Jacobsen v Wawanesa Mutual Insurance Company, 2020 ABQB 813

Court of Queen’s Bench of Alberta Citation: Jacobsen v Wawanesa Mutual Insurance Company, 2020 ABQB 813 Date: 20201223 Docket: 1006 00830 Registry: Lethbridge Between: Bent Jacobsen and Norman Ruth Gehring Applicants - and - Wawanesa Mutual Insurance Company, R. Frank Llewellyn and R. Frank Llewellyn Professional Corporation Respondents _______________________________________________________ Endorsement of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] Rule 6.14(2) provides that an appeal from the order of a master must be processed by way of a “notice of appeal in Form 26”, which “must be filed and served within 10 days after the ... order is entered and served ...”. [ 2 ] Usually the winning party prepares the order, and sends it to the losing party who/which endorses the order as to the form granted (if the order is not signed at the time of its announcement) and returns it to the winning party, which/who files (enters) it with the clerk of the court and then serves it on the losing party.

The counting of the days of limitation for the filing of an appeal starts the date after the day in which it is serviced. Thus, it is logical that the appeal period runs from the day after service, as it is the date of service when the respondent losing party to the application knows that the order has been filed, and the appeal period is running.

[ 3 ] Here, however, Jacobsen and Gehring (Jacobsen) were the wining parties, but it was the Wawanesa et al (Wawanesa) , the losing parties, who prepared the Order granted by Master Farrington on October 22, 2020 (no endorsement as to approval of form), dismissing the Wawanesa’s application to dismiss the Jacobsen claim for undue delay pursuant to Rule 4.31, which Order Wawanesa filed/entered on October 23, 2020. [ 4 ] The problem arose here when Wawanesa submitted their Notice of Appeal in Form 26 to the Clerk on December 8, 2020, and it was initially rejected by the Clerk as being out of time (beyond the 10 days after filing and service), the former clearly on October 23, 2020, and the service presumably on the winning parties, Jacobsen, within a few days thereafter, such that the appeal was believed to have been submitted for filing more than 10 days after service.

However, in response to the initial rejection, the Clerk was advised by the Counsel for Wawanesa that the Order had not yet been served on Jacobsen, and thus the Notice of Appeal, there being no service, was within time. [ 5 ] The Clerk consulted with me as Associate Chief Justice for Alberta south of Red Deer, and as the Lethbridge Duty Justice during the week of December 14, 2020, and I advised her, in the circumstances, to file the Notice of Appeal, in effect, under protest, which it was on December 18, 2020, pending this Endorsement, which I now deliver. [ 6 ] I believe that there is a reasonable argument that the subject Appeal has been filed out of time.

Wawanesa, through their Counsel, clearly knew on October 23, 2020, that the Order had been filed/entered, as it was their Counsel who did so, and thus, in effect, “served themselves” (gave themselves notice of the filing of the Order) on October 23rd, with the appeal period ending on or about November 2, 2020.

That they didn’t serve same on Jacobsen (the winners) is of no consequence in relation to the time to appeal, because Jacobsen won before the Master and had nothing further to do – i.e. needed to file no appeal. [ 7 ] I leave this to Jacobsen to raise when this comes before a Justice of our Court on appeal, with Wawanesa needing to respond and the Justice making the decision whether the appeal was filed in time. Dated at the City of Calgary, Alberta this 23 rd day of December, 2020. J.D. Rooke A.C.J.C.Q.B.A. Appearances: None.