Time during which a notice of appeal is allowed

A party may be allowed to appeal a decision of a Master or Justice to a higher court in an attempt to change the ruling.

However, a party and their counsel must be aware of the time during which a notice of appeal is allowed to be filed. If the time has lapsed, a party may not be able to appeal a decision. This was at issue in the case McCarthy Estate (Re), 2021 ABCA 293. This case outlined and interpreted the law on when a court will extend the time to appeal. 

Factual Background

The chambers judge held a typed written, signed but unwitnessed will was not a valid will, and that the testator had died intestate. The case was heard on March 31, 2021. Pursuant to rule 13.3 of the Alberta Rules of Court the time to file a notice of appeal began on April 1, 2021, and ended on May 1, 2021.

May 1 was a Saturday, and counsel believed this meant the date for filing was Monday, May 3, 2021. Counsel electronically filed the notice of appeal on May 3, which was past the time for filing.

Fundamental Legal Principles

The Court considered two tests in this case, the test to extend the time to appeal, and the test to restore an appeal.

Cairns v. Cairns [1931] 4 DLR 819, 826-27 (Alta SC (AD)), [1931] 3 WWR 335, an old 1931 Alberta Supreme Court case, was the first case to outline the principles a Court will consider in determining whether to extend the time to appeal. The principles include the following:

a) a bona fide intention to appeal held while the right to appeal existed;

b) an explanation for the failure to appeal in time that serves to excuse or justify the lateness;

c) an absence of serious prejudice such that it would not be unjust to disturb the judgment;

d) the applicant must not have taken the benefits of the judgment under appeal; and

e) a reasonable chance of success on the appeal, which might better be described as a reasonably arguable appeal.

Note that these principles are indicia, and not a strict test. A Court retains discretion to extend the time to appeal.

The Court also reviewed the test for restoring an appeal. A Court will retain its discretion to restore the appeal when considering the following factors:  

a) arguable merit to the appeal;

b) explanation for the defect or delay which caused the appeal to be taken off the list;

c) reasonable promptness in moving to cure the defect and have the appeal restored to the list;

d) intention in time to proceed with the appeal; and

e) lack of prejudice to the respondent (including length of delay).

The tests have overlapping factors, and the Court considered both tests together.

Findings of the Court

The Court extended the time to appeal and restored the appeal to the list based on the following conclusions: 

1. The personal representatives had an intention to appeal while the right to appeal existed. 

2. The delay was not excessive. 

3. There was no evidence the opposing party would be prejudiced by extending the time to appeal and restoring the appeal to the list because the estate had not been distributed yet.

4. There would be a reasonable chance of success on appeal. This is a low threshold.  The appeal is sought on the basis that the chamber judge’s decision was made on an incomplete and inaccurate understanding of the evidence. The appeal was not “frivolous or hopeless or bound to fail.”

While the party in this case was able to bring an appeal, the Court outlined “this is an object lesson that one should at all times attempt to avoid filing a document on the last day allowed for filing, as these slips or perhaps rejection of filings by the Court can and do occur.” 

The ability to file an appeal outside the legislated time frame is not guaranteed, because of the risk that a Court will find the outlined legal principles have not been satisfied to the discretion of the Court.