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, [1931] 4 DLR 819 at 826-827, [1931] 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.