WESTGROVE PLUMBING & HEATING LTD v BAYVIEW CONSTRUCTORS INC, 2011 ABCA 298
9.15: Setting aside, varying and discharging judgments and orders
The Applicants sought an Order extending the time to file a Notice of Appeal from an Order for Summary Judgment. O’Brien J. A. held that the applicable test for an enlargement of time remains the test set out in Cairns v Cairns,  4 DLR 819 at 826-827,  3 WWR 335. An applicant must show:
(a) That there was a bona fide intention to appeal before time expired and that some special circumstance would excuse or justify the failure to appeal;
(b) An explanation for the delay and an absence of prejudice to the other side, such that it would not be unjust to disturb the judgment;
(c) That the appellant has not taken the benefits of the judgment from which the appeal is sought; and
(d) That the appeal would have a reasonable chance of success if allowed to proceed.
The Applicant did not meet this test and the Application was dismissed.View CanLII Details