Court of Appeal Decision of the Week

“Restoring” Appeals in Court of Appeal

Case: J.E. v Alberta (Workers’ Compensation Board), 2016 ABCA 147 (CanLII)

Keywords: Application to Restore Appeal; Self-Represented Litigants;

Synopsis:

The Applicant takes issue with medical diagnoses relating to whether or not he has dementia produced as part of his claim for Worker’s Compensation Board (WCB) compensation. The Chambers Judge below notes J.E. sought to have the cause of his cognitive issues confirmed through civil proceedings; concludes as follows on the point: “…this Court will never have jurisdiction in the context of this litigation to examine the various diagnoses and pronounce on the cause of Mr. JE’s cognitive difficulties” (2015 ABQB 460 at para. 75) (quoted at para. 8 herein).

The Applicant, J.E., applies to restore his appeal (struck by the Registrar for failure to file an appeal record). The Applicant reports taking significant steps to retain counsel – including refinancing his home to raise fees – but ultimately is late filing his appeal record.

The Court of Appeal dismisses the application to restore; determines the appeal “could never succeed” and “it would be a waste of the parties’ resources” to continue.

Importance:

The Court of Appeal identified a list of 5 factors to be considered when courts are tasked with deciding whether to restore an appeal:

  1. whether there is arguable merit to the appeal;
  2. an explanation for the delay which caused the appeal to be taken off the list;
  3. reasonable promptness in moving to cure the defect and have the appeal restored to the list;
  4. an intention to proceed with the appeal; and
  5. lack of prejudice to the respondents (including length of delay).

Veldhuis J.A. explained the Court enjoys wide discretion to restore after having considered the above listed factors, adding “…the failure by the applicant to meet one of them is not fatal” (see para. 6).

Citing Garry v Canada (Minister of Justice), 2007 ABCA 234 (CanLII), 429 AR 292; 707739 Alberta Ltd v Phillips, 2001 ABCA 219 (CanLII) at para 13, 286 AR 367; James v Northern Lakes College (Board of Governors), 2013 ABCA 408 (CanLII), 566 AR 20, the Court of Appeal also states these factors are to be weighed by the Court to determine whether it is “in the interests of justice” to permit the appeal to proceed.

In the present case, having decided the Applicant had always intended to proceed with the appeal, Veldhuis J.A.’s analysis turned to whether there were any arguable merits to the appeal. The Court of Appeal found the Applicant failed to identify any errors in the decision of the chambers judge below: “Nothing has changed in the submissions before me to suggest there is any arguable merit to the appeal in this case” (at para. 9). As such, the Court determined “[t]he proper administration of justice requires [the] matter be concluded”.

Counsel for the Applicant: J.E. in Person

Counsel for the Respondent: S.T. Dolgoy (Department of Justice and Solicitor General (AB)) Edmonton, Alberta

Posted: Wednesday, May 11, 2016