veldhuis jA

1.2: Purpose and intention of these rules
14.8: Filing a notice of appeal

Case Summary

The Applicant sought an extension of time to Appeal an Order which dismissed his Application for Judicial Review. The Order was filed and entered on October 24, 2012, and served on the Applicant on October 5, 2012. The time extension Application was filed March 25, 2015.

The Court noted that the Applicant must show:

1.         That there was a bona fide intention to appeal while the right to appeal existed and that there was some special circumstance that would excuse or justify the failure to appeal;

2.         An explanation for the delay and that the other side was not so seriously prejudiced by the delay that it would be unjust to disturb the judgment, having regard to the position of both parties;

3.         That he has not taken the benefits of the judgment from which appeal is sought; and

4.         That the appeal would have a reasonable chance of success if allowed to proceed.

Justice Veldhuis noted that, generally, all four of the criteria must be satisfied, although the Court may exercise its discretion to grant an extension where there are unique and special circumstances, and it is in the interests of justice to do so. In this case, Justice Veldhuis held that there was no reasonable explanation for the delay of two and a half years in filing the Appeal. The Court rejected the Appellant’s argument that the delay was due to Rule 1.2 of the Alberta Rules of Court which obliges the parties to resolve their dispute using the quickest means and least possible expense, and encourages the parties to communicate openly. Instead of filing an Appeal within the deadline, the Applicant chose to request reconsiderations from various levels of Tribunal Decisions. The Court noted that, even if there was some evidence of confusion on the Applicant’s part, misunderstanding a pertinent Rule or procedure does not constitute a special circumstance which would reasonably explain such a delay in filing, particularly in the absence of due diligence. The Application to extend time was dismissed.

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