MCCORMACK v ALBERTA (ATTORNEY GENERAL), 2026 ABCA 272

This Application was brought under Rule 14.47 to restore an appeal that had been struck and subsequently deemed abandoned. The Applicant filed a Civil Notice of Appeal on January 5, 2026. On January 9, 2026, the Case Management Officer sent the standard Civil Appeal Commencement Letter (the “Letter”) advising that the Appeal was a Fast-Track Appeal with strict timelines, and warning that failure to file the Appeal Record or Factum by the applicable deadlines would result in the Appeal being struck.

After the Applicant failed to file the Appeal Record, the Registrar struck the Appeal on February 6, 2026, pursuant to Rules 14.17(1) and 14.64(a). On May 7, 2026, the Deputy Registrar confirmed that the Appeal had been deemed abandoned. The Applicant then applied to restore the Appeal, which the Court dismissed.

In determining whether to restore the Appeal, Fagnan J.A. considered the established factors: the arguable merit of the Appeal, the explanation for the delay, the promptness in curing the defect, the intention to proceed with the Appeal, and any prejudice to the Respondents. The Court found the Applicant's explanation for the delay, namely that he was overwhelmed as a self-represented litigant, was not compelling. The deadlines and consequences of non-compliance had been clearly communicated in the Letter, and the Applicant had previously had Appeals deemed abandoned for similar procedural failures.

Fagnan J.A. also found that the Applicant had not acted with reasonable promptness. Although he claimed he could not afford the restoration application fee, he provided no sworn evidence supporting that assertion. The Court further noted that he had not filed a draft Appeal Record or Factum, which would have demonstrated both an intention and ability to proceed.

With respect to arguable merit, Appeal Justice Fagan noted that the Applicant had not filed a draft Factum, leaving the Court to assess the proposed appeal based only on the Notice of Appeal and the hearing transcript.

The Notice of Appeal contained 22 largely unclear grounds of appeal, including vague allegations of Charter and constitutional breaches and requests for relief beyond the jurisdiction of the Courts. Fagnan J.A. therefore reviewed the rulings made by the Associate Chief Justice, including the denial of transcript fee waivers, an adjournment, recusal, appointment of an amicus curiae, case management, scheduling directions, and substitutional service, to determine whether any of the proposed grounds disclosed arguable merit.

Specifically, considering the transcript fee waiver requests, Fagnan J.A. reviewed the Associate Chief Justice's application of Rule 13.32. While the Rule permits certain court fees to be waived for individuals unable to pay, transcript fees are generally not among the fees eligible for waiver under the applicable Ministerial Order. Although a Court may have jurisdiction to waive transcript fees in exceptional circumstances where access to justice is compromised, Fagnan J.A. found no arguable error in the lower Court’s refusal to grant either a prospective fee waiver or the Applicant's requested blanket waiver of all transcript fees. The prospective waiver request was speculative and had become moot once the transcript was filed, and the Applicant identified no authority supporting the broad universal waiver he sought.

The Applicant was also seeking to appeal the denial of Substitutional Service, pursuant to Rule 11.28. Appeal Justice Fagnan found that the request was vague and unsupported by evidence establishing that ordinary service was impractical. Given the discretionary nature of Substitutional Service Orders and the absence of any reviewable error, the proposed ground of appeal lacked arguable merit.

Finally, although the Applicant argued that the Respondents would suffer little prejudice because the delay was short and the transcripts had been filed, the Court emphasized that successful parties are entitled to expect finality in litigation. Weighing all relevant factors together, Fagnan J.A. concluded that restoring the Appeal would not be in the interests of justice. The Applicant had failed to provide a compelling explanation for the delay, had not acted with reasonable promptness to cure the defects, and had failed to establish that any of the proposed grounds of appeal met even the low threshold of arguable merit.