Legalviews Personal

The Court of King’s Bench filing problems may be at a new nadir.

A self-represented appellant had a statutory right to file an appeal. No legislation said how that was to be accomplished, though the statute did give a time limit for appealing.

It was customary to start appeals under this statute by filing an Originating Notice. This appellant carefully drafted (or had prepared) a completely correct Originating Notice, and an affidavit whose filing no one later criticized. Being self-represented, the appellant went to the counter to file these. The Clerk thought the affidavit too long (probably for dubious reasons), and would not file either document. But the Clerk did mention Family Docket Court. The appellant went there and got from a judge a fiat allowing filing.

Back at the counter, the Clerk filed the documents. But the Clerk did not put a new file number in the blank on the Originating Notice, and instead filled in an existing file number from a different (but likely related) lawsuit. And the Clerk crossed out the word “Originating” in the title of the new pleading before filing it.

A King’s Bench justice later charitably suggested that the Clerk may have become confused by “a labyrinth of filing forms and procedures and ... triages” imposed and published by the Court of King’s Bench. That could well be the case.

The respondent, doubtless delighted with the Clerk’s eccentricity, argued that this was all a nullity, that a simple Application could not start an appeal, and that none of this was curable because the deadline for filing had since passed.

The justice did cure the situation, pointing out that in all material aspects, the appellant had done things correctly (and on time). If there was any mistake or flaw, it was the Clerk’s. The appellant was not asking to have his own work corrected. The errors were the court’s, not a litigant’s. The work to correct was the court’s. The justice distinguished one Court of Appeal precedent, probably correctly. One could suggest several other good reasons why the justice was correct and there was nothing incurable here (such as the fiat and lack of legislation about form under this statute). But the reasons given suffice.

Had the appellant had a lawyer, the filing counter would have been off-limits, the papers would never have been filed, and the argument that there was no timely appeal would have been plausible.

As the justice hinted, and frequent recent procedural decisions show, someone should do something to prevent and cure all the recurring filing messes, insuperable barriers, and gross injustices. They have gone on too long.

See De Meyer v. Pedora 2025 ABKB 682 (Nov 25).

– Hon. J.E. Côté

RESTORING CORRECT FILINGS