For people who aren’t involved in the law on a day-to-day basis, dealing with a lawsuit or litigation can seem like a daunting effort. The costs and time associated with legal conflict can be significant. This is one of the reasons why working with an experienced lawyer is so important when dealing with a legal issue. This can be true even when someone might think the issue is not very complicated or something they can handle independently. While that feeling is understandable, the layperson might not be aware of many things, such as formalities required by the court or critical timelines.

In a recent residential real estate matter between a condominium owner and the condo board (the “applicant” and the “respondent,” respectively), the applicant sought to challenge an order by seeking leave to the Court of Appeal of Alberta. The court’s decision highlights the importance of working with an experienced real estate or litigation lawyer when such issues arise.

Condo owner is unsuccessful before Applications Judge

The issue arose when the applicant’s late father, who owned the condo unit, was notified that he had been levied an assessment along with other unit owners to help pay for renovations. This was followed up by a notice in November 2019 that explained the owner could either pay a lump sum within a set period or pay higher monthly condominium fees over five years, which included interest on the amount owed.

The applicant and his father did not meet the lump sum deadline. This led the respondent to charge the applicant’s father higher condo fees, raising the monthly amount from $250 to $380.97. Despite this, the applicant or his father (it was unclear who was writing the cheques) continued to provide post-dated $250 cheques. The respondent rejected these as insufficient and chose not to cash them. This led to the debt increasing with interest over time.

By November 2021, two years after the payment notice arrived, the respondent brought a foreclosure action against the applicant. The applicant told the court that he offered to pay the outstanding lump sum but was unwilling to pay interest or costs to the respondent.

The respondent did not accept the offer and sought summary judgment on the debt ten months later. Before the hearing, however, the applicant paid the outstanding lump sum but again insisted he was unwilling to pay interest or costs. The summary judgment hearing led to the application judge granting an order for $2,499.12 and costs on a “reasonable solicitor-client basis.”

A formal order was served on December 2, 2022. This time, the applicant was told he had 10 days to file a notice of appeal based on the Application Judge’s decision. The time frame to do so came and went, with the appeal period expiring on December 12, 2022. The applicant would tell the court that he did not appeal until he heard the amount of costs was shared. He told the court he thought that if the costs were reasonable, he could just pay and forget them.

Costs of over $20,000 lead to desire to appeal

The assessment officer came back with costs totalling $20,494.77. The applicant was not present at the hearing, and as before, the decision was not appealed. When the applicant finally learned of the amount, he was surprised. He said he opposed any costs order from the start. Still, he said the application judge failed to consider the applicant’s pre-litigation offers, which should have reduced or eliminated any costs. The court told him that the time to appeal had closed and that he would have to bring an application to extend the time to appeal before moving further.

In March 2023, the applicant began this process, but in the meantime, the respondent began enforcement proceedings on the outstanding amount, including garnishing wages and taking steps to sell the condo. It was March 20, 2024, by the time the applicant filed a proper application, and it was the first time he had retained a lawyer to assist.

A Chambers Judge heard the matter on March 28 of that year and dismissed it.

The Chambers Judge stated that the matter was rejected for two main reasons. The first was the delay between the appeal deadline (December 12, 2022) and the application (March 28, 2024). During this time, the applicant did little to proceed with the appeal. Secondly, the Judge did not feel the applicant had a reasonable chance of success. The applicant appealed this decision, landing us before the Court of Appeal.

Is the appeal related to costs only?

The court wrote that there were some disagreements about whether the appeal was related only to costs, which would lead to needing permission to appeal. The applicant said the appeal does concern costs but also concerns the original summary judgment and the Judge’s supposed failure to consider offers to settle. If the appeal was related to a substantive decision and costs, no permission to appeal would be needed. In this case, the court found that permission to appeal was still needed.

The court wrote that the applicant must show that the refusal to extend the time to appeal reflects an arguable error of law, but the applicant had not done so. The applicant’s submissions do not attempt to show that the chamber’s judge made an error in law. The court found that while the applicant had reasons for his delay, mainly that he was working abroad from 2011-2024, returning to Alberta only sporadically, he was told several times about the deadlines for appeal.

While we can’t comment on whether the applicant would have succeeded on appeal had he met the deadline, the decision highlights the importance of working with a skilled lawyer to ensure that every avenue is pursued.

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