Kehewin Cree Nation v. Mulvey et al., (2013) 556 A.R. 282

• Judge: Côté, O'Ferrall and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Wednesday September 04, 2013
• Citations: (2013), 556 A.R. 282;2013 ABCA 294

Kehewin Cree Nation v. Mulvey (2013), 556 A.R. 282; 584 W.A.C. 282 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. SE.021

Kehewin Cree Nation (respondent/appellant) v. Terry Mulvey (appellant/respondent) and Kehew Construction Ltd. (not a party to the appeal/respondent)

(1303-0023-AC; 2013 ABCA 294)

Indexed As: Kehewin Cree Nation v. Mulvey et al.

Alberta Court of Appeal

Côté, O'Ferrall and Veldhuis, JJ.A.

September 4, 2013.

Summary:

The plaintiff obtained judgment against the defendant in the Provincial Court. The defendant appealed to the Court of Queen's Bench. Section 46(3) of the Provincial Court Act required the defendant to file a transcript of the evidence within three months of filing the notice of appeal, unless he obtained, prior to that three month period expiring, a court order extending the time for filing the transcript. Section 48(1) provided that if s. 46 was not complied with "the appeal shall be dismissed". Two months after the three month period expired, the Queen's Bench judge extended the time to file the transcript. The plaintiff appealed.

The Alberta Court of Appeal held that the Queen's Bench judge had no power to extend the time to file the transcript after the three month period for doing so had expired. The extension order should not have been granted. The Queen's Bench judge should have dismissed the defendant's appeal. The court stated that since s. 53(2) of the Provincial Court Act precluded a further appeal from a decision of the Court of Queen's Bench, the court's decision could only state the law for further guidance. The court had no authority or power to affirm or reverse the Queen's Bench decision.

Practice - Topic 9002.10

Appeals - Notice of appeal - Extension of time for ordering transcript - Section 46(3) of the Provincial Court Act required that a party appealing a decision of the court to the Queen's Bench had to file a transcript of the evidence within three months of filing the notice of appeal unless, prior to that three month period expiring, the Queen's Bench judge extended the time for filing the transcript - Section 48(1) provided that if s. 46 was not complied with "the appeal shall be dismissed" - A defendant appealed judgment against him, but did not file a transcript within the three month period - Two months later, the Queen's Bench judge granted an extension of time to file the transcript - The Alberta Court of Appeal held that the Queen's Bench had no power to extend the time to file the transcript after the three month filing period expired - Once that three month filing period expired without a transcript being filed, and without an extension of time being granted "before" that three month period expired, s. 48(1) clearly mandated that the Court of Queen's Bench had to dismiss the appeal - However, since s. 53(2) of the Act precluded a further appeal from a decision of the Court of Queen's Bench to the Court of Appeal, the court was limited to stating the law for future guidance - The court had no authority to affirm and reverse the Queen's Bench decision - Whether the Court of Queen's Bench could reverse its erroneous decision was a matter for that court to decide - See paragraphs 1 to 34.

Practice - Topic 9758.1

Small claims - Appeals - General (incl. jurisdiction) - [See Practice - Topic 9002.10].

Practice - Topic 9761

Small claims - Appeals - Limitation period - [See Practice - Topic 9002.10].

Cases Noticed:

652013 B.C. Ltd. v. Glenmore Inn Holdings Ltd. (2010), 492 A.R. 374; 2010 ABQB 291, disagreed with [para. 5].

Strilets v. Vicom Multimedia Inc. (2000), 274 A.R. 6; 2000 ABQB 616, disagreed with [para. 5].

Pohr v. Hovelkamp, [2008] A.R. Uned. 643; 2008 ABQB 636, disagreed with [para. 5].

Walker v. Canadian Tire Corp. (1992), 128 A.R. 229 (Q.B.), disagreed with [para. 5].

G & G Sporting Goods Ltd. v. Hardowa (1993), 19 C.P.C.(3d) 341 (Alta. Q.B.), agreed with [para. 7].

Black Diamond Land and Cattle Co. v. Oasis Gardeners Ltd. (1996), 189 A.R. 318; 41 Alta. L.R.(3d) 307 (Q.B.), agreed with [para. 7].

Camex Equipment Sales & Rentals Ltd. v. Gourley et al. (1997), 215 A.R. 101 (Q.B.), agreed with [para. 7].

Dee Vee Electrical Ltd. v. Bradley, [2009] A.R. Uned. 568; 77 C.P.C.(6th) 257; 2009 ABQB 253, agreed with [para. 7].

Hansraj v. Ao et al. (2004), 354 A.R. 91; 329 W.A.C. 91; 2004 ABCA 223, refd to. [para. 9].

Glover v. Glover - see Glover v. Minister of National Revenue.

Glover v. Minister of National Revenue (1980), 29 O.R.(2d) 392 (C.A.), affd. [1981] 2 S.C.R. 561; 43 N.R. 271, refd to. [para. 9].

Tamglass American Inc. v. Richter, Allen & Taylor Inc. (2005), 380 A.R. 286; 363 W.A.C. 286; 2005 ABCA 341, refd to. [para. 10].

J.U. v. Regional Director of Child Welfare (Alta.) et al. (2001), 281 A.R. 396; 248 W.A.C. 396; 2001 ABCA 125, leave to appeal denied (2001), 283 N.R. 398; 299 A.R. 305; 266 W.A.C. 305 (S.C.C.), refd to. [para. 10].

Lakevold et al. v. Dome Petroleum Ltd. (1979), 181 A.R. 254; 116 W.A.C. 254 (C.A.), refd to. [para. 11].

B.D.W. v. G.B.G.R. (1989), 68 Alta. L.R.(2d) 377 (C.A.), refd to. [para. 11].

Yorkshire Trust Co. v. Mallett (1986), 71 A.R. 23 (C.A.), refd to. [para. 11].

Tymchak v. Subdivision and Development Appeal Board (Edmonton) et al. (2012), 519 A.R. 295; 539 W.A.C. 295; 2012 ABCA 22, refd to. [para. 11].

Northern Sunrise (County) v. De Meyer et al. (2009), 454 A.R. 88; 455 W.A.C. 88; 2009 ABCA 205, refd to. [para. 13].

Bahcheli v. Alberta Securities Commission et al. (2007), 409 A.R. 388; 402 W.A.C. 388; 2007 ABCA 166, refd to. [para. 13].

Rocky View No. 44 (Municipal District) v. McKinnon et al. (2009), 460 A.R. 280; 462 W.A.C. 280; 2009 ABCA 268, refd to. [para. 19].

Baron et al. v. Minister of National Revenue et al., [1993] 1 S.C.R. 416; 146 N.R. 270, refd to. [para. 19].

Racal Communications Ltd., Re, [1981] A.C. 374; [1980] 2 All E.R. 634 (H.L.), refd to. [para. 32].

R. v. Meltzer and Laison, [1989] 1 S.C.R. 1764; 96 N.R. 391; 49 C.C.C.(3d) 453, refd to. [para. 32].

R. v. Druken (J.K.), [1998] 1 S.C.R. 978; 228 N.R. 1; 166 Nfld. & P.E.I.R. 107; 511 A.P.R. 107; 126 C.C.C.(3d) 1, refd to. [para. 32].

Statutes Noticed:

Provincial Court Act, R.S.A. 2000, c. 31, sect. 46(1), sect. 46(3), sect. 48(1) [para. 2].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Civil Procedure Encyclopedia (2003), vol. 4, p. 76-22 [paras. 11, 13].

Counsel:

A. Lok, for the respondent/appellant, Kehewin Cree Nation;

M.J. Field and W.A. Dushenski, for the respondent/appellant, Terry Mulvey.

This appeal was heard on June 3, 2013, before Côté, O'Ferrall and Veldhuis, JJ.A., of the Alberta Court of Appeal.

On September 4, 2013, the judgment of the Court was delivered and the following opinions were filed:

Côté, J.A. (Veldhuis, J.A., concurring) - see paragraphs 1 to 34;

O'Ferrall, J.A. - see paragraphs 35 to 45.