PREZES v CANNAMM OTS LIMITED PARTNERSHIP

This was an Appeal from an Order of a Chambers Judge dismissing an Appeal from an Applications Judge’s Order and allowing the Respondent’s Cross-Application.

The Appellant obtained an ex parte Order directing the Respondent to provide a biological sample (the “Sample”) for further testing, without notice to the Respondent. The Respondent advised that it no longer had the Sample, as it had already been sent for independent testing. The Applications Judge set aside the ex parte Order for lack of notice and dismissed the Appellant’s subsequent Application for additional relief, finding no evidentiary basis (the “Dismissal”).

The Appellant filed an Appeal of the Dismissal to the Court of King’s Bench (the “Appeal”). The Respondent cross-applied to dismiss the Appeal as out of time pursuant to Rule 6.14(2). The Chambers Judge granted the Cross-Application and dismissed the Appeal, noting the absence of evidence explaining the delay and finding that the Appeal lacked merit.

The Appellant argued that the Appeal should not have been dismissed, attributing the delay to incorrect information provided by Registry staff regarding the filing deadline. The Court of Appeal highlighted that decisions to extend time to file an Appeal are discretionary and informed by factors including a bona fide intention to appeal while the right existed, justification for the delay, absence of prejudice to the Respondent, whether the Applicant benefited from the Judgment, and whether the Appeal had a reasonable prospect of success.

The Court held that the absence of merit in the Appeal was decisive, noting that extending time for a hopeless appeal serves no purpose and that appellate intervention requires a palpable and overriding error. The Court found no error in the Chambers Judge’s conclusion that the Appeal had no reasonable prospect of success, as the Respondent did not possess the Sample and there was no evidentiary basis for the relief sought. The Court further noted that permission to Appeal may be required pursuant to Rule 14.5(1)(b) but declined to decide this issue as no submissions on that point were provided.

In the result, the Court dismissed the Appeal, awarded costs of $1,000 to the Respondent, and invoked Rule 9.4(2)(c) to prepare the resulting Order.