On May 7, 2014, in Wadden v. BMO Nesbitt Burns, the Nova Scotia Court of Appeal granted a motion to extend the time for filing a Notice of Appeal under Civil Procedure Rule 90.37(12)(h). The Nova Scotia Supreme Court had dismissed the applicants’ actions on September 27, 2013. In a subsequent order on January 30, 2014, the applicants were ordered to pay costs. The applicants then sought to file a notice of appeal from both orders on February 11, 2014. It was rejected as being out of time with respect to the September 27, 2013 order. The applicants sought an extension for filing their notice of appeal.
In objecting to the extension of time, BMO argued that the applicants had not established that the proposed grounds for appeal were worthy of appellate intervention. BMO made reference to the trial transcript, the parties’ submissions and the trial decision.
In granting the motion, Farrar J.A. stated that the “exercise of discretion to extend the time to file a notice of appeal is highly contextual and turns on whether the interests of justice require it” (para. 12). He held that a judge may take into consideration the strength or weaknesses of an appeal, but that it is not the judge’s “role to conduct the in-depth analysis suggested by BMO to determine if the appeal is meritless” (para. 16). Only in cases where the proposed grounds of appeal are “clearly without merits” would the interests of justice militate against allowing an extension (para. 17). Farrar J.A. held that the applicants raised arguable issues and that the interests of justice required that the time to file a notice of appeal be extended.