Dynamo Coatings Ltd v Alberta Building Trades Council Benevolent Society (A.B.T.C.B.S.), 2024 ABCA 36

In the Court of Appeal of Alberta Citation: Dynamo Coatings Ltd v Alberta Building Trades Council Benevolent Society (A.B.T.C.B.S.), 2024 ABCA 36 Date: 20240131 Docket: 2303-0087AC Registry: Edmonton Between: Dynamo Coatings Ltd Applicant - and - Alberta Building Trades Council Benevolent Society (A.B.T.C.B.S.) and Casman Industrial Construction Inc Respondents _______________________________________________________ Reasons for Decision of The Honourable Justice Kevin Feth _______________________________________________________ Application for Permission to Appeal _______________________________________________________ Reasons for Decision of The Honourable Justice Kevin Feth _______________________________________________________

[1] The applicant, Dynamo Coatings Ltd, seeks permission to appeal my decision denying an application to restore its appealafter being struck for failing to meet filing deadlines, and then deemed abandoned: 2023 ABCA 355. [2] Brandon Picken is the sole principal of the applicant and sought to represent the applicant in a builder’s lien action in theCourt of King’s Bench. Mr. Picken is not a lawyer, and that application was denied by an Applications Judge.

An appeal of thatdecision to a Justice of the Court of King’s Bench was further dismissed. [3] The applicant filed an appeal of that dismissal to this Court, but the appeal was struck after the appeal record was not filed ontime. The appeal was then deemed abandoned after the application to restore the appeal was not made and heard in the required three-month period under Rule 14.65(3)(b). [4] My reasons for denying the application to restore the appeal need not be repeated in full here.

Briefly, I determined thatwhile there was a continuing intention to pursue the appeal, no adequate explanation for the delay and no reasonable promptness inseeking to restore the appeal were shown. I also found that restoring the appeal was not in the interests of justice because the applicanthad not demonstrated any arguable merit to the appeal. [5] After unsuccessfully attempting to file a second application to restore the appeal, the applicant now seeks permission toappeal my decision denying restoration. This application comes before me pursuant to Rules 14.5(1)(

a) and 14.5(2) and is heard inwriting. My role under 14.5(1)(

a) is that of gatekeeper. An application for permission to appeal a decision of a single appellate judge isnot a rehearing of the original application to restore the appeal, nor is it sufficient that an applicant wants to re-argue the motion before afull panel of this Court.

Rather, the “applicant must demonstrate a reviewable and material issue of law worthy of review by a full panel of the Court”: Alberta Health Services v Wang, 2017 ABCA 261 at para 4, 58 Alta LR (6th) 109 [Alberta Health]. [6] As set out in Al-Ghamdi v Alberta, 2016 ABCA 403 at para 10: The burden on an applicant to obtain permission to appeal an order of a single judge of this Court under Rule 14.5(2) is to establish thatthe order of the single judge being reviewed: (

a) raises a question of general importance which on its own deserves panel review; (b)rests on a reviewable and material issue of law worthy of panel review; (

c) involves an unreasonable exercise of discretion which had ameaningful effect on the outcome of the decision and the outcome is worthy of panel review or (

d) rests on a palpable and overridingerror of important facts affecting the order made and the order is worthy of panel review.

Other factors that may be considered include “whether there are conflicting decisions on the point; the standard of review that would beapplied on the appeal; and whether there are other good reasons why a full panel of the Court should review the order under appeal”:Alberta Health at para 5. [7] Importantly, “[n]ew arguments are not properly presented on appeal, and certainly not as the basis for permission to appeal”: Cold Lake Industrial Park GP Ltd v Abt (Estate), 2022 ABCA 23 at para 25. [8] The applicant’s written submissions for this application seeking permission to appeal do not address these factors nor itsoverriding burden to demonstrate a serious issue justifying another level of review.

No complaint is raised about the way the applicationto restore the appeal was conducted nor is any argument made that my decision to deny the application resulted from either anunreasonable exercise of discretion or a material error of fact. [9] The arguments set out in the applicant’s written memorandum continue to make submissions about why the applicant failedto file its materials on time but reframe these submissions under the test to extend time to appeal governed by the factors set out inCairns v Cairns, (AB CA), [1931] 4 DLR 819 at 826-7 (Alta SC (AD)).

This is not an application to extend time toappeal, and that test does not assist the applicant in identifying or establishing a reviewable and material issue which would justifygranting permission to appeal the dismissal of its restoration application. [10] The applicant’s written memorandum, prepared by Mr. Picken, states: “My explanation is that I read the rules and interpretedthem as they are written, to mean that the appeal is standard and not fast-track. There is from what I see no explanation as to why thiswould be a fast-track appeal within the rules.

If the appeal was a standard appeal, I would not be late”. The memorandum further statesthat there was “no reason for me to believe the appeal was to be fast-tracked, it doesn’t fall within any of the subsections of 14.14(2)”. These arguments were not raised in the applicant’s restoration application and the applicant is not entitled to a do-over of its dismissedrestoration application by seeking to achieve indirectly through a permission to appeal application, what it cannot do directly bylaunching a second restoration application on new grounds.

Regardless, these arguments do not raise a question of general importance ora material issue of law arising out of my decision worthy of a panel review. [11] To alleviate any uncertainty that the missed filing deadlines here were justifiable based on Mr. Picken’s belief this was not afast-track appeal, such arguments are meritless on the record before this Court. Namely, the applicant filed its notice of appeal on May2, 2023.

On May 4, 2023, an email was sent to the applicant from the Court’s Case Management Officer confirming that “the appeal hasbeen categorized as a Fast-Track appeal” and that the “deadlines applicable to fast-track appeals will apply”. The email also providedinformation about how to contact the Case Management Officer for assistance with the appeal, advised that specific deadlines for theappeal were available on “your CAMS Account”, and provided in bold: “You are encouraged to review the applicable deadlines asfailing to comply with them will result in the appeal being struck”.

The applicant did not heed this direction, and the appeal wasstruck when the appeal record deadline was missed. The matter was further deemed abandoned after the applicant failed to ensure itsrestoration application was heard within the required time limit. [12] At no point did the applicant seek to challenge the designation of the appeal as a fast-track, nor would such a challenge havehad any chance of success. The appeal decision of the Court of King’s Bench confirming that Mr.

Picken could not represent theapplicant in the builder’s lien action did not “finally determine[] all or some of the significant part of the substantive rights in issue” in

that action. This meets the criteria of a fast-track appeal as set out in Rule 14.14(1). Further, fast-track appeals are not limited to those matters otherwise specifically set out in Rule 14.14(2). [ 13 ] Mr. Picken’s affidavit states that “judges of the court are not using the correct

interpretation of Rule 2.23(3)(a)”, and that the “action to dismiss me as lawyer is an abuse of process, and blocking access to justice”. For the sake of this permission to appeal application, I will interpret these statements as arguments directed at my conclusion about the lack of merit to the appeal. More specifically, my finding was that the decision of the Justice of the Court of King’s Bench on appeal correctly determined that Mr.

Picken could not represent the corporate applicant in the builder’s lien action. [ 14 ] Once again, the applicant’s arguments in this respect fail to demonstrate why the interests of justice are served by allowing a further level of review. As I found in my decision denying restoration of this appeal, Mr. Picken is not a lawyer, and he is not entitled to practice law as per s 106(1) of the Legal Profession Act, RSA 2000, c L-8 . No abuse of process is presented. [ 15 ] Further, a misinterpretation of Rule 2.23(3)(

a) was not argued by the applicant in seeking to restore the appeal, nor does that rule assist in seeking permission to appeal based on what would again be a new argument on the merit of the appeal. In any event, Rule 2.23 is a permissive provision in which the Court “ may permit a person to assist a party before the Court”; it is not mandatory that permission be granted. To the extent that the applicant unsuccessfully sought permission to have Mr.

Picken not only assist but represent the applicant in the builder’s lien action, and that decision was upheld on appeal before the King’s Bench Justice, the applicant was unable to demonstrate any error in principle in reaching those discretionary decisions that warranted restoring the appeal. The applicant also failed to establish any serious or material issue relating to my determination that deference was owed to those discretionary decisions that would warrant granting permission to appeal. Moreover, Rule 2.23(3)(

a) only serves to confirm my decision: “Despite subrule (1), no assistance may be permitted (

a) that would contravene section 106(1) of the Legal Profession Act ”. [ 16 ] In conclusion, where the proposed issues raised by the applicant offer new submissions about missed deadlines and the alleged error of the King’s Bench Justice, these arguments do not provide a proper or substantive basis for granting permission to appeal. The arguments are also not founded upon an error in my decision, which was amply supported on the record and to which appellate deference would be owed.

This application for permission to appeal does not raise a question of general importance or a material issue of law warranting a review of my single judge decision by three members of this Court. In other words, it is not in the public interest to allow a further appeal hearing in this matter. [ 17 ] Permission to appeal is denied. Application heard in writing Reasons filed at Edmonton, Alberta This 31st day of January, 2024 Feth J.A. Appearances: Branden Picken Applicant R.R. Blakely, KC for the Respondent Alberta Building Trades Council Benevolent Society (A.B.T.C.B.S.) P. Ryzuk

for the Respondent, Casman Industrial Construction Inc.