Docket: CACV2188 Precision Contractors Ltd. Applicant - v. -, 2012 SKCA 96

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 96 Date: 2012-10-25 Between: Docket: CACV2188 Precision Contractors Ltd. Applicant - and - The Government of Saskatchewan Respondent Before: Cameron J.A. (in Chambers) Counsel: E.F Anthony Merchant, Q.C. for the Applicant Sharon Pratchler, Q.C. for the Respondent Application for Extension of Time

Heard: October 24, 2012 Disposition: Application Allowed (orally) Reasons: October 25, 2012 By: The Honourable Mr.

Justice Cameron Cameron J.A. [1] This is an application under Rule 71 of The Court of Appeal Rules for an order extending the time for serving a notice of appeal. [2] The circumstances are a bit unusual inasmuch as the applicant, Precision Contractors Ltd., was granted leave to appeal from thejudgment in issue but failed to serve the notice of appeal within the time prescribed by Rule 11(2), which is to say within 10 days afterthe date of the order granting leave to appeal. [3] The order granting leave to appeal is dated June 1, 2012, meaning the notice of appeal was to be served no later than June 11,2012.

It was not served until August 28, 2012. The failure to serve in time lay in a combination of solicitor error, illness, and inattention,and led to this application to extend the time. The application was filed on September 28, 2012. [4] The leading case authority concerning the extension of time in the face of solicitor error is that of Bank of Nova Scotia v.Saskatoon Salvage Company

(1954) Limited (1983), (SK CA), 29 Sask. R. 285 (Sask. C.A.). The Court there heldthat solicitor error may provide the basis for an extension of time if the extension does not result in serious prejudice to the other party,noting that other factors also fall to be considered. These consist of whether the appellant (

i) had a bona fide intention to appeal withinthe time limited for appeal; (ii) has an arguable case; and (iii) acted with reasonable diligence or has a reasonable excuse for the delay. [5] Having regard for this framework of principle, together with the circumstances relating to the failure to serve on time in thisinstance. I am satisfied the time for serving the notice of appeal should be extended.

I can see no serious prejudice to the respondent ingranting the extension, and granting it is consistent with the above criteria, bearing mind the notion that solicitor error may provide thebasis for such an extension. [6] I might say that the fact leave to appeal was granted in this case weighed rather heavily with me.

Leave having been granted, itseems to me that it would be unduly harsh not to extend the time for serving the notice of appeal, for this would deprive the applicant ofthe opportunity to present its case by reason alone of the relatively short delay that occurred in consequence of the failure to serve thenotice of appeal on time. [7] For essentially these reasons, then, I have decided to extend the time for serving the notice of appeal but only on condition theappellant perfect the appeal forthwith, which is to say on or before Monday, November 26, 2012, so as to avoid any further departurefrom the Rules and any more delay.

There will be an order accordingly, meaning that, upon compliance with the above condition, thetime for serving the notice of appeal will be extended to and including the day upon which the application to extend the time was filed.The effect, upon compliance with this condition, will be to validate the service made on August 28, 2012, meaning the notice of appealwith proof of service may be filed along with the Appeal Book and Factum, provided the latter be served and filed on or beforeNovember 26, 2012. As for costs, I leave the matter to the court on the hearing of the appeal.

Dated October 25, 2012. _ “Cameron J.A.”____________ Cameron J.A.