Mar 8, 2016

ABCA SUMMARY: Bacon v Gullberg

Bacon v Gullberg, 2016 ABCA 62 (CanLII)

The applicant sought to restore his matter to the list for hearing after his appeal was struck for non-compliance with the Rules of Court.

Facts: The applicant launched an appeal under the fast track rules, but his appeal was struck because the Appeal Record was not filed on time. Transcripts for the Appeal Record were certified early November, however, the applicant’s counsel was on vacation until near the end of the month. When counsel returned, funds were requested, but the transcripts were not received until after the deadline passed. Shortly after, the applicant’s counsel provided the transcripts to the respondent and asked for consent to restore the appeal, but the respondent refused.

Analysis: Rule 14.17(2) allows an Appeal Record to be filed without transcripts, if necessary, subject to a follow up obligation. There was no indication that the applicant’s counsel acted in a manner which was shortcoming insofar as professional standards were concerned. The applicant simply missed the deadline because he did not provide funding for the transcripts in time. This, however, is not the fault of counsel as the Court noted the applicant had been in these proceedings for some time and must have had some idea about his obligations and necessary steps.

The real question, however, was whether it was in the interests of justice to restore the appeal. The Court examined the merits, noting that it was an appeal from a Queen’s Bench decision re-calculating the applicant’s short term income. These decisions are discretionary, and as such, there was no merit to the appeal because there was no reasonable prospect that the Court would interfere with such calculation. The application, therefore, was denied.

Conclusion: Consideration of the interests of justice is a key factor in any application for condonation of a situation of non-compliance with the Alberta Rules of Court.