Court of Appeal Decision of the Week

Applying the Test for Leave to Appeal

Case: Malig v Kaur, 2018 ABCA 435 (CanLII)

Keywords: Dog bite; Judgment Interest Act, RSA 2000, c J-1

Synopsis:

The Applicant Mr. Aurelio Malig is awarded damages of $15,127.89 and costs following a dog attack in the backyard of a home resided in by the Respondent/Applicant Ms. Chandni Singh. Both apply under Rule 14.5(1)(g) of the Alberta Rules of Court, Alta Reg 124/2010 for permission to appeal to the Court of Appeal.

Mr. Malig seeks permission to appeal the denial of pre-judgment interest, while Ms. Singh seeks both an extension of time and permission to appeal the merits of the decision which finds her to be an occupier of the property liable for the dog attack.

The Court of Appeal grants the Applicant Mr. Malig leave to appeal on the following questions:

  • Did the trial judge err in her interpretation and application of s 2 of the Judgment Interest Act, RSA 2000, c J-1(the “JIA”) in the circumstances of this case? and
  • Did trial judge err in denying an award of pre-judgement interest without hearing submissions?

The Respondent/Applicant Ms. Singh’s application for leave to appeal is dismissed.

Importance:

Citing Willier v McGurk, 2015 ABCA 299 (CanLII) at para 7, the Court of Appeal noted the test for permission to appeal under Rule 14.5(1)(g) requires

  1. a reasonable prospect of success on appeal having regard to the applicable standard of review; and
  2. an issue of law or jurisdiction of importance to the public. (See para. 8).

Mr. Malig sought to have the Court determine whether the Trial Judge erred in applying provisions concerning an award of pre-judgement interest under s 2(1) of the JIA (a section which confers discretion on a Trial Judge to decline to award pre-judgment interest based on a set of named considerations).

Mr. Malig’s appeal was based on the specific reasons given by the Trial Judge for not awarding pre-judgment interest – namely, “the length of time it took to prosecute the action without a reasonable explanation”. (See para. 9). Mr. Malig also asserted that the Trial Judge erred in exercising her discretion without providing an opportunity for him to be heard on the point.

Citing Malton v Attia, 2016 ABCA 130 (CanLII), the Court of Appeal noted that a Trial Judge’s assessment of damages had been found to be procedurally unfair in circumstances where a party was not given opportunity to respond to a Trial Judge’s “theory of damages”. (as quoted in para. 16).

As such, with respect to Mr. Malig’s application, the Court of Appeal found the proposed appeal raised the following question (which stood a “reasonable prospect” of success) (see para. 18):

…whether the parties were given the opportunity to address the question of pre-judgement [sic] interest prior to the trial judge ruling on the point. The question of whether the trial judge properly interpreted and applied her statutory discretion is interwoven with the question of procedural fairness. (See para. 17).

With respect to the question as to whether the issue raised by Mr. Malig was of importance to the public, the Court of Appeal stated as follows:

Although the amount of money involved in Mr. Malig’s claim for pre-judgement [sic] interest is relatively small, the trial judge’s exercise of her discretion in denying pre-judgment interest under s 2 of the JIA and her apparent failure to hear from the parties before rendering that decision, are issues of law that are of importance to the public. (See para. 23).

As for Ms. Singh’s application, the Court of Appeal noted that, given the standard of review that would be applied to the findings and conclusions of the Trial Judge (palpable and overriding error), “…her appeal has no reasonable chance of success” and further that there was no “…extricable legal error on the question of Ms. Singh’s liability as an occupier.” (See para. 22).

Finally, the Court of Appeal determined that Ms. Singh’s appeal did not raise an issue of law which is of general importance to the public. (See para. 24).

Counsel for the Applicant/Respondent: Elias Munshya (West End Legal Centre, Calgary)

Counsel for the Respondent Kamalpreet Kaur: no appearance

Counsel for the Respondent/Applicant Chandni Singh: in person

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Posted: Wednesday, January 09, 2019