Case: Rana v Rana, 2020 ABCA 295 (CanLII)
Keywords: fast track appeal; restoring an appeal; Alberta Rules of Court, AR 124/2010
The Applicant, Mr. Salim Rana, appeals from an “enhanced costs award” (2/3rds of full indemnity) made against him following proceedings re execution of a power of attorney. (See para. 1). Mr. Rana files a Notice of Appeal which includes substantive issues related to the underlying decision, not costs. The Case Management Officer explains these issues cannot be raised again (having been the subject of a previous application to restore and a previous application for permission to appeal, both dismissed). (See para. 5).
The Case Management Officer categorizes Mr. Rana’s appeal as “fast track”, pursuant to Rule 14.14(2)(d) of the Alberta Rules of Court, AR 124/2010. Mr. Rana is advised of the deadlines and requirements, but does not file on time. His appeal is struck pursuant to Rules 14.17(1) and 14.64(a). (See para. 5).
Mr. Rana herein applies to restore his fast track appeal. He claims, inter alia, that he could not file on time due to COVID-19 (e.g. “the need to stay indoors, because of general inconvenience, and because many legal offices were closed”). (See para. 13).
Applying the test for restoring an appeal, the Court of Appeal dismisses the application, noting Mr. Rana’s “pattern of repeated failures to file documents…in a timely manner”. (See para. 3).
At paras. 6-8, the Court of Appeal provides a helpful summary of the test for restoring an appeal. For the Court, the test is discretionary, based on consideration of these factors:
- arguable merit to the appeal;
- explanation for the defect or delay which caused the appeal to be taken off the list;
- reasonable promptness in moving to cure the defect and have the appeal restored to the list;
- intention in time to proceed with the appeal; and
- lack of prejudice to the respondent (including length of delay). (See para. 6).
The Court noted that none of these factors are determinative. Rather, the Court will weigh each to determine “whether overall it is in the interests of justice to restore the appeal and allow the matter to proceed”. (See para. 8).
Further, citing Murphy v Haworth, 2016 ABCA 219 and The Owners: Condominium Plan No 982 6403 v CPI Crown Properties International Corporation, 2018 ABCA 232, the Court of Appeal noted that arguable merit is “a low bar: all the applicant must establish is that their appeal is not hopeless or frivolous”. (See para. 7).
With respect to Mr. Rana’s COVID 19 argument, the Court of Appeal noted “it is incorrect that Calgary lawyers were not available for hire in June and July, 2020; most firms were open for business, even if operating remotely.” (See para. 13).
As such, the Court of Appeal determined that, while Mr. Rana’s appeal was not “completely hopeless or frivolous”, his explanation for failing to file on time was “insufficient”. Balanced against the “prejudice” and further costs which would otherwise be incurred by the Respondent, the Court found “it is not in the interests of justice that Salim Rana’s appeal be restored to the record.” (See para. 16).
“And, in terms of “open for business”, so is Supreme Advocacy LLP—well, me at the office, other lawyers and staff colleagues remote. Any tips you need re phone-answering, coffee machine, copying, scanning, FedEx pick-up/cut-off times and delivery—call or email me—I’ve gone back to being a general practitioner. Not a “sole practitioner”, but definitely a general practitioner. And I’ve only burnt the coffee pot once (ok, twice).
Counsel for the Applicant (via videoconference): Salim Rana
Counsel for the Respondent (via videoconference): Erin Baker (Jensen Shawa Solomon Duguid Hawkes LLP, Calgary)