent injunction, the Respondent sought a Costs Award of 35% of its solicitor and own client Costs, totalling approximately $16,100. The Chambers Judge granted Costs payable forthwith in the amount of $15,425, concluding that Schedule C Costs were not “overly helpful” because they did not adequately capture the work done or the quantum of value at issue. The Applicant argued that the Chambers Judge erred in ordering Costs payable forthwith rather than in the cause per Rules 10.29 and 10.33, erred in departing from Schedule C Costs, and erred by misinterpreting McAllister v Calgary (City), 2021 ABCA 25.

The Court noted that when an Application for permission to Appeal is not filed within the time limit, Rule 14.37 stipulates that a single Judge may extend the time. The factors that guide the Court’s determination are set out in Cairns v Cairns, 1931 CanLII 471 (AB CA) (“Cairns”) but they do not set rigid requirements and ultimately the Court has discretion to extend time when justice requires it. Further, since the Application for permission to Appeal was related to Costs of less than $25,000, Rules 14.5(1)(e) and (g) applied, and permission is required from a single Judge. The test for permission to Appeal a Costs Award pursuant to Rule 14.5(1)(e) is set out in Brill v Brill, 2017 ABCA 235, and the test for permission to Appeal a Costs Award pursuant to Rule 14.5(1)(g) is set out in Rocks v Ian Savage Professional Corporation, 2015 ABCA 77.

With respect to the Application for an extension of time, the Court held that the majority of the Cairns factors weighed in favour of granting an extension because the Application for permission to Appeal was uploaded 38 minutes after the deadline, which was a result of the Applicant’s counsel experiencing a severe illness and technical difficulties while uploading. However, the tests for permission to Appeal under both Rule 14.5(1)(e) and (g) also requires an assessment of the arguable merit of the proposed Appeal. Therefore, both Applications turned on a consideration of the merits of the Appeal. The Court held that the proposed grounds of Appeal did not advance a reasonably arguable Appeal as it was within the Chambers Judge’s discretion to conclude that Costs were appropriately payable forthwith and it was open to the Chambers Judge to conclude that Schedule C Costs were insufficient because the matter required cross-examinations and briefs. The Applicant also argued that the Appeal raised issues of importance to the parties and in general because it raised issues about the consistent application of Rules 10.2, 10.31, and 10.33. The Court rejected this argument, holding that the Chambers Judge’s decision was fact-specific and discretionary. In the result, Ho J.A. held that “[e]ven if I exercised my discretion and granted an extension of time, I would dismiss the application for permission to appeal.”