Court of Appeal Decision of the Week

Better Late Than Never: Appeal Restoration Criteria & the Court of Appeal

Case: Barry v. Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee), 2016 ABCA 89 (CanLII)

Keywords: Appeal Restoration; Alberta Rules of Court, Alta Reg 124/2010; Record of Proceedings; Regulated Accounting Profession Act, RSA 2000, c R-12

Synopsis:

A discipline tribunal of the Institute of Chartered Accountants finds Mr. Barry guilty of misconduct; imposes sanctions including:

  1. cancellation of Mr. Barry’s registration;
  2. declaration that he may not apply for reinstatement within the four-year period following cancellation;
  3. a $40,000 fine; and
  4. an order to pay costs associated with the investigation and hearing.

Pursuant to s. 101 of the Regulated Accounting Profession Act, RSA 2000, c R-12, Mr. Barry appeals to an appeal tribunal who conclude one allegation has not been established and reduces the fine to $30,000. None of the other sanctions are adjusted.

Mr. Barry serves notice of appeal to the Court of Appeal of Alberta. Months later, counsel for Mr. Barry contacts the appeal tribunal secretary to inquire about the status of the record of proceedings (defined in s. 1(xx) of the Chartered Professional Accountants Act; includes transcript of the proceedings). Counsel assumes service of the notice of appeal on the Chartered Professional Accountants of Alberta will cause preparation of the appropriate record by the tribunal secretary. It is not the appeal tribunal secretary’s practice to do so.

Upon realization of the incorrect assumption, a record of proceedings is promptly produced – however, the materials are not in a suitable format for filing as part of Mr. Barry’s appeal record. Neither Transcript Management Services nor a private court reporting service is able to convert the record of proceedings before the deadline under Rule 14.16(3)(b) of the Alberta Rules of Court.

The Registrar accordingly strikes Mr. Barry’s appeal for failure to file the appeal record in the period set out in the Alberta Rules of Court.

Counsel for Mr. Barry provides the Registry of the Court of Appeal a proposed appeal record and files an application to restore the appeal. Supporting materials provide background information and explain why Mr. Barry failed to file on time.

At the Court of Appeal, counsel for Mr. Barry informs the Court he is in a position to file the appeal record immediately with a factum to follow within two weeks. The application for restoration is granted upon payment of a $200 restoration fee (see Alberta Rules of Court, Rule 14.65(1)(b)).

Importance:

The Court of Appeal affirmed the principle that an appeal may be restored if it is in the interest of justice to do so (see, for example, Settlement Lenders Inc. v. Blicharz, 2016 ABCA 33 (CanLII), at para. 13; Gould v. Gould, 2014 ABCA 144 (CanLII), at para. 4) and listed criteria to assist in defining that standard as follows:

  1. Is there any reason to conclude the applicant, at any time after filing the notice of appeal, did not intend to prosecute the appeal? A statement from the applicant that he or she has always intended to prosecute the appeal would, in most cases, be probative. If the court has reason to doubt the applicant’s commitment to the appeal, there is no reason to restore it.
  2. Has the applicant provided an explanation for the deficiency that prompted the Registrar to strike the appeal? If so, is the explanation consistent with an intention on the part of the applicant to advance the appeal?
  3. Has the applicant moved with sufficient expedition to cure the defect, taking into account the nature of the defect?
  4. Are there arguable grounds in support of an appeal? Is the likelihood of success high enough to conclude that it is not a frivolous appeal? It makes no sense to breathe life into an appeal that is almost certain to fail. An appeal that is almost certain to fail should be laid to rest without any more private and public resources devoted to it.
  5. Will the restoration of the appeal cause the respondent any prejudice? If so, is it appropriate to require the respondent to endure this prejudice? (Note: see para. 27 of the judgment and citations for a useful list of associated caselaw).

The Court of Appeal found Mr. Barry’s application met the above listed restoration criteria. There was no reason to doubt his intention to prosecute the appeal. The fact counsel was unable to file the appeal record on time was not attributable to the client’s lack of interest – rather, for the Court, this was based on an incorrect expectation the appeal tribunal secretary would commence preparation of the record immediately, the inability of professional service providers to produce an appropriate appeal record, and a lack of in-house capacity to immediately prepare the record. Furthermore, the Court found Mr. Barry’s appeal was not frivolous (although this was described as a low standard to meet). Finally, the Court found granting the application for restoration would cause no prejudice to the respondent as its ability to defend was not impaired. As such, it was in the interest of justice to restore Mr. Barry’s appeal.

Counsel for the Applicant: Roger Stephens (Simons & Stephens) Edmonton

Counsel for the Respondent: Nigel Forster (Bishop & McKenzie LLP) Edmonton

Posted: Wednesday, April 06, 2016