DE MEYER v PEDORA

The case arises from a family law arbitration award. The Applicant sought to Appeal the award but filed incorrect documents. The clerk had crossed out the word “Originating” on the title of the Originating Application provided by the Applicant and filled the document in the existing action number. The Respondent took the position that this error could not or should not be cured. If this were the case, the Applicant would be out of time to file a new document, and their Appeal would be struck.

In exercising any curative power under Rule 1.5, Hollins J. emphasized that courts must not, in doing so, cause any irreparable damages to any party. Further, granting relief under Rule 1.5(1) must be in the overall interests of justice.

The Court contrasted situations where the wrong initiating document was used and held that not all defects could be cured. Where a party filed a document that was not a proper commencing document and it provided no notice of the grounds or substance of the proceeding, the defect was jurisdictional and could not be remedied under Rule 3.2, as doing so would have effectively extended a time limit contrary to Rule 1.5.

Justice Hollins noted that this was not a case, as was argued, of overriding a statute. This was due to the fact that the Arbitration Act only speaks to the time limit for appealing an award and does not specify the kind of document required to be filed to commence an appeal. Rule 3.2(5) states, where appeal proceeding are undertaken, but no procedure is provided in the statute, the appeal must be made by originating application. Between Rule 3.2(5) and Rule 1.5, it was clear that the Court had jurisdiction to relieve against the consequences of technical contraventions of the Rules, as opposed to statutes. Justice Hollins concluded that if not, the use of Rule 3.2(5) would be unimaginably narrow.

Hollins J. dismissed the Respondents cross-application to strike the Appeal, finding that the Court could cure the defect.