13.4: Counting months and years
14.36: Case management officers
14.8: Filing a notice of appeal
14.37: Single appeal judges

Case Summary

The Applicant attempted to apply for an Appeal of a Judicial Review Decision. The Case Management Office (“CMO”) refused to file the Applicant’s Notice of Appeal, claiming that it was filed outside of the time allowed. The Applicant applied under Rule 14.36(3) to rescind the CMO decision that the Appeal was filed outside of the time allowed and applied to extend the Appeal deadline.

The Court considered Rule 14.8(2)(iii) in calculating the time for an Appeal, where it states that an Appeal must be made within one month after the date of the Decision. When counting one month from the date of Decision, the Court applied Rule 13.4(1) which says the deadline is the same-numbered day in the subsequent month.

There was a dispute as to when the “date of decision” as described in Rule 14.8(1) occurred in this case. The Chambers Judge had released additional reasons to dismiss an Application to reopen Costs, lending to the confusion. The Court of Appeal found these additional reasons did not extend the deadline for the Notice of Appeal as they “did not contribute to or change” the substantive reasons. The Appeal was filed out of time.

When a Notice of Appeal is filed outside of the time limit, a single Judge has the discretion to extend the deadline or to strike the Appeal under Rule 14.37(2)(c).

In considering whether to extend the deadline, the Court stated the factors to grant an extension in the “interests of justice”: (1) the Applicant must have a bona fide intention to Appeal; (2) the Applicant must have a reasonable chance of success; and (3) the Applicant must have an explanation for their delay. Further, the other parties to the Appeal must not suffer prejudice from allowing the Appeal, nor can the Applicant take an advantage from the extension.

Under the second factor, the Court considered whether the Applicant’s Appeal would have a reasonable chance of success. The onus is on the Applicant to show the likelihood of success. This requires more than a mere assertion by the Applicant but is equivalent to considering whether the Appeal is hopeless. The Court found the Appeal had no reasonable likelihood of success, and therefore, it was not in the interests of justice to grant the time extension. The Applicant’s Notice of Appeal was filed out of time and Justice Khullar refused to grant the extension.

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