Clark v. Complaints Inquiry Committee, 2015 ABCA 271

• Judge: Veldhuis, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 25, 2015
• Citations: 2015 ABCA 271;(2015), 607 A.R. 1

Clark v. Complaints Inquiry Com. (2015), 607 A.R. 1; 653 W.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. SE.009

Daniel Francis Clark (applicant) v. Complaints Inquiry Committee of the Institute of Chartered Accountants of Alberta (respondent)

(1401-0012AC; 2015 ABCA 271)

Indexed As: Clark v. Complaints Inquiry Committee

Alberta Court of Appeal

Veldhuis, J.A.

September 1, 2015.

Summary:

Clark launched an appeal from decisions on professional sanctions and costs made by the Appeal Tribunal of the Chartered Professional Accountants of Alberta. The appeal was deemed abandoned on March 18, 2015, six months after it was struck on September 17, 2014. Clark had commenced his appeal in January 2014, but had taken no further steps to advance it since the Appeal Digest was filed in April 2014. Clark applied to restore the appeal.

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

Practice - Topic 10

General principles and definitions - Extension of time under rules - [See second Practice - Topic 9205 ].

Practice - Topic 9205

Appeals - Abandonment of appeal - Reinstatement of abandoned appeal - Clark launched an appeal from decisions on professional sanctions and costs made by the Appeal Tribunal of the Chartered Professional Accountants of Alberta - The appeal was deemed abandoned on March 18, 2015, six months after it was struck on September 17, 2014 - Clark had commenced his appeal in January 2014, but had taken no further steps to advance it since the Appeal Digest was filed in April 2014 - Clark applied to restore the appeal - The Alberta Court of Appeal, per Veldhuis, J.A., dismissed the application - The delay greatly exceeded the time that might be considered reasonable, and the explanation for that delay was insufficient - The record revealed some evidence that Clark was motivated to proceed with the appeal - However, overall, this factor did not weigh in favour of granting the application, nor did the merits of the appeal - The respondent was entitled to finality in the proceedings against it - Restoring the appeal would require the respondent to revisit previous steps in the litigation which it reasonably believed were finished - It would suffer significant prejudice if the appeal was restored.

Practice - Topic 9205

Appeals - Abandonment of appeal - Reinstatement of abandoned appeal - The applicant sought to reinstate an abandoned appeal - The Alberta Court of Appeal, per Veldhuis, J.A., stated that "[t]he respondent raises a preliminary issue on this application concerning the process for restoring an appeal under the new Alberta Rules of Court. The applicant has not formally sought the extension of time to restore an appeal contemplated by Coleman v Coleman, 2014 ABCA 452. The factors to be considered on an application to extend the time to restore an appeal mirror the factors for restoring the appeal. There is no requirement that two separate applications be filed. For the purposes of these specific applications and for practical purposes, the Court presumes the applicant is seeking an extension of time to restore the appeal in addition to seeking to restore the appeal itself pursuant to RR 13.5 and 14.47. I adopt the reasoning of Paperny JA in Allen v Alberta (Seniors and Community Supports), 2015 ABCA 238 at para 5: 'In the case of an abandoned appeal, regardless of whether this is done in one or two steps, the considerations are similar but the threshold is heightened. See Coleman ... . In my view, the discretion ought to be exercised sparingly and always with a view to the interests of justice.'" - See paragraph 6.

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. 5].

Gordon v. Holmen (2015), 593 A.R. 378; 637 W.A.C. 378; 2015 ABCA 42, refd to. [para. 5].

Prochazka v. Maintenance Enforcement Program, [2014] A.R. Uned. 450; 2014 ABCA 448, refd to. [para. 5].

Coleman v. Coleman (2014), 588 A.R. 317; 626 W.A.C. 317; 62 C.P.C.(7th) 425; 2014 ABCA 452, refd to. [para. 6].

Allen v. Alberta (Minister of Seniors and Community Supports) et al., [2015] A.R. Uned. 120; 2015 ABCA 238, agreed with [para. 6].

Institute of Chartered Accountants (Alta.) v. Erdmann (2013), 544 A.R. 321; 567 W.A.C. 321; 2013 ABCA 147, refd to. [para. 12].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 12].

Counsel:

D. Kobylnyk, for the applicant;

G. McKenzie, Q.C., for the respondent.

This application was heard on August 25, 2015, by Veldhuis, J.A., of the Alberta Court of Appeal, who delivered the following decision on September 1, 2015.