3.15: Originating application for judicial review
13.5: Variation of time periods
Rule 825: Criminal Matters - Civil Rules Apply
Rule 830: Criminal Matters - Certiorari (Motion within 6 months)

Case Summary

On August 19, 2010 a search warrant was granted against the Plaintiff, who then applied for Judicial Review of the search warrant at the Federal Court, and was ultimately unsuccessful. Following the Decision of the Federal Court of Appeal, issued on April 24, 2012, the Plaintiff made the present Application to set aside the search warrant in the Court of Queen’s Bench.

Because it was not expressly stated in the materials, Strekaf J. assumed that the Application was brought under either Rule 3.15 or Rules 830 and 825, pursuant to Part 60 of the Rules that apply in relation to criminal matters. The Defendants argued that the Application was not brought within the six month time period contemplated by Rules 3.15 and 830. In response to the Defendant’s argument, the Plaintiff brought a preliminary Application to extend the time for filing its Application to set aside the search warrant.

Rule 3.15 requires that an Originating Application for Judicial Review be brought within 6 months after the date of the decision or act. Rule 13.5, which permits the Court to extend any time period specified in the Rules, does not apply to Rule 3.15. As a result, Strekaf J. held that the Application, to the extent it was brought under Rule 3.15, was out of time as the Court had no jurisdiction to extend the six month time period contemplated by the Rule. Strekaf J. then held that Rule 13.5 granted the Court the ability to extend the time period considered under Rule 830, and proceeded to apply the test outlined in Cairns v Cairns, [1931] 26 Alta LR 69, used to determine whether to extend the timeline for filing an Appeal. Justice Strekaf held that the Application did not have a reasonable prospect of success and denied the Plaintiff’s preliminary Application to extend the time for bringing the Application pursuant to Rule 830. As a result, the Application was dismissed.

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