In a recent Alberta Court of Appeal decision, the court offered a summary of factors it will consider in an application to extend the time to file a notice of appeal, where the applicant has missed the legislative deadline for doing so.

The case giving rise to the court’s decision was a family law matter. However, it should be noted that the principles set out by the court apply to all matters on appeal.

If you intend to appeal a decision, it is best to consult with a knowledgeable lawyer to ensure you meet the appropriate legal deadline for filing.

Applicant Misses Deadline to File Notice of Appeal

The applicant wanted to appeal an order granted on December 10, 2020.

However, the applicant only filed a notice of appeal on March 26, 2021. As such, it was filed out of time because, under rule 14.8(2)(iii) of the Alberta Rules of Court, a notice of appeal must be filed within one month after the date of the decision.

The applicant claimed that she suffered from medical ailments, which had delayed her filing the notice of appeal.

Factors that Guide the Court’s Discretion to Extend Time to Appeal

Based on case law, the Alberta Court of Appeal set out the factors guiding its discretion to extend time to appeal as follows:

  1. 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.

The court further explained that, in addition to the above factors, it may consider whether the proposed appeal is “likely to settle the law” or whether it is of interest only to the parties.

Court of Appeal Extends Deadline to Appeal  

Applying the relevant factors to the case at hand, the Court of Appeal ultimately granted the application to extend the time to file a notice of appeal to the date filed.

Among other considerations, the court held that the applicant had demonstrated a bona fide intention to appeal while the right to appeal existed. Further, the court was satisfied the applicant’s medical condition had prevented her from filing on time. Additionally, the court found that the delay had been short and no prejudice had resulted therefrom.

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