Usually litigants will rely on their legal counsel to ensure
that deadlines are met, however a recent Alberta Court of Appeal
decision (Dagher v Stone, 2013 ABCA 119) opens the door for the
possibility that in some rare situations the court may place the
obligation on the litigants themselves.
The facts and circumstances surrounding this matter are unusual.
The plaintiff (applicant), Mr. Dagher, was involved in a number
motor vehicle accidents between 1992 and 1994. He filed three
actions in the Court of Queen's bench nearly twenty years
ago. There were 'seventeen or so' orders made in
relation to these actions, seven of which regarding
Dagher's failure to move the litigation forward. To be fair
to Dagher, some of the delays were beyond his control because for a
period of about two and a half years he was under a dependent adult
order (later lifted).
Nonetheless, in October of 2011, Clark J. declared Dagher in
civil contempt, and struck and dismissed all his claims for failing
to comply with court orders (among other things).
Dagher appealed. Dagher retained counsel and though the notice
of appeal was filed in time, it was not served and the deadline for
filing other materials were missed due to problems with the
diarization system in his counsel's office. After
considering the applicable rule (Rule 548 of the Alberta Rules of
Court, Alta Reg 390/68) Hunt J.A. was sympathetic and noted that,
given the finality of the Clark J. order, Dagher should be given
the opportunity to make his arguments against the order. Hunt J.A.
also noted that Dagher did provide some explanation for the delay
and that the respondents had not been especially prejudiced.
Hunt J.A. granted Dagher's application to extend the time
for notice of appeal and restored the appeal to the general appeal
list. Hunt J.A. directed that Dagher file the material by June
5, 2012, and added that if "the applicant breaches this order
or the Court of Appeal's Rules and Practice Directions, the
appeal will be struck without further application" (at para.
The Rules required Dagher's factum to be filed by
October 23, 2012. The factum was not filed and Dagher stated it was
because his counsel failed to do so for 'unknown
reasons'. Pusuant to Hunt J.A.'s order the appeal
was struck, and again, Dagher retained new counsel and appealed.
This time the appeal was dismissed. The respondents argued, and
Hunt J.A. agreed, that a more "arduous test should be applied
to a second restore application" (though no authority was
provided on this point, at para. 8). Hunt J.A. concluded that given
the history of this matter Dagher had to do more than "sit
back and wait for his counsel to act", adding that under the
circumstances "it was incumbent upon him [the Appellant,
Dagher] to ensure that his factum was filed on time" (at para.
10). Hunt J.A. decided that the respondents were entitled to move
forward without having this litigation "hanging over their
heads" (at para. 11).
The title of this blog post may be a bit alarmist given the
exceptionally rare circumstances pursuant to which this decision
was rendered. Nevertheless, it does stand to support the finding
that in similar situations clients may not be able to 'sit back
and wait for counsel to act', and it may be incumbent upon
them to ensure that documents are filed on time. However, given the
complexity of court procedures, retaining
counsel remains a litigant's best option at obtaining a
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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