Owners-Condominium Plan No. 802 2845 v. Haymour, (2015) 602 A.R. 201

• Judge: Wakeling, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: July 02, 2015
• Citations: (2015), 602 A.R. 201;2015 ABCA 234

Owners-Condo. Plan No. 802 2845 v. Haymour (2015), 602 A.R. 201; 647 W.A.C. 201 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JL.062

The Owners Condominium Plan No. 802 2845 (respondent) v. Anis Najib Haymour (applicant)

(1403-0160-AC; 2015 ABCA 234)

Indexed As: Owners-Condominium Plan No. 802 2845 v. Haymour

Alberta Court of Appeal

Wakeling, J.A.

July 9, 2015.

Summary:

Haymour applied to restore an appeal struck on December 18, 2014, pursuant to rule 14.23(1) and deemed abandoned on June 18, 2015, pursuant to rule 14.65(3).

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 8907

Appeals - Procedure - Restoring appeal to general list - [See Practice - Topic 9205 ].

Practice - Topic 9205

Appeals - Abandonment of appeal - Reinstatement of abandoned appeal - Rule 14.47 of the Alberta Rules of Court stipulated that an application to restore a struck appeal had to be filed, served and made returnable within six months after the appeal having been struck - The Registrar struck Haymour's appeal on December 18, 2014 - The six-month deadline expired on June 18, 2015 - Haymour served his restoration application on June 19, 2015 and it was not returnable until July 2, 2015 - His appeal was deemed abandoned effective June 19, 2015 - Haymour applied to restore his appeal - The Alberta Court of Appeal, per Wakeling, J.A., dismissed the application - Haymour had not provided any explanation for his failure to apply for a restoration order in a timely manner - The court would not exercise its jurisdiction under rule 13.5(2) and extend the deadline from June 18, 2015 to July 2, 2015 - Had the court extended the deadline for filing a restoration application, it would have dismissed Haymour's restoration application - There was not sufficient merit in Haymour's restoration application to justify granting it - He had not presented a compelling reason to do so - He provided no explanation for his failure to file his factum on time - His appeal had no reasonable prospects of success and granting Haymour's application would prejudice the respondent.

Cases Noticed:

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. 28, footnote 8].

Cairns v. Cairns, [1931] 4 D.L.R. 819 (Alta. C.A.), refd to. [para. 37, footnote 13].

Keef v. Peters, [2015] A.R. Uned. 4; 2015 ABCA 16, refd to. [para. 40, footnote 14].

Leung v. Clark et al. (2001), 286 A.R. 112; 253 W.A.C. 112 (C.A.), refd to. [para. 40, footnote 14].

R. v. Garrioch (D.J.), [2015] A.R. Uned. 91; 2015 ABCA 180, refd to. [para. 46, footnote 15].

Sohal v. Brar, [1999] 7 W.W.R. 345; 223 A.R. 141; 183 W.A.C. 141; 68 Alta. L.R.(3d) 44 (C.A.), refd to. [para. 52, footnote 19].

R. v. Letiec (S.A.) (2015), 600 A.R. 48; 645 W.A.C. 48; 2015 ABCA 123, refd to. [para. 54, footnote 20].

Statutes Noticed:

Rules of Court (Alta.), rule 13.5(2), rule 13.5(3), rule 14.23(1), rule 14.47(a), rule 14.65(1), rule 14.65(3), rule 15.16(1) [para. 9].

Counsel:

Anis Najib Haymour, the applicant, in person;

B.S. Sussman, for the respondent.

This application was heard on July 2, 2015, before Wakeling, J.A., of the Alberta Court of Appeal, who delivered the following reasons for decision on July 9, 2015.