SOCHOWSKI v LAW SOCIETY OF ALBERTA

This decision arose from an Application to extend the time for filing and serving a Notice of Appeal pursuant to Rule 14.8. The Applicant sought to appeal a Chambers decision dismissing his application for Judicial Review of a decision of the Law Society of Alberta concerning a complaint he had made against his former spouse’s lawyer. The Notice of Appeal was filed two days after the applicable deadline and served five days late. The Applicant attributed the delay to incorrect legal advice regarding the filing deadline and his misunderstanding of the Rules governing service.

Friesen J.A. considered the factors for an extension of time to appeal, including whether the Applicant had a bona fide intention to appeal, whether special circumstances explained the delay, whether the Respondent had suffered prejudice, whether the Applicant had benefitted from the Judgment, and whether the proposed Appeal had a reasonable prospect of success. The Court reviewed the authorities confirming that the merits component of the test imposed a low threshold and required only that the proposed Appeal be arguable rather than likely to succeed. Friesen J.A. also noted that, on an appeal from Judicial Review, an Appellate Court effectively stepped into the shoes of the reviewing Judge and applied no deference in selecting or applying the standard of review.

Applying these principles, the Court concluded that the Applicant had satisfied the first four criteria for an extension of time. Friesen J.A. accepted that the Applicant had intended to appeal, that his reliance on incorrect legal advice constituted a special circumstance explaining the delay, that the delays in filing and service were minor, that no prejudice had been suffered by the Law Society, and that the Applicant had not benefitted from the Judgment. With respect to the merits criterion, the Court held that the Applicant’s proposed procedural fairness ground was arguable and therefore met the low threshold required on an extension Application. Friesen J.A. was not satisfied that the Appeal had no prospect of success and therefore granted the Application to extend the time for filing and serving the Notice of Appeal.