Court of Appeal Decision of the Week

Applications to Extend Time: “Minor Misstep” Filing Notice of Appeal Explains Delay

Case: Murphy v Haworth, 2016 ABCA 219 (CanLII)

Keywords: Application to Extend Time; Cairns Factors; Cairns v Cairns [1931] 4 DLR 819; Constructive Trust Remedy; Division of Property; Common Law Relationship

Synopsis:

The Applicant, Mr. Haworth and Ms. Murphy, the Respondent, live together in a common law relationship for approximately 17 years. The Applicant owns shares in a corporation established prior to the commencement of the relationship; sells the shares roughly a year before the relationship ends.

As part of the Respondent’s claim for division of property, she asserts an entitlement to constructive trust against proceeds from the sale of the Applicant’s corporate shares. The Court of Queen’s Bench of Alberta orders that half the proceeds be paid into the Applicant’s lawyer’s trust account. The Applicant applies to have the proceeds paid directly to him, but this application is dismissed.

Pursuant to Rule 14.8(2)(iii), the Applicant is required to file a notice of appeal within one month after the date of decision. The Applicant seeks an extension of time to file a notice of appeal from the decision, having filed his notice out of time.

The Court of Appeal grants the application to extend the time to file a notice of appeal; requires that both parties strictly adhere to “Fast Track Appeal deadlines” (subject to directions from the Case Management Officer). As is “customary”, Schutz J.A. orders the Applicant, as the party seeking the indulgence, to pay costs payable forthwith and in any event of the cause.

Importance:

Citing Attila Dogan Construction and Installation Co v AMEC Americas Ltd, 2015 ABCA 206 (CanLII) at para 4, Cairns v Cairns [1931] 4 DLR 819 at 826-827, and Sohal v Brar, 1998 ABCA 375 (CanLII), 223 AR 141 at para. 1, the Court of Appeal identified the following list of factors which are meant to guide a Court’s discretion to extend time:

  1. a bona fide intention to appeal held while the right to appeal existed;
  2. an explanation for the failure to appeal in time that serves to excuse or justify the lateness;
  3. an absence of serious prejudice such that it would not be unjust to disturb the judgment;
  4. the applicant must not have taken the benefits of the judgment under appeal; and
  5. a reasonable chance of success on the appeal, which might better be described as a reasonably arguable appeal.(See para. 5).

First, the Court of Appeal was satisfied, and the Respondent conceded the Applicant gave notice of an intention to appeal during the relevant time for appeal. There was no argument the Applicant had a bona fide intention to appeal. (See para. 10).

Next, for Schutz J.A., the Applicant’s notice of appeal was filed late due to “…the lawyer’s misunderstanding of the applicable deadlines”. (See para. 12). Despite this error, the delay in filing was relatively short. Pursuant to LC v Alberta, 2009 ABCA 77 (CanLII), 448 AR 293 at para. 10, Schutz J.A. found “…no single deficiency operates to dictate the outcome, especially when all the criteria have been satisfied except ‘a minor temporal error by counsel’ that would prejudice the client”. (See para. 13). Critically, since the delay was described as “minimal”, no significant prejudice resulted and the Respondent did not address the point.

With respect to the Applicant’s prospects of success on appeal, the Court of Appeal identified the major issue – the Applicant’s contention the Court of Queen’s Bench was incorrect in affirming the initial order and dismissing his application to allow payment of the money to himself rather than to his lawyer’s trust account. (See para. 20).

On this point the Respondent urged the Court to discourage interlocutory appeals; pointed out that deference is generally owed to interim orders of the Court of Queen’s Bench. Despite these arguments, the Court of Appeal found “…where the merits of the appeal are not absolutely hopeless or frivolous, the court may weigh the other factors and either refuse or allow an extension”. (See para. 23). [Emphasis added].

In the final analysis, the Court of Appeal was satisfied the “minor misstep” in the Applicant’s filing reasonably explained the delay in filing. The delay was “short”, “no harm resulted”, and there was clear evidence the Applicant intended to appeal. Furthermore, the Court did not conclude the Applicant’s appeal was hopeless or frivolous. (See para. 24). As such, the application to extend the time to file a notice of appeal was granted.

Counsel for the Respondent/Respondent: Mark Demas (Majeski & Company, Edmonton)

Counsel for the Applicant/Appellant: Timothy Snyder (Snyder & Associates LLP, Edmonton)

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Posted: Wednesday, August 17, 2016