Permission to Appeal Application – Application to Strike
In this decision, the Alberta Court of Appeal (“ABCA”) considered an application by Value Creation Inc. (“VCI”) (the applicant/respondents in the underlying appeal) to strike an amendment to the original permission to appeal application by Mr. and Mrs. Percy of an AER decision dated December 7, 2017 (the “Original AER Decision”). The Percys (the respondent/appellants in the underlying appeal) amended their permission to appeal application to add a January 29, 2018 AER decision confirming the Original AER Decision (the “January 29 Decision”).
For the reasons summarized below, the ABCA dismissed the application to strike.
Ground for Application
VCI applied to strike out the Percys’ amendment to the original permission to appeal application on two alleged grounds:
(a) separate appeals are required for separate orders, and applications for permission to appeal two separate orders cannot be combined together in one application; and
(b) even though the original application was amended within the time limit, the 30 day period for filing an appeal from the January 29 Decision has now run, without an application for permission to appeal being filed.
Separate Appeals for Separate Orders
The ABCA held that there was no absolute rule that a separate application for permission to appeal must be brought for every order. Where one proposed appeal is about a substantive decision, and the other proposed appeal is about an order refusing to reconsider the first decision, there is no practical reason to insist on two appeals. The ABCA found that there was accordingly nothing inappropriate about the form of the amended application filed by the respondents.
Section 45(6) of the Responsible Energy Development Act (“REDA”) provides that appeals to the Court of Appeal “shall proceed in accordance with the practice and procedure of the Court of Appeal”. While the Rules of Court anticipate a separate appeal for every order or judgment, the ABCA noted that Rule 14.9 recognizes that there are some situations where it is more efficient to combine appeals together. One of these situations is where “the appeal is of a decision that varies, confirms, explains, or provides for the enforcement of a previous decision, and the previous decision is also being appealed.”
Limitation Period
VCI’s second argument was that the time to appeal the January 29 Decision had now run, and if it could strike out the amendment to the original application, then no application had been brought within the 30-day time limit.
The ABCA found that since the application to strike was unsuccessful, this argument did not arise.
Conclusion and Costs
The ABCA noted that applications for permission to appeal are brought before single judges of the Court and can be set down and heard without delay. It would generally be inefficient and inappropriate to bring interlocutory applications to strike out parts of other interlocutory applications. The ABCA found that the arguments that the applicant (VCI) made in the context of the application to strike should have been made before the judge who heard the application for permission to appeal. If the applicant’s arguments had any merit, presumably that would have resulted in the application for permission to appeal being dismissed.
The ABCA found that, in the circumstances, the application was unnecessary and the respondents were entitled to assessed costs of the application.
