Feb 26, 2016

This matter primarily relates to an application to extend the time to file an appeal.

Facts: The applicant’s late husband passed away and she alleged negligence in the care and treatment he received from his physicians and Alberta Health Services. Her claims against all but one physician were dismissed on summary dismissal, as well as those against Alberta Health Services. The chambers judge issued written reasons for the December 21, 2015 judgment, which were received by the applicant on January 5, 2016. The applicant did not, however, receive a filed copy of the Order until January 25, 2016, at which point she filed her Notice to Appeal on the same day (4 days late). The applicant now seeks an extension of time to file her appeal as well as an order permitting her to amend her Notice of Appeal. An application to stay the costs award in the Order was also made, but was dismissed as it was premature.

Analysis: The applicant’s grounds of appeal challenged the chambers judge’s assessment of facts, her application of the law to those facts, and her decision to grant summary dismissal. Absent palpable and overriding error, these issues are entitled to appellate deference.

To receive an extension of time to appeal, the applicant must show:

  • That there was a bona fide intention to appeal, and that there was some special circumstance that would excuse or justify the failure to appeal;
  • That the respondents were not so seriously prejudiced by the delay that it would be unjust to disturb the judgment, having regard to the position of both parties;
  • That the appellant has not taken the benefits of the judgment from which appeal is sought; and
  • That the appeal would have a reasonable chance of success if allowed to proceed.

In this action, the only real issue was whether the applicant’s appeal had a reasonable chance of success. In chambers, the main issues presented required the chambers judge to assess expert evidence as to the standard of care of the named physicians. The applicant argues that she possessed three medical reports as well as patient files which were not reviewed by the respondents' experts, and that had they done so, a different conclusion may have arisen. She alleges that the chambers judge made errors in fact finding, as well as errors in failing to accept her expert evidence.

The applicant also raised grounds of procedural fairness, including refusal by the Court to permit her to respond to defence evidence as well as failure of the Court to provide her sufficient time to make submissions.

Upon review, the Court could not determine that the applicant's appeal was hopeless, particularly in respect to the grounds of procedural fairness (which must be reviewed for correctness). After balancing the appeal’s merit with the above factors, the Court granted the application to extend time.

Conclusion: In determining whether to grant an extension of time to file an appeal, the above four factors must be illustrated by the applicant and weighted by the Court.