Executive Summary: Key Legal and Evidentiary Issues

• Appeal was struck due to non-compliance with formatting and page limits for the appellant’s factum, despite an extension being granted.

• Applicant failed to provide an adequate explanation for missing deadlines and not complying with procedural requirements.

• Restoration of a struck appeal requires showing arguable merit, promptness, intention to proceed, and absence of prejudice; the applicant did not establish arguable merit.

• The underlying indemnification claim was previously determined to be an issue for trial, not for pre-trial application.

• The principle of res judicata and judicial efficiency weighed against allowing new arguments on indemnification before trial.

• Application to restore the appeal was dismissed as not being in the interests of justice.

Background and facts

This matter arises from ongoing litigation in the Court of King’s Bench involving Liliana Kostic and her former employers, CIBC World Markets Inc., CIBC Trust Corporation, and Raymond James Ltd. The dispute began in 2006 and has not yet proceeded to trial. As part of case management, legal filing restrictions were imposed. On March 12, 2024, the case management judge denied Ms Kostic’s request for leave to file an application relating to indemnification. Ms Kostic appealed this decision under the “fast track” process set out in rule 14.14 of the Alberta Rules of Court.

Ms Kostic was required to file a 12-page appellant’s factum by July 9, 2025. On that date, she attempted to file her appeal materials, but they were rejected for non-compliance with formatting and page limits. She requested an extension and permission to exceed the page limit. On July 11, 2025, the Case Management Officer granted an extension to July 16, 2025, but denied the request for an increased page limit. On July 16, 2025, Ms Kostic’s factum was again rejected for formatting issues and exceeding the page limit. She did not seek a further extension or permission before attempting to file her 30-page factum. Her appeal was automatically struck on July 17, 2025, in accordance with rules 14.24(1)(a) and 14.64(b).

Ms Kostic applied to the Court of Appeal of Alberta to restore her appeal. The respondents, CIBC parties and Raymond James Ltd., opposed the application. Ms Potts did not make submissions but, according to Ms Kostic, consented to the application.

Legal framework and analysis

When a fast track appeal has been struck, an application to restore must be filed as soon as reasonably possible and no later than three months after being struck (rule 14.47). The Court considers several factors: arguable merit of the appeal, reason for the defect or delay, applicant’s promptness, intention to proceed, and absence of prejudice to respondents. The applicant bears the onus of establishing that restoring the appeal is in the interests of justice.

The Court found that the appeal lacked arguable merit. The underlying decision was a discretionary procedural case management determination, entitled to significant deference. The case management judge had deferred consideration of indemnification to trial, consistent with previous appellate decisions. Ms Kostic argued she had new grounds for indemnification, but the Court noted that applicants are generally entitled to one opportunity to argue a cause of action, and res judicata prevents re-litigation of matters already decided. The Court agreed there was little merit to the appeal of the decision declining her request for leave to bring an application for indemnification and save harmless relief. Importantly, no court has ruled that Ms Kostic is not entitled to indemnification and save harmless relief; she retains the ability to argue her entitlement at trial.

Ms Kostic explained her failure to file a compliant factum as due to technical difficulties and being self-represented. The Court found this explanation inadequate, noting that lack of legal knowledge does not justify failing to meet timelines, and all parties have access to the Court’s Case Management Officers. Ms Kostic was provided with a seven-day extension and was made aware of the requirements. She did not apply for an additional extension before the deadline passed.

Ms Kostic applied to restore the appeal within the three-month timeline and acted with reasonable promptness. There was no allegation of prejudice by the respondents. However, the Court concluded that, despite promptness and lack of prejudice, Ms Kostic failed to provide an adequate explanation for the defect and did not demonstrate sufficient arguable merit.

Outcome

The Court held that, considering all circumstances, it would not be in the interests of justice to restore the appeal. The application to restore the appeal was dismissed. No exact amount was ordered or awarded in favor of any party. The successful parties in this decision were Raymond James Ltd., CIBC World Markets Inc., and CIBC Trust Corporation.