Aldecoa v. Nayebi et al., (2008) 429 A.R. 85 (CA)

• Judge: Hunt, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 21, 2008
• Citations: (2008), 429 A.R. 85 (CA);2008 ABCA 130

Aldecoa v. Nayebi (2008), 429 A.R. 85 (CA);

      421 W.A.C. 85

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AP.070

Cyren Aldecoa (applicant/appellant/plaintiff) v. Zhila Nayebi and the Director of Maintenance Enforcement (respondents/respondents/defendants) and Massoud Mehri (not a party to the appeal)

(0701-0100-AC; 2008 ABCA 130)

Indexed As: Aldecoa v. Nayebi et al.

Alberta Court of Appeal

Hunt, J.A.

April 7, 2008.

Summary:

Nayebi and Mehri divorced in 1994. Mehri failed to pay maintenance. Over 10 years later, the court ordered the transfer of a house owned by Mehri to satisfy the arrears. About the same time, Mehri transferred the house to Aldecoa. Aldecoa and Nayebi then entered into an agreement whereby Aldecoa would pay the monies owed by Mehri in a prescribed manner within a specified period of time. Aldeoca tendered several documents that she labelled bonds which she said satisfied Mehri's debt. Nayebia and the Director of Maintenance Enforcement concluded the documents were worthless and obtained an order that the house be sold. Aldecoa brought an originating notice, seeking inter alia, declaration that the documents satisfied the maintenance arrears. The application was dismissed. Aldecoa appealed. Her appeal was struck pursuant to rule 515.1(7) of the Alberta Rules of Court because Aldecoa failed to appear when the appeal was called on the general appeal list. Aldecoa sought to have the appeal restored to the list.

The Alberta Court of Appeal, per Hunt, J.A., dismissed the application.

Practice - Topic 8907

Appeals - Procedure - Restoring appeal to general list - The Alberta Court of Appeal, per Hunt, J.A., stated that, in deciding whether to restore an appeal that has been struck under rule 515.1(7) of the Rules of Court, the court would consider such matters as the timely intention to appeal, inordinate delay, explanations or excuses for the delay, prejudice to the respondents, and whether it was in the interests of justice that the appeal be reinstated - An appeal was deemed abandoned six months after it was struck (rule 530(18)) - Slightly less stringent criteria for allowing reinstatement might apply when the appeal had been struck per rule 515.1(7) but not yet deemed abandoned per rule 530(18) - See paragraphs 3 and 4.

Practice - Topic 8907

Appeals - Procedure - Restoring appeal to general list - The applicant sought to restore her appeal to the general appeal list - The appeal was from an order dismissing the applicant's Originating Notice - It was struck pursuant to rule 515.1(7) of the Alberta Rules of Court because the applicant failed to appear when the appeal was called on the general appeal list - The applicant alleged that she did not receive a letter from the Registrar of the Court of Appeal advising her she was required to report in person on a specified date to provide an update on the status of her appeal - She alleged that she only found out her appeal had been struck when she attended the Registry to file some documents - The Alberta Court of Appeal, per Hunt, J.A., dismissed the application - The determining factor was whether or not the appeal had sufficient merit to restore it to the list - It did not - See paragraphs 5 to 14.

Cases Noticed:

Phillips v. 707739 Alberta Ltd. et al. (2001), 286 A.R. 367; 253 W.A.C. 367; 2001 ABCA 219, refd to. [para. 3].

Bank of Montreal v. Bank of Canada and Bay Bus Terminal (North Bay) Ltd. et al., [1978] 1 S.C.R. 1148; 16 N.R. 93; 76 D.L.R.(3d) 385, refd to. [para. 35].

Counsel:

C. Aldecoa, appeared on own behalf;

D.M. Beattie, for the respondent;

C.G. Nugent, for the respondent.

This application was heard in Chambers, on February 21, 2008, before Hunt, J.A., who filed the following reasons for decision on April 7, 2008.