Attila Dogan Construction and Installation Co. v. AMEC Americas Ltd. et al., (2015) 606 A.R. 309

• Judge: Slatter, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 11, 2015
• Citations: (2015), 606 A.R. 309;2015 ABCA 257

Attila Dogan Constr. v. AMEC Am. Ltd. (2015), 606 A.R. 309; 652 W.A.C. 309 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. AU.074

Attila Dogan Construction and Installation Co. Inc. (respondent/appellant) v. AMEC Americas Limited, formerly AMEC E&C Services Limited and Agra Monenco Inc. (applicants/respondents)

(1501-0068-AC; 2015 ABCA 257)

Indexed As: Attila Dogan Construction and Installation Co. v. AMEC Americas Ltd. et al.

Alberta Court of Appeal

Slatter, J.A.

August 17, 2015.

Summary:

AMEC Americas Limited applied for summary dismissal of the claims of the plaintiff Attila Dogan Construction and Installation Co. Inc. (Attila) against AMEC for alleged delays in AMEC's performance in a joint venture for the design and construction of a magnesium oxide plant. AMEC also applied for summary judgment on its counterclaim against Attila for expenses to pursue and defend claims against a third party on behalf of both AMEC and Attila. Attila applied to adjourn the hearings of AMEC's summary applications.

The Alberta Court of Queen's Bench, in a decision reported at [2015] A.R. TBEd. MR.090, denied an adjournment and granted AMEC's applications. The time to appeal was one month which was measured from the numerical date in one month to the equivalent numerical date in the next month. Attila was represented by out of province counsel who mistakenly assumed that a "month" in the Alberta Rules of Court meant 30 days. Attila applied to extend the time to appeal by two days.

The Alberta Court of Appeal, per Slatter, J.A., allowed the application. AMEC and other defendants applied for permission to appeal Slatter, J.A.'s decision.

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

Practice - Topic 8873

Appeals - Leave to appeal - From discretionary order - AMEC Americas Limited obtained summary dismissal of the plaintiff's claims against it and summary judgment on its counterclaim - The time to appeal was one month which was measured from the numerical date in one month to the equivalent numerical date in the next month - The plaintiff was represented by out of province counsel who mistakenly assumed that a "month" in the Alberta Rules of Court meant 30 days - The plaintiff applied to extend the time to appeal by two days - Slatter, J.A., granted the extension - AMEC and the other defendants applied for permission to appeal - They asserted that although the test for extending the time to appeal had been settled for 85 years, recent decisions of single judges had interpreted the test differently by holding that errors by counsel, particularly misunderstanding an applicable rule, did not justify extending the time to appeal - The Alberta Court of Appeal, per Slatter, J.A., dismissed the application - There had been cases where an error by counsel, or a misunderstanding, of the pertinent rule, was found to be an insufficient excuse in the particular context, but that did not mean there was a fixed rule to that effect - The various factors set out in Cairns v. Cairns et al. (1931, Alta. C.A.) had to be weighed together, and whether to permit a late appeal was ultimately in the court's discretion - As there was an overriding discretion to permit a late appeal even if the Cairns test was not met, it did not advance the analysis to say that certain explanations could "never" be acceptable - There was no uncertainty in the case law sufficient to warrant a further appeal - Further, an extension of time would not have been granted if a different test had been applied - Even if it was assumed that the Cairns test was not met because there was no satisfactory explanation, the court still had the residual discretion to grant an extension - AMEC was only two days late, there was no prejudice arising from the delay, significant sums were involved, and there was no realistic prospect of a panel of the court reaching a different conclusion.

Practice - Topic 8877

Appeals - Leave to appeal - Grounds for refusal to grant leave - [See Practice - Topic 8873 ].

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - [See Practice - Topic 8873 ].

Cases Noticed:

Koska (Bankrupt), Re (2002), 303 A.R. 230; 273 W.A.C. 230; 4 Alta. L.R.(4th) 73; 2002 ABCA 138, refd to. [para. 2].

R. v. Hubek (N.M.), [2011] A.R. Uned. 35; 2011 ABCA 86, refd to. [para. 2].

Wong v. Giannacopoulos et al. (2011), 515 A.R. 58; 532 W.A.C. 58; 2011 ABCA 277, refd to. [para. 2].

Cairns v. Cairns et al., [1931] 4 D.L.R. 819; 26 Alta. L.R. 69 (C.A.), consd. [para. 3].

Schulte v. Workers' Compensation Board Appeals Commission (Alta.) et al., [2015] A.R. Uned. 71; 2015 ABCA 148, consd. [para. 4].

Adderley et al. v. 1400467 Alberta Ltd. et al. (2014), 580 A.R. 319; 620 W.A.C. 319; 2014 ABCA 291, consd. [para. 5].

Real Life Homes & Investments Ltd. et al. v. Wert Homes and Investments Ltd. et al., [2012] A.R. Uned. 2; 2012 ABCA 3, consd. [para. 5].

Stoddard v. Montague et al. (2006), 412 A.R. 88; 404 W.A.C. 88; 2006 ABCA 109, refd to. [para. 7].

Shewchuk, Re (1968), 1 D.L.R.(3d) 288; 67 W.W.R.(N.S.) 564 (C.A.), refd to. [para. 8].

Royal Bank of Canada v. Morin and Tewsley et al. (1977), 6 A.R. 341; 4 Alta. L.R.(2d) 127 (C.A.), refd to. [para. 8].

L.C. et al. v. Alberta et al. (2009), 448 A.R. 293; 447 W.A.C. 293; 2009 ABCA 77, refd to. [para. 8].

FIC Real Estate Fund Ltd. v. Phoenix Land Ventures Ltd. (2015), 602 A.R. 394; 647 W.A.C. 394; 2015 ABCA 245, refd to. [para. 8].

Canadian Western Bank v. 702348 Alberta Ltd. et al., [2010] A.R. Uned. 24; 2010 ABCA 75, refd to. [para. 9].

RIC New Brunswick Inc. v. Telecommunications Research Laboratories - see Canadian Western Bank v. 702348 Alberta Ltd. et al.

Cascade Development Corp. et al. v. Red Deer College (1991), 115 A.R. 325 (C.A.), refd to. [para. 9].

Counsel:

C. Amsterdam, for the respondent;

D. Tupper and R. Zahara, for the applicants.

This application was heard by Slatter, J.A., of the Alberta Court of Appeal, on August 11, 2015, who filed the following reasons at Calgary, Alberta, on August 17, 2015.