THE OWNERS: CONDOMINIUM PLAN NO 802 2845 v HAYMOUR, 2015 ABCA 234
13.5: Variation of time periods
14.23: Filing factums – standard appeals
14.47: Application to restore an appeal
14.65: Restoring appeals
15.16: Transitional provisions – Part 14
The Appellant, Haymour, sought to overturn an Order pronounced May 30, 2014, holding him in contempt for failure to comply with earlier Court Orders, and dismissing his Application to set aside an Order which allowed for the sale of his condominium while simultaneously granting leave to disburse the proceeds. On June 25, 2014, the Appellant filed his Notice of Appeal and the Appeal Record on October 17, 2014. On December 18, 2014, the Registrar of the Court of Appeal struck his Appeal pursuant to Rule 14.23(1)(a) for not filing his Factum within two months of filing the Appeal Record. On June 18, 2015, the Appellant filed an Application to restore his Appeal under Rule 14.47 and served it on June 19, 2015. The Application was returnable July 2, 2015.
Justice Wakeling held that the Appellant had failed to comply with Rule 14.47 by not filing, serving and making returnable his Application to restore the Appeal within six months. Accordingly, the only way for his Appeal to continue would be for the Court to exercise its discretion to extend this missed deadline pursuant to Rule 13.5.
Justice Wakeling held that, in order to persuade a Court to exercise its discretion under Rule 13.5, an Applicant needs a compelling reason. Owing to the long period to file an Application under Rule 14.47, the Appellant required a very compelling reason for failing to file within the stipulated period. The Appellant’s only excuse for missing the deadline was “medical reasons”. Wakeling J.A. did not find these reasons sufficient to extend the filing deadline.
Justice Wakeling commented that, even if the deadline had been extended, the Appellant’s Application would have been dismissed on account of the Appellant having missed the limitation period for filing an Appeal under the former Rule 506(1)(b). Rule 15.16(1) provides that the new Rules pertaining to Appeals came into force on September 1, 2014. Because the Appellant’s Appeal was filed on June 25, 2014, the old Rules for Appeals were still in force. Former Rule 506(1)(b) provided a twenty day period to file an Appeal from the date of the Order being signed, entered and served. The Appellant missed this period by four days. Furthermore, the Appellant had no reasonable prospects of success, as he provided no credible evidence to impugn the Chambers Judge’s Order. Justice Wakeling also held that an opposing party can reasonably expect that an Appeal deemed to be abandoned will not be restored in the absence of compelling reasons. Because of this, the Respondent would be prejudiced if the Appellant’s appeal were restored. The Application was dismissed.View CanLII Details