Attila Dogan Construction and Installation Co. v. AMEC Americas Ltd. et al., 2015 ABCA 206

• Judge: Slatter, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 11, 2015
• Citations: 2015 ABCA 206;(2015), 602 A.R. 135

Attila Dogan Constr. v. AMEC Am. Ltd. (2015), 602 A.R. 135; 647 W.A.C. 135 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JN.099

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

(1501-0068-AC; 2015 ABCA 206)

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

Alberta Court of Appeal

Slatter, J.A.

June 18, 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.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - The Alberta Court of Appeal, per Slatter, J.A., stated that "Applications to extend time to appeal are governed by the principles in Cairns v Cairns [(1931, Alta. C.A.)]. It is often said that Cairns sets out a 'four part test', but that decision does not actually set out any 'test', and it mentions more than four factors: (a) a bona fide intention to appeal held while the right to appeal existed; (b) an explanation for the failure to appeal in time that serves to excuse or justify the lateness; (c) an absence of serious prejudice such that it would not be unjust to disturb the judgment; (d) the applicant must not have taken the benefits of the judgment under appeal; and (e) a reasonable chance of success on the appeal, which might better be described as a reasonably arguable appeal. These factors guide the Court in exercising its discretion to extend the time to appeal, but they do not set rigid requirements, and they do not override the Court's general discretion to extend time in appropriate cases. As noted in Cairns ... '... this Court considers that it has a free and unfettered discretion to do what justice requires to be done between the parties having regard to the circumstances of each particular case'. ... Since there is an overriding discretion in the Court to extend the time to appeal, it is not necessary for an applicant to satisfy all components of the Cairns test ... It is more accurate to say that if the applicant does satisfy all the components of the Cairns test, it is highly likely that an extension will be granted. Nevertheless, the appropriate approach is to address the Cairns factors first ... However, in the end the Cairns factors and the surrounding circumstances must be considered and weighed collectively in deciding whether an extension of time is warranted." - See paragraphs 4 and 5.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - 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 - 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 applications - The applications judge 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., granted the extension - AMEC asserted that the appeal was just another attempt to delay the proceedings, given that Attila had indicated that it would appeal regardless of the reasons why summary judgment was granted - It was not necessarily bad faith for a litigant to express an intention to appeal an adverse result in any event, if the consequences of the judgment, as was the case here, were very serious for that litigant - Contrary to AMEC's assertion, there was no rigid rule that error by counsel was not a sufficient explanation for the delay - AMEC also asserted that the successful party at trial had a vested interest in the judgment which should not easily be displaced - There was undoubtedly some disadvantage or prejudice to AMEC by reason of the appeal - However, much of that prejudice was by reason of the appeal itself, not the two days' delay - The appeal did not operate as a stay of a judgment, and any incremental prejudice to AMEC caused by an extension was not decisive - AMEC asserted that the appeal was without merit - That was for a panel of the court to decide - It was sufficient for the purposes here to conclude that the appeal was arguable.

Cases Noticed:

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

Stoddard v. Montague et al. (2006), 412 A.R. 88; 404 W.A.C. 88; 2006 ABCA 109, refd to. [para. 5].

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. 5].

Adderley et al. v. 1400467 Alberta Ltd. et al. (2014), 580 A.R. 319; 620 W.A.C. 319; 2014 ABCA 291, refd to. [para. 7].

Schulte v. Workers' Compensation Board Appeals Commission (Alta.) et al., [2015] A.R. Uned. 71; 2015 ABCA 148, refd to. [para. 7].

Hudson v. Bower; Shewchuk, Re (1968), 67 W.W.R.(N.S.) 564; 1 D.L.R.(3d) 288 (Alta. C.A.), refd to. [para. 7].

Shewchuk, Re - see Hudson v. Bower; Shewchuk, Re.

L.C. et al. v. Alberta et al. (2009), 448 A.R. 293; 447 W.A.C. 293; 2009 ABCA 77, refd to. [para. 7].

Jackson v. Canadian National Railway Co. et al. (2015), 599 A.R. 237; 643 W.A.C. 237; 2015 ABCA 89, refd to. [para. 7].

Gauthier v. Cité de Pont-Viau, [1978] 2 S.C.R. 516; 21 N.R. 299, refd to. [para. 7].

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.

Counsel:

C. Amsterdam, for the applicant;

D. Tupper, for the respondents.

This application was heard on June 11, 2015, by Slatter, J.A., of the Alberta Court of Appeal, who filed the following reasons for judgment at Calgary, Alberta, on June 18, 2015.