652013 B.C. Ltd. Plaintiff - v. -, 2010 ABQB 291

Court of Queen ’ s Bench of Alberta Citation: 652013 B.C. Ltd. v. Glenmore Inn Holdings Ltd., 2010 ABQB 291 Date: 20100429 Docket: 0901 17901 Registry: Calgary Between: 652013 B.C. Ltd. Plaintiff - and - Glenmore Inn Holdings Ltd. Defendant (Respondent) - and - Properties Plus Limited Third Party (Appellant) _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L. Kenny _______________________________________________________ Introduction

[ 1 ] The Third Party (Appellant) Properties Plus Limited (“Property Plus”) filed a Notice of Appeal with respect to a decision rendered by Judge J.T. McCarthy on October 29, 2009. They obtained a fiat to file the transcript of the proceedings. The Defendant/Respondent Glenmore Inn Holdings Ltd. (“Glenmore”) seeks to set aside the fiat granted by Justice Hunt McDonald which allowed Properties Plus to file the official transcript of the Provincial Court trial beyond the period set forth in the Provincial Court Act (“ Act ”). They also seek to dismiss the Notice of Appeal.

Background [ 2 ] The trial of this matter was heard in the Provincial Court on October 29, 2009 between Glenmore and the third party Properties Plus. Judgment was granted in favour of Glenmore. A Notice of Appeal filed by Properties Plus was served on November 26, 2009. On March 8 th , 2010, Properties Plus obtained a fiat from Justice Hunt McDonald to allow them to file the official transcript.

This was then served that same date on Glenmore. [ 3 ] Glenmore alleges that the filing of the transcript was filed outside the time permitted in the Act and therefore the fiat should be set aside and the Notice of Appeal should be dismissed. Legislation [ 4 ]

Section 46 of the Provincial Court Act , R.S.A. 2000, c. P-31 states: 46(1) Any party may appeal a decision of the Provincial Court to the Court of Queen’s Bench, (

a) within 30 days after the judgment is given, by (

I) filing in the Provincial Court a notice of appeal setting out the grounds of appeal, and (ii) serving the notice of appeal on (

A) the respondent, and (

B) any other person that the Court of Queen’s Bench directs, and (

b) by filing in the Court of Queen’s Bench not later than 7 days after the last day for service of the notice of appeal on those parties served pursuant to clause (a) (

I) a copy of the notice of appeal referred to in clause (a(ii)), (ii) an affidavit of service of the notice of appeal, and (iii) a copy of a requisition to a clerk of the Provincial Court for a transcript of evidence together with a receipt for payment of the transcript. 46(2) The Court of Queen’s Bench may, on application made before or after the expiration of the periods fixed by subsection (1)(

a) and (b), by order fix a further period, not exceeding 30 days from the date of the order, within which the service and filing referred to in subsection (1)(

a) and (

b) may be effected. 46(3) The appellant shall file with the Court of Queen’s Bench, and serve copies on those parties served pursuant to subsection (1)(a)

(ii), a transcript of the evidence heard before the judge of the Provincial Court within 3 months of the date that the notice of appeal isfiled in the Court of Queen’s Bench, unless an order has been made by a judge of the Court of Queen’s Bench prior to the expiration ofthe 3-month period extending the time for filing the transcript. 46(4) Where a judge of the Court of Queen’s Bench is satisfied that a transcript cannot be provided for the appeal, the judge may, onapplication by the appellant, (

a) order that the matter be returned to the Provincial Court for a new hearing, or (

b) make any other order that the judge considers appropriate. [5] Sections 48(1) and (2) of the Provincial Court Act, R.S.A. 2000, c. P-31 state: 48(1) If an appellant fails to comply with the requirements of

section 46, the appeal shall be dismissed by the Court of Queen’s Bench.

(2) If an appeal is dismissed under subsection (1), the Court of Queen’s Bench may make any order as to costs that it considersproper. [6] Rule 548 of the Alberta Rules of Court, Alta. Reg. 390/1968 provides: 548(1) Unless there is an express provision that this Rule does not apply, the court may enlarge or abridge the time appointed by theseRules or any rules relating to time or fixed by any order for doing any act or taking any proceeding upon such terms as may be just.

(2) An enlargement may be ordered although the application therefor is not made until after the expiration of the time appointed orallowed. Position of the parties. [7] The representative of Properties Plus deposes that Properties Plus has a meritorious defence to the action which is a properbasis for the appeal and sets out that basis in his affidavit. He advises that he instructed his counsel to file an appeal in the matter and thatthe transcript of the trial was ordered on that same date which was November 26, 2009.

The three month period within which thetranscript is to be filed pursuant to the legislation is March 1, 2010. Instead the transcript was filed on March 8, 2010. The deponent setsout that it was an error by his counsel which lead to the late filing of the transcript. In particular, legal counsel loss his legal assistant onvery short notice on February 19, 2010 resulting in significant additional work to him and secondly counsel for Properties Plus was illduring this time period and lost time from work before he was able to properly return to full-time practice on Monday, March 8, 2010.

Atthat time he took immediate action to file the transcript and to serve it on the respondent. Discussion [8] Section 46(3) of the Act has been subject to two different lines of

interpretation in Alberta; the first finds that there isdiscretionary power to extend the time period after its expiration and the second finds that no discretion exists. A. Extension Permitted [9] Strilets v. Vicom Multimedia Inc. (AB KB), [2000] 274 A.R. 6, 85 Alta L.R. (3) (QB) (“Strilets”) dealtwith a similar circumstance to this one. It refers to an earlier version of the Act which allowed six months for the filing of a transcript

however the wording of section 59(3) was the same as the current section 46(3). [10] Justice Lee reviewed Rule 548 and the principles of statutory

interpretation. The appellant’s submissions in Strilets reliedheavily on Canadian Tire Corp. v. Walker, (1992) (AB KB), 5 C.P.C. (3d) 208 (ABQB) wherein O’Leary J. heldthat the intention of section 59(3) (as it then was) was directory and not absolute and that failure to comply with this

section would notcompel the court to dismiss the appeal as the word “shall” in section 61(1) (as it then was) should be read as permissive. [11] The respondent in Strilets made the same argument as here; that is that the Act provides a comprehensive procedure andtherefore there is no room for the application of Rule 548. [12] Justice Lee acknowledged the conflicting lines of cases with which he was confronted.

However he noted at paragraph 32 that“the object of the Provincial Court Act is to provide a procedure whereby a more substantial number of the public at large are able toadvance a claim, without the necessity of attaining counsel....” and concluded at paragraph 33 that “while the intent of the statute is clearly to avoid frivolous appeals where no transcript is ever filed, to conclude that the requirement tofile a transcript within 6 months is a condition of the right of appeal would be contrary to the intention of the statute.” [13] Justice Lee denied the motion to strike the appeal and then moved on to consider Rule 548. [14] Traditionally the criteria for extending a time limit are as set out in Cairns v.

Cairns (1931), (AB CA), 26Alta. L.R. 69 (Alta. C.A.) (“Cairns”).

Those criteria as set out at paragraph 36 of Strilets are: 1) Show that a bona fide intention to appeal existed at the time that the right to appeal existed and that the failure was by reason ofsome special circumstance which served to excuse or justify the failure; 2) Account for the delay and show that the other side was not so seriously prejudiced thereby as to make it unjust to permit anappeal; 3) Show that he has not taken the benefit of the judgment sought to be appealed from; and 4) Show that he has a reasonable chance of success if allowed to appeal. [15] The approach in Strilets was followed in Pohr v.

Hovelkamp, 2008 ABQB 636. Justice Veit held, at paragraph 2, “I acceptthat this court has the power to extend the time set in the Provincial Court Act for the filing of a transcript of the trial: see the decision inStrilets...”. [16] The appellant also refers to the decision of Independent Acceptance Corp. v. Hautz, 2008 ABQB 619, 459 A.R. 282(“Hautz”). That case dealt with an application for the extension of time to file a notice of appeal. That is somewhat different than thecase here as section 46(2) of the Act allows application to be made either before or after the expiration of the time periods fixed.

Section46(3), in dealing with the filing of a transcript, requires that an application be made prior to the expiration of the 3 month period forfiling the transcript. [17] While the sections of the statute are different, the analytical process used in Hautz for determining whether an extension isappropriate is relevant to this case. In Hautz as here the error was that of counsel and the time for filing the appeal was a mere 10 dayslate. The court in that case focussed on the need for the court to retain discretion to extend the time for appealing if the justice of thesituation required it.

B. No Extension Permitted [ 18 ] The second line of authority in Alberta comes from Dee Vee Electrical Ltd. v. Bradley , 2009 ABQB 253 (“ Dee Vee ”). The facts of that case and this one are similar. A transcript had been ordered and paid for in a timely fashion. However, due to inadvertence it had not been filed in Queen’s Bench. The time for filing the transcript expired on February 4, 2009 and the application was brought on April 1, 2009.

The issue was whether Court of Queen’s Bench had jurisdiction to extend the time for filing of the transcript. [ 19 ] The court pointed out the difference in wording between section 46(2) and 46(3) and held that this difference in wording reflected a clear legislative intent. The court found that it had no jurisdiction to relieve against

section 48 which mandated that the appeal be dismissed. [ 20 ] At paragraph 26, the court noted that it was unclear as to why the legislature chose to make the distinction that it did between the sections but felt that there was no jurisdiction to do anything but to dismiss the appeal. The court acknowledged however that this was a situation where there was no evidence of irreparable harm resulting from this particular default and that the court would likely extend the time for filing if it had the discretion to do so. [ 21 ] I echo the comments of Justice Graesser in Dee Vee .

It is not clear given the objectives of the Act why the legislature chose to make the distinction between section 46(2) and 46(3) . A review of Hansard dealing with the Act notes the importance of accessibility for unrepresented litigants (Alberta, Legislative Assembly, Hansard (21 March 2006) at 571 (Mrs. Mather, Hon. Member for Edmonton- Mill Woods). [ 22 ] A review of other Canadian provinces, in particular Saskatchewan, Ontario and British Columbia, indicate that none of them have the distinction that Alberta has between section 46(2) and (3) .

Those provinces appear to leave the discretion with the court for determining appropriate filing time lines. [ 23 ] I am satisfied in keeping with the objectives of the Act that the court has the discretion to extend the time for filing of the transcript. A review of the Cairns criteria is therefore necessary to determine whether such extension is appropriate. The affidavit of the representative for the appellant addresses all of the Cairns criteria. There was an immediate filing of the Notice of Appeal and the ordering of the transcript. The delay was very minor, only 8 days late.

There is no evidence the respondent is prejudiced by the delay. No benefit has been taken of the judgment and the deponent has set out the basis for the appeal which shows an arguable appeal. [ 24 ] I am satisfied that the Cairns criteria has been met and would therefore dismiss the motion seeking to set aside the fiat granted by Madam Justice Hunt McDonald thereby allowing the appeal to proceed. [ 25 ] In the circumstances of this case there shall be no costs to either party. Heard on the 18 th day of March, 2010. Dated at the City of Calgary, Alberta this 29 th day of April, 2010.

C.L. Kenny J.C.Q.B.A. Appearances: T.W. Percy, for the Defendant (Respondent) Keith E. Laws, for the Third Party (Appellant)