Possible uncertainty in the process wasn't enough to explain length of delay
The Court of Appeal for Saskatchewan has ruled that a five-month delay does not justify an extension of time to appeal for a self-represented litigant.
In the case of Choquette v. Viczko, 2022 SKCA 11, Joseph Viczko died in 2011. In his will, he declared that he intended to sell all his land and distribute the proceeds equally between his daughters, Yvonne Choquette and Donna Boots. However, a piece of land was not sold at the time died. Boots, the executor of Joseph’s will, sold the land to her and Choquette’s brother, David Viczko. Choquette commenced an action to set aside the sale and transfer, claiming that it was not in good faith because it was for less than fair market value and that her consent was required for the sale. The chambers judge granted summary judgment in favor of Choquette, but the judgment was set aside on appeal and remitted back to the lower court.
The chambers judge held that the sale did not require Choquette’s consent. Choquette had withdrawn her allegation that the sale was for less than fair market value, so the judge dismissed the claim. Five months after, she filed an extension of time to file an appeal.
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In an application for an extension to file an appeal, the appellate court considers four factors: whether there was a bona fide intention to appeal, whether the respondent will suffer prejudice if extension is granted, whether the party seeking the extension has acted with reasonable diligence or has reasonable explanation for delay, and whether there is an arguable case to be made.
The appellate court ruled that while two factors – the intention to appeal and a lack of prejudice suffered by the respondents – pointed in favor of granting the extension, the other two did not. After consideration, the appellate court dismissed the application.
The court noted that Choquette chose to represent herself on appeal and filed a notice of appeal on time. However, because the notice was incomplete, the court’s registry office had advised and reached out to Choquette regarding this deficiency several times before she filed the application five months later.
The court considered that Choquette as a self-represented litigant might have been uncertain on how to proceed. But, ultimately, even if it “[viewed] things in the light most favourable to Ms. Choquette, she has no reasonable excuse for approximately three of the roughly five‑month delay in bringing her application,” said the court.
Further, the appellate court ruled that the case also lacked sufficient merit. Choquette had not identified an arguable issue in the chambers judge’s decision to approve the sale of land over Choquette’s objections because not only would the sale be beneficial to all parties, reversing the sale would “plunge the estate … into a morass of complication and the promise of even more litigation.”
Considering all the factors, the appellate court concluded that Choquette’s application be dismissed.
