2.23: Assistance before the Court
4.22: Considerations for security for costs order
6.14: Appeal from master’s judgment or order
9.15: Setting aside, varying and discharging judgments and orders
10.44: Appeal to judge
13.5: Variation of time periods

Case Summary

The Plaintiffs appealed four separate but related Orders of a Master including Summary Judgment against the Plaintiffs on a Counterclaim, and also appealed an Assessment Officer’s Decision regarding costs. The Defendants made an Application for Security for Costs.

A preliminary issue was whether the Individual Plaintiff could appear on behalf of the Corporate Plaintiff. Justice Friesen noted that Rule 2.23(4) allowed some flexibility for a closely held corporation to access court processes and to have an agent speak on its behalf. Rule 2.23(4) did not, however, remove the requirement that a corporation must retain counsel to conduct legal proceedings. Accordingly, Justice Friesen put the Individual Plaintiff on notice that he would need to hire a lawyer to represent the Corporate Plaintiff, and that he must seek leave if we wished to represent the Corporate Plaintiff in argument or in audience before the Court in all future proceedings.

Justice Friesen noted that, pursuant to Rule 6.14, a Notice of Appeal from a Master’s Order must be filed and served within 10 days after the Order or Judgment is entered and served. Pursuant to Rule 10.44, an Assessment Officer’s Decision may be appealed within one month of the date of the Decision. Rule 13.5 provides the Court discretion to “stay, extend or shorten” any time period specified in Rules. Factors that guide the Court in exercising its discretion under Rule 13.5 include whether: there was a bona fide attention to Appeal while the right existed; there was an explanation for the failure to Appeal in time that excused or justified the lateness; there was an absence of serious prejudice such that it would not be unjust to disturb the Judgment; the Applicant took benefits of the Judgment under Appeal; and whether there was a reasonably arguable Appeal.

In relation to the Master’s earliest Order, the Plaintiffs failed to file a Notice of Appeal within the 10 days outlined in Rule 6.14 and they took advantage of the terms of the Order that benefitted them. Accordingly, Justice Friesen denied the Application for leave to file a late appeal and the Appeal of the Order itself was denied.

In relation to two of the Master’s Orders the Plaintiffs also failed to file a Notice of Appeal within 10 days — despite this, Justice Friesen found there was no prejudice to the Defendants arising from the delay. However, Her Ladyship dismissed the Appeals because, in both cases, the Plaintiffs provided no substantive argument as to why the Court should allow the Appeal, and in one case, the Plaintiffs failed to provide a record of proceedings, pursuant to Rule 6.14(5).

The Plaintiffs did file a Notice of Appeal of one of the Master’s Orders within the 10 day window proscribed by Rule 6.14. However, the Plaintiffs failed to provide any substantive argument as to why the Court should allow the Appeal. Accordingly, the Appeal was dismissed.

Similarly, the Plaintiffs failed to file a Notice of Appeal of an Assessment Officer's Decision in respect of the Costs Award within the appeal period as laid out in Rule 10.44. The first time the Plaintiffs clearly stated an intention to Appeal was several months after the expiration of the appeal period. As in the other orders, Justice Friesen confirmed that the Plaintiffs provided no explanation as to why a formal Appeal was not made within the appropriate time period. The Plaintiffs did not benefit from the costs award and there was no prejudice to the Defendants in allowing an extension of the time to appeal. There was a reasonably arguable Appeal.  However, the Plaintiffs, again, did not do anything they were required to do to pursue the Appeal, such as ordering a transcript of the Assessment Officer’s Decision or providing arguments as to why the Decision was wrong. Accordingly, Her Ladyship dismissed the Appeal.

The Defendant sought Security for Costs pursuant to Rule 4.22 which states that a party may be ordered to provide Security for Costs if the Court considers it just and reasonable to do so after considering: whether it was likely the Applicant would be able to enforce an Order or Judgment against assets in Alberta; the ability of the Responder to pay the costs award; the merits of the Action; whether granting the Order would prejudice the Respondent’s ability to continue the Action; and any other matter the Court considered appropriate. The Court considered the above elements and issued the requested Security for Costs Order.

Lastly, one of the previously issued Master’s Orders required the Defendants to return a Maserati to the Plaintiffs — the Defendants sought the return of that vehicle and argued that Rule 9.15(4) allowed the Court to vary or discharge an interlocutory order because information arose or was discovered after an order was made. After the Defendants highlighted new evidence to the Court, Her Ladyship directed the Plaintiffs to return the Maserati to the Defendants.

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