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. 3).
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 desirable outcome.