Alberta Court of Appeal refuses to restore appeal delayed by lawyer's illness

Father opposed order granting vaccine authority for children to mother

Alberta Court of Appeal refuses to restore appeal delayed by lawyer's illness

The Alberta Court of Appeal has refused to restore a father’s appeal relating to vaccination decisions for his children that had been struck due to counsel’s delay in filing the required factum in court.

In Holden v. Holden, 2022 ABCA 341, a chambers judge granted the mother sole decision-making authority for her three children with respect to COVID-19 vaccines. In exercising this authority, she was required to consult with the family pediatrician about the advisability of vaccinating the children. The children’s father opposed the vaccination andapplied for a fast-track appeal of the chambers judge decision.

Under the Alberta Rules of Court, a fast-track appellant must file and serve a factum within the set deadline under the Rules. Theodore failed to comply with this deadline and, consequently, his appeal was struck. Fifty-one days after he was notified that the Registrar had struck his appeal, Theodore applied for an order restoring his appeal, despite the requirement under the Rules that an application to restore an appeal that had been struck must be filed and served as soon as reasonably possible. The appeal court ruled that Theodore failed to file his restoration application “as soon as reasonably possible,” given that 51 days had elapsed from the time he was notified that his appeal had been struck.

Theodore claimed that because his counsel was ill, he was not able to file the factum on the deadline. He also asserted that there would be no prejudice to Eva if the appeal was restored because the issue of getting the children vaccinated was “not urgent.” On the other hand, Eva alleged that Theodore subscribed to the belief that vaccine science is fake and he had used the delay in the proceedings to “wage a campaign to instill fear of vaccines in the children.”

Restoration test

The court said that an appeal judge may restore a struck appeal if it is in the interests of justice to do so. The restoration test requires the applicant to demonstrate four factors. First, he must show an unwavering commitment to prosecute the appeal. Second, the applicant must provide an adequate explanation for the failure to file an appeal record, factum, or extracts of key evidence within the time limits set out in law. Third, the applicant must show that the prospects of success are high enough to justify its restoration. Fourth, the applicant must demonstrate that the restoration of the appeal will not cause the respondent undue prejudice.

Counsel’s delay

After considering each factor of the restoration test, the appeal court decided to rule in Eva’s favour and dismissed Theodore’s restoration application. The court said that an applicant must provide an adequate explanation for any delay in applying for a restoration application beyond several days. The court also warned that, “a lawyer who has failed to meet a deadline that has caused the Registrar to strike an appeal should give careful consideration to the role he or she plays in the restoration application.”

The court said that if Theodore’s counsel was unable to prepare the restoration application on an expedited basis due to her illness, she should have notified either the Registrar or the case management officer as well as Eva’s counsel of her serious medical condition and its impact on her ability to meet the timelines. At the very least, according to the court, Theodore’s counsel should have asked the Registrar or the case management officer for an extension of time to file the factum and Eva’s counsel for her consent to such an order.

According to the court, Theodore’s plight was solely attributable to his counsel’s failure to file his restoration application in a timely manner or make alternative arrangements. However, Theodore was “responsible for the missteps of his counsel” since he was the one who selected his legal representative.

Failure to satisfy other elements of test

Tthe court further found that even if Theodore had filed his application within the “as soon as reasonably possible” timeline established under the Alberta Rules, he failed to meet the other elements of the restoration test. The likelihood that Theodore’s appeal would succeed, if restored and perfected, was extremely low, said the court, adding that his chance of succeeding on appeal was “no more than 10 percent.”

The appeal court took judicial notice of the fact that Health Canada had authorized for use specific vaccines for children and had said that the benefits outweighed the risks. The court further found that the chambers judge gave careful consideration to all the appropriate factors before deciding to assign the mother the responsibility of determining whether it is appropriate to have the children vaccinated against COVID-19. The chambers judge also sensibly directed the mother to consult with the family pediatrician before making a final decision.

 “Common sense dictates that chambers judges, when considering which parent should have COVID-19 decision-making authority, should focus on the well-known positions adopted by Health Canada, Alberta Health Services, Canada’s National Advisory Committee on Immunization, and the United States’ Advisory Committee on Immunization Practices,” said the court.

The court was satisfied that granting the father’s restoration application would prejudice the mother and the children. There were also no compelling circumstances that would justify restoring the father’s appeal even though he had not cleared all the factors under the restoration test.

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