LALONDE v WADDELL

The Applicant and Respondent were married and parties to a divorce and family property division Action (the “Family Property Action”). However, the Respondent passed away intestate during the Family Property Action, and the Applicant was appointed as the Personal Representative of his Estate. The Applicant commenced proceedings to recover property transferred to their sons (the “Estate Action”). However, a pre-trial Judge, by their own initiative, made two procedural Orders in relation to the Actions: (1) an Order in the Family Property Action which set out procedural timelines and directed that the Family Property Action be resolved before the Estate Action (the “Family Property Order”), and (2) an Order in the Estate Action which adjourned the Trial sine die, permitting the Family Property Action to be resolved first.

The Applicant appealed the Family Property Order. However, she did not seek permission to appeal within the applicable time limit pursuant to Rule 14.8 because her counsel incorrectly believed permission to appeal was not required. The Applicant subsequently applied for permission to appeal and to extend the time to seek permission to appeal pursuant to Rules 13.5 and 14.5(1)(b). The Court acknowledged that determining whether permission to appeal should be granted is generally determined first prior to determining whether to extend the time to apply for permission to appeal.

Feth J.A. emphasized that Rule 14.5(1)(b) has been interpreted to broadly include scheduling and procedural orders that set out steps and deadlines; as such, permission to appeal is required for such Orders. The Court considered and applied the three-part test in determining whether to grant permission to appeal pursuant to Rule 14.5(1)(b). The Court found that the Applicant demonstrated the Appeal raised an important question of law in relation to the Wills and Succession Act, SA 2010, c W-12.2 and rights of a surviving spouse. Feth J.A. also noted that the Appeal raised procedural fairness concerns because the Family Property Order was issued without notice to the parties during a pre-trial conference for a separate Action. Appeal Justice Feth determined that the Appeal had a reasonable chance of success and that the delay caused by the Appeal would not unduly hinder the progress of the Family Property Action or prejudice the parties. Permission to appeal was granted.

In considering whether to grant an extension of time to apply for permission to appeal, the Court applied the test and factors set out in Cairns v Cairns, 1931 CanLII (AB CA). Feth J.A. determined that the Applicant had a bona fide intention to appeal within the timeline, given her timely filing of the Notice of Appeal and that the delay was caused by mistake. There was no significant prejudice to the Respondents or the Estate, and that the Appeal was prima facie meritorious. The Court used its discretion to extend the time limit.

The Applications for permission to appeal and an extension of time to seek permission to appeal were granted.