Coleman v. Coleman, 2014 ABCA 452

• Judge: Wakeling, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 27, 2014
• Citations: 2014 ABCA 452;(2014), 588 A.R. 317

Coleman v. Coleman (2014), 588 A.R. 317; 626 W.A.C. 317 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JA.012

Jodi Lynn Coleman (respondent) v. Ronald Gary Coleman (applicant)

(1303-0309-AC; 2014 ABCA 452)

Indexed As: Coleman v. Coleman

Alberta Court of Appeal

Wakeling, J.A.

December 23, 2014.

Summary:

Coleman appealed a judgment ordering him to pay his former spouse $39,866.50. His appeal was deemed to have been abandoned. He applied for an order restoring his appeal.

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

Practice - Topic 10

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

Practice - Topic 9205

Appeals - Abandonment of appeal - Reinstatement of abandoned appeal - Coleman appealed a November 27, 2013 judgment, ordering him to pay his former spouse $39,866.50 - His appeal was struck from the list on April 7, 2014, because he failed to file the transcripts and appeal digest within the prescribed time - By operation of rule 530.5(5) of the old Alberta Rules of Court in force before September 1, 2014, and rule 14.65(3) of the new Alberta Rules of Court in force after August 31, 2014, his appeal was deemed to have been abandoned effective October 6, 2014 - On October 24, 2014, Coleman applied for an order restoring his appeal - He relied on rule 14.47 of the new Rules - The Alberta Court of Appeal, per Wakeling, J.A., dismissed the application - The new Rules governed this application - Rule 15.16(1) provided that "Part 14 applies to every appeal existing on September 1, 2014" - Coleman's appeal had been struck, but it was still existing as of September 1, 2014 - Rule 14.47 required that an application to restore an appeal which had been struck had to be filed and served and made returnable within six months of the date it was struck - The failure to do so activated rule 14.65(3) and resulted in the appeal being deemed abandoned - Rule 13.5(2) gave the court jurisdiction to extend the six-month deadline in rule 14.47 "unless a rule otherwise provides" - There was no rule which expressly stated that rule 13.5 did not apply to rule 14.47 - The court extended the time specified in rule 14.47 to November 27, 2014 - However, it declined to exercise its discretion in Coleman's favour - Coleman was aware of the noncompliance issue on April 7, 2014, and did nothing for more than six months - His explanation for his inaction was not compelling - His delay had prejudiced the respondent - The likelihood his appeal would succeed was not sufficiently high to warrant the restoration of his appeal.

Cases Noticed:

Koerner v. Capital Health Authority et al. (2011), 515 A.R. 385; 532 W.A.C. 385; 2011 ABCA 131, refd to. [para. 25, footnote 13].

Shimp v. Seymour, [2008] A.R. Uned. 289; 2008 ABCA 390, refd to. [para. 25, footnote 13].

Cyren v. Nayebi - see Aldecoa v. Nayebi et al.

Aldecoa v. Nayebi et al. (2008), 429 A.R. 85; 421 W.A.C. 85; 2008 ABCA 130, refd to. [para. 25, footnote 13].

Watts Estate et al. v. Contact Canada Tourism Services Ltd. et al., [2004] A.R. Uned. 142; 2004 ABCA 245, refd to. [para. 25, footnote 13].

Phillips v. 707739 Alberta Ltd. et al. (2001), 286 A.R. 367; 253 W.A.C. 367; 2001 ABCA 219, leave to appeal denied [2002] 2 S.C.R. v; 295 N.R. 199; 327 A.R. 331; 296 W.A.C. 331 (S.C.C.), refd to. [para. 25, footnote 14].

Project Blue Sky Inc. v. Australian Broadcasting Authority (1998), 194 C.L.R. 355 (Austl. H.C.), refd to. [para. 29, footnote 17].

Tan v. Swyrd et al. (2013), 560 A.R. 214; 2013 ABQB 229, refd to. [para. 32, footnote 18].

Hytec Information Systems Ltd. v. Coventry City Council, [1997] 1 W.L.R. 1666 (C.A.), refd to. [para. 32, footnote 18].

Dahlseide v. Dahlseide et al., [2010] A.R. Uned. 256; 2010 ABCA 220, refd to. [para. 33, footnote 19].

Statutes Noticed:

Rules of Court (Alta.) (2010), rule 1.2(1), rule 1.7, rule 13.5, rule 14.2, rule 14.16, rule 14.47, rule 14.65, rule 15.16(1) [para. 17].

Authors and Works Noticed:

Asprey, M., Plain Language for Lawyers (4th Ed. 2010), p. 145 [para. 1, footnote 2].

Scalia, A., and Garner, B., Reading Law: The Interpretation of Legal Texts (2012), pp. 234 to 236 [para. 24, footnote 11].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 173, 174 [para. 24, footnote 11].

Counsel:

B.M. King, for the applicant;

S.J.L. Atkinson, for the respondent.

This application was heard on November 27, 2014, before Wakeling, J.A., of the Alberta Court of Appeal, who delivered the following reasons for decision on December 23, 2014.