Executive Summary: Key Legal and Evidentiary Issues

• An occupational drug test returned positive results for cocaine and marijuana, which the appellant alleged were false and sought to have re-tested by an independent third party.

• The appellant obtained an ex parte order without serving the originating application on the respondent or informing them of the hearing date.

• CannAmm no longer possessed the oral fluid sample, as the entirety of it had been sent to the Clinical Reference Laboratory in the United States.

• Filing of the notice of appeal exceeded the 10-day appeal period for applications judge's orders under r 6.14(2) of the Alberta Rules of Court, Alta Reg 124/2010, and no affidavit evidence was filed to explain the delay.

• No evidentiary basis was presented to support the appellant's application for loss of income, an apology, and reinstatement.

• Permission to appeal under r 14.5(1)(b) of the Alberta Rules of Court appeared to be required but was neither sought by the appellant nor raised by the respondent.

The drug test and initial dispute

On September 6, 2023, Kevin Benjamin Prezes used the services of CannAmm OTS Limited Partnership to obtain an occupational drug test by providing an oral fluid sample. The initial screening revealed a non-negative result, so CannAmm sent the sample to one of its laboratories in Ontario for further analysis. The test came back positive for cocaine and marijuana. Prezes objected to these results and requested that CannAmm send the sample for secondary testing. CannAmm sent the sample to Clinical Reference Laboratory, an independent laboratory located in the United States. The laboratory tested the sample and confirmed CannAmm's test results.

The ex parte application and its consequences

On January 29, 2025, Prezes filed an originating application alleging the test results were false and that the sample needed to be sent to an independent third party to be re-tested. On February 12, 2025, Prezes appeared ex parte before an applications judge. He did not serve the originating application on CannAmm or inform them of the hearing date. The applications judge granted an order directing CannAmm to provide Prezes's sample to a third-party laboratory of his choosing. When Prezes served the order on CannAmm, the company informed him through several exchanges that it did not have the sample anymore, and that the entirety of the sample had been sent to the Clinical Reference Laboratory in the United States.

The July 2025 hearing and the setting aside of the original order

On July 14, 2025, the parties appeared before the same applications judge. Prezes sought a further order for loss of income, an apology, and reinstatement, relying on his understanding that the applications judge had ordered CannAmm to give the sample to a third party to be retested. CannAmm cross-applied to set aside the ex parte original order and to have the second application dismissed on the merits. The applications judge set aside the original order as it had been made without notice to CannAmm and dismissed Prezes's new application as there was no evidentiary basis for the relief sought. The order arising from that decision was filed July 22, 2025.

The late appeal and the chambers judge's decision

Prezes filed a notice of appeal of the second order in the Court of King's Bench on August 22, 2025. On August 29, 2025, CannAmm filed a cross-application to dismiss the appeal, as Prezes had filed it outside the 10-day appeal period for applications judge's orders, contrary to r 6.14(2) of the Alberta Rules of Court, Alta Reg 124/2010. Prezes then filed an additional application on September 9, 2025, repeating the same or similar allegations. The chambers judge heard the appeal and the cross-application on September 22, 2025. The chambers judge noted that Prezes had not filed any affidavit evidence explaining why the appeal had been filed late. In oral argument, Prezes claimed that the registry staff had said he had 30 days to 60 days to appeal a judge's order. The chambers judge granted CannAmm's cross-application and dismissed the appeal because the notice of appeal had been filed late. She explained that even if she had accepted that Prezes had been provided the wrong information about the time limit, the appeal had no merit because CannAmm did not have the sample in its possession.

The Court of Appeal's analysis and the Cairns test

On appeal to the Court of Appeal of Alberta, Prezes submitted that his appeal to the Court of King's Bench should not have been dismissed because the registry staff provided him with incorrect information about when he needed to file his notice of appeal. He asked that the chambers judge's decision be overturned and his appeal restored. The Court considered the established five-factor test from Cairns v Cairns for extending the time limit to file an appeal, which examines whether the applicant had a bona fide intention to appeal while the right existed, whether the explanation for the delay excuses or justifies the late filing, whether the other party has been prejudiced by the delay, whether the applicant benefited from the judgment under appeal, and whether the appeal has a reasonable prospect of success. The Court noted that the last factor, if not met, is often decisive, as extending time for hopeless appeals is of no benefit to anyone, citing Stoddard v Montague, 2006 ABCA 109 at para 21. The Court further noted it would only interfere with the chambers judge's discretionary decision on that basis if the chambers judge committed a palpable and overriding error, per Housen v Nikolaisen, 2002 SCC 33 at para 36.

The ruling and outcome

The Court of Appeal also observed that an appeal from a decision regarding a time limit requires permission to appeal per r 14.5(1)(b) of the Alberta Rules of Court, citing Rath & Company Barristers & Solicitors v Sturgeon Lake Cree Nation, 2022 ABCA 373. It appeared that permission may have been required in this case, but it was not sought by Prezes, nor was the issue raised by CannAmm. The Court declined to decide whether permission was required because it had no submissions on that point. Assuming the appeal was properly before the Court, the panel of Justices Antonio, Friesen, and Shaner found that the chambers judge's decision on the merits branch of the Cairns test was correct and therefore decisive. The appeal was dismissed, and costs were awarded to CannAmm OTS Limited Partnership in the amount of $1,000.