TD AUTO-FINANCE (CANADA) INC v SMITH-JOHNSON, 2016 ABCA 315
14.37: Single appeal judges
The Defendant applied to the Court of Appeal for an extension of time to file an Appeal. Summary Judgment was granted against the Defendant by a Master, which was subsequently upheld on Appeal to a Justice on July 4, 2016. The Applicant filed her Notice of Appeal on August 17, 2016, after previously attending at the Court Clerks on July 25 and August 3 to request a waiver of filing fees, which was denied.
Martin J.A. noted that Rule 14.37(2)(c) allows the Court of Appeal to extend the time to file an Appeal. Granting an extension depends on whether it is in the interest of justice to grant such relief. His Lordship noted that the Applicant must show that:
1. There was a bona fide intention to appeal while the right existed;
2. There was some special circumstance that would explain the delay;
3. The Respondent was not seriously prejudiced;
4. The Appellant had not taken the benefits of the Judgment from which the Appeal was sought; and
5. The Appeal would have a reasonable chance of success if allowed to proceed.
Martin J.A. held that the Defendant met the first four criteria, but did not meet the last. The question on Appeal was whether a payment which TD had requested toward a loan was a part payment or a full settlement. All facts and arguments put forward by the Defendant about a binding settlement were advanced, disputed and eventually rejected by both the Master and the Justice. Martin J.A. held that the Defendant had no reasonable chance of success, and as such the Application was denied and the Appeal itself was struck for being out of time.View CanLII Details