Klein v. Martin, 2011 MBCA 19

Citation: Klein v. Martin, 2011 MBCA 19 Date: 20110204 Docket: AF 10-30-07489 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HEATHER LYNN KLEIN ) C. L. Dunn ) as agent for L. R. Fishman (Petitioner) (Appellant) Respondent ) for the Applicant ) ) L. I. Z. Pinsky and ) J. I. Parke

r) for the Respondent - and - ) ) Chambers motion heard and ) Decision pronounced: ) February 3, 2011 JEFFREY RICHARD MARTIN ) ) Written reasons: (Respondent) (Respondent) Applicant ) February 4, 2011 CHARTIER J.A. 1 The applicant moved to extend the time to file a notice of cross-appeal. I granted the motion and gave him until February 10, 2011, to do so. Notwithstanding his successful application, I ordered costs against the applicant in the amount of $300, including disbursements. I also promised brief reasons would follow.

These are those reasons. 2 On January 5, 2011, while his counsel was away on vacation, the applicant was served with a notice of appeal. The Court of Appeal Rules provide that any cross-appeal must be filed within 15 days after being served with the notice of appeal. Upon returning from holidays, his counsel made an error in counting the days to file the notice of cross-appeal by excluding the weekend days in his tally.

As a result, he believed the deadline date for filing to be January 26, 2011, instead of the correct January 20, 2011 date. 3 After discussion with his counsel and during the cross-appeal period, the applicant formed the intention to cross- appeal. On January 24, the applicant’s counsel wrote to opposing counsel requesting an extension of time to file a cross-appeal until two weeks after production of the transcript. Opposing counsel refused and advised the applicant’s counsel that the time for filing the cross- appeal had lapsed.

The applicant then moved to extend the time. 4 In order to be successful, the applicant must demonstrate: 1. that there was a continuous intention to cross-appeal from a time within the period when the cross-appeal should have been commenced; 2. that there is a reasonable explanation for the delay; 3. that there are arguable grounds; and 4. that any prejudice suffered by the other party can be addressed. 5 See Zalizniak v. Zalizniak , 2006 MBCA 161 , 212 Man.R. (2d) 114 (in chambers) , and Bohemier et al. v. CIBC Mortgages Inc. , 2001 MBCA 161 , 160 Man.R. (2d) 39 .

Additionally, even if not all of the criteria are satisfied, the court may still grant an extension if it is right and just in all of the circumstances that the time be extended. See Hunter v. Hunter , 2000 MBCA 134 , 150 Man.R. (2d) 291 (in chambers) . 6 In all of the circumstances, the motion to extend time should be granted. In my view, all of the criteria have been satisfied.

More to the point, the short period of time by which the applicant missed the deadline for filing the cross-appeal was sufficiently explained and counsel’s miscalculation on the time limit should not cause the applicant to lose his right to cross-appeal (see L. C. v. Alberta , 2009 ABCA 77 , 448 A.R. 293 ). The respondent’s prejudice in terms of the court appearance can sound in costs .

7 I granted the motion and extended the time to file his cross-appeal until February 10, 2011. Although the applicant was successful in this matter, this extra court appearance was caused solely by counsel for the applicant’s inattention to the deadline and did cause the respondent some prejudice. As a result, I ordered the applicant to pay $300 costs in favour of the respondent . __________________________ J.A.