Executive Summary: Key Legal and Evidentiary Issues

• Walczak's appeal was deemed abandoned after failing to post security for costs as ordered by a justice of this Court in chambers.

• Application to restore the appeal was brought under rules 14.47 and 14.65 of the Alberta Rules of Court but did not meet the threshold established in Parker v Parker, 2019 ABCA 300.

• No security for costs had been posted nor was sufficient evidence adduced to demonstrate financial inability to comply with the order.

• Underlying allegations of unlawful foreclosure by Home Trust Company, assisted by Hendrix Law, were not directly before the Court of Appeal.

• Procedural defaults at earlier stages — including missed deadlines for serving the appeal and filing a transcript — contributed to the dismissal of the applicant's extension-of-time application.

• The Court concluded this was not the rare case warranting restoration of an appeal despite non-compliance with a security for costs order.

Background and facts of the case

Sylwester Walczak brought litigation against Hendrix Law Barristers & Solicitors and Home Trust Company, alleging that Home Trust Company had unlawfully foreclosed on his property several years earlier with the assistance of its counsel, Hendrix Law. An applications judge dismissed Walczak's claim. Walczak appealed the applications judge's decision to dismiss his claim to a justice of the Court of King's Bench, but he missed the deadlines for serving the appeal on the respondents and for filing a transcript. A chambers justice dismissed the applicant's application for an extension of time, in large part on the basis that the appeal did not have a reasonable prospect of success.

The appeal to the Court of Appeal of Alberta

It is the dismissal of the application to extend time that is the subject of Walczak's appeal to the Court of Appeal of Alberta. However, a justice of the Court of Appeal ordered him to post security for costs. When Walczak failed to comply with that order, his appeal was deemed abandoned. His application for permission to appeal the security for costs order to a panel of the Court was also dismissed in Walczak v Hendrix Law, 2025 ABCA 398.

The application to restore the appeal

Walczak then applied to restore his abandoned appeal, relying on rules 14.47 and 14.65 of the Alberta Rules of Court, Alta Reg 124/2010. The Honourable Justice April Grosse considered the application in light of the framework set out in Parker v Parker, 2019 ABCA 300. In Parker, Chief Justice Khullar reviewed the factors the Court usually considers when deciding whether to restore an appeal and concluded that it will rarely be in the interests of justice to restore an appeal struck for failure to post security for costs in accordance with an order, and that at a minimum the applicant must have posted — or have tried to post — the security by the time the restoration application is heard; otherwise, an order for security for costs would become toothless.

Walczak's arguments and the evidentiary gap

Walczak argued that he was unable to post security due to financial circumstances created by the respondents. However, Justice Grosse found that he had not adduced evidence to establish that proposition on a balance of probabilities. Most of Walczak's submissions focused on his underlying position regarding the foreclosure and the applications judge's dismissal of his claim — matters not directly before the Court of Appeal. Justice Grosse acknowledged that the applicant is frustrated by what he perceives to be a pursuit of justice thwarted by procedural barriers or legal doctrines that do not focus on the merits of his underlying complaints, but noted that the chambers justice had heard submissions for approximately 45 minutes, much longer than the usual time permitted for an application in morning chambers, specifically questioned the parties relating to the likely merits of the appeal from the decision of the applications judge, and gave reasons for his decision.

Ruling and outcome

Viewed objectively, Justice Grosse determined that this was not the rare case where the interests of justice require restoration of the appeal, notwithstanding the failure to comply with the security for costs order. The application to restore the appeal was dismissed, with Rule 9.4(2)(c) invoked so that the Court would prepare the resulting order. The respondents — Hendrix Law Barristers & Solicitors and Home Trust Company — were the successful parties. No specific monetary award was ordered in this decision, as the ruling solely concerned the procedural question of whether to restore the abandoned appeal.