KONG v CONDOMINIUM CORPORATION NO 0313339

The Applicant sought an extension of time to appeal and, out of an abundance of caution, leave to appeal a Chambers Order that disposed of four Applications arising from three related Actions. The Notice of Appeal was filed approximately ten days late.

Ms. Kong alleged procedural unfairness. She argued that the Chambers Judge was biased, that the four Applications should have been heard separately rather than together, and that the absence of interpretation during opposing counsel’s submissions impaired her ability to reply.

Grosse J.A. confirmed that an extension of time under Rule 14.37(2)(c) is discretionary. Applying the factors from Cairns v Cairns, 1931 CanLII 471 (ABCA) (“Cairns”), the Court considered whether there was a bona fide intention to appeal, whether the delay was explained and non-prejudicial, whether the applicant had taken the benefit of the Judgment, and whether the proposed appeals had a reasonable chance of success.

The first three factors favoured the Applicant. Ms. Kong demonstrated an intention to appeal within the appeal period, reasonably awaited the transcript before proceeding, caused no meaningful prejudice through the short delay, and took no benefit from the Order.

The key issue was the fourth Cairns factor: whether each proposed Appeal had a reasonable chance of success. Justice Grosse considered each proposed Appeal separately.

Two of the Appeals did not have a reasonable chance of success. First, Ms. Kong could not appeal a King’s Bench Judge’s Order to another King’s Bench Judge, so that proposed Appeal could not succeed. Second, her proposed Appeal from the refusal to allow Questioning and Cross-Examination also had no reasonable chance of success. The Court also found that her allegation of bias was not supported by the record.

The other two proposed Appeals did raise arguable issues. One concerned an Order striking an earlier appeal. The Court held there was an arguable question whether that earlier appeal had already been withdrawn before it was struck, which could affect the related enhanced costs and filing restrictions. The other concerned an Order striking the later Action. On that issue, the Court found an arguable question because the Chambers Judge did not address an Amended Statement of Claim that included later allegations not found in the earlier proceedings. The Court also held that the procedural fairness argument was stronger in relation to that part of the Order.

Turning to Rule 14.5, Grosse J.A. held that permission to appeal was not required. The litigation restrictions imposed by the May 21 Order did not constitute a vexatious litigant order, and the appeals permitted to proceed were not limited to costs‑only appeals. The extension of time was therefore granted in part, and the permission Applications were dismissed as unnecessary.