March 18, 2009

APPEAL TIME RUNNING: When an Order has not been issued

Filed under: 1 — ruleswatch @ 5:20 am
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In Luke v. Luke 2009 NSCA 23, Fichaud, J.A. sitting in Chambers, has confirmed that Rule 90.13(3) will not allow reasons issued after an Order has been issued to extend automatically the time for appeal. In Luke, the appellant had appealed but not perfected an appeal which was subsequently struck. She sought to revive the challenge when written reasons supporting the formerly challenged Order were issued long after it had been granted and, in the attempt, counted her time for the new appeal as running from the date of the reasons.

The Court pointed out that Rule 90.13(2) provides that the appeal is to be commenced starting with the date when the Order has been taken out. Rule 90.13(3) then provides for an alternative time, when the court below “has not issued an order”, the appeal may be started “…within the stipulated number of days after the decision, i.e. the reasons.” “This process is essentially the same as prescribed in the former Rule 62.02(1).”

However, the Rule still leaves open the possibility for late-blooming would be appellants to extend the fuse for appeals by delaying the resolution of the form of Order.


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