PATEL v PARIKH

The Applicant sought a stay pending the appeal of a Chambers Judge’s Order striking her appeal from an Arbitration Award after she failed to comply with a peremptory filing deadline. She argued the appeal should proceed despite the missed deadline because her counsel had mistakenly submitted the required materials to the wrong court.

The underlying arbitration concerned family property, including an Order requiring the sale of two Calgary properties. The Applicant filed the appeal of the Arbitration Award within the statutory time limit. However, she failed to meet a later peremptory deadline for filing appeal materials after her counsel mistakenly sent the materials for filing to the Alberta Court of Justice rather than the Court of King’s Bench. A Chambers Judge subsequently struck the appeal. After the Arbitration Award was registered as a Judgment, steps commenced to list the matrimonial home for sale. Subsequently, this Application was brought seeking a stay pending appeal while the matrimonial home was listed for sale.

Feehan J.A. applied the tripartite test for a stay pending appeal. The Court found that the threshold for a serious question was low and that the Applicant’s explanation for missing the deadline was reasonable. The proposed appeal was neither frivolous nor vexatious. The Court also found irreparable harm because the imminent sale of the matrimonial home could displace the Applicant and the parties’ young children, disrupting their housing stability and community ties. Finally, the balance of convenience favoured preserving the status quo while the appeal proceeded.

The Application for a stay pending appeal was granted. Feehan J.A. stayed the Chambers Judge’s Order striking the appeal.