Executive Summary: Key Legal and Evidentiary Issues

• Justice Hawkes considered an application under Rule 14.37(c) of the Alberta Rules of Court to extend the time for filing a notice of appeal.
   
• Dentists who left an original clinic to start a new practice took patient records with them, sparking a dispute over custody.
   
• Timing of the appeal deadline turned on whether it ran from when the order was pronounced or from when it was later settled and filed.
   
• Counsel disagreed over whether the records of unresponsive patients should remain with the original clinic or the departing dentist.
   
• Both parties' counsel confirmed the patient-notification process was well underway and expected to conclude soon.
   
• The court found the appeal moot because the underlying records issue would be resolved before any appeal could be heard.
   

Facts of the case

This application arose from the breakup of a dental clinic. Faissal Mouhamad and other dentists abruptly left the clinic operated by 42nd Dental Inc., doing business as Amara Dental, to start a new practice. Mouhamad took all patient records with him, asserting he was a custodian of those records under the Health Information Act, RSA 2000, c H-5. This left the remaining dentists and denturists at the original clinic without records and unable to treat their patients. On April 21, 2026, they filed an Originating Application seeking injunctive relief, and an urgent chambers hearing followed on April 24, 2026. With the parties' agreement, the hearing focused on establishing a process for notifying patients so they could choose to stay at the original clinic, move to the new clinic, or select a different provider.

After the order was granted, counsel could not agree on its written terms, particularly regarding custody of records for patients who did not respond during the notification process. Mouhamad's position was that unclaimed records should remain with him; the respondents argued they should stay at the original clinic. The Chambers Justice, invoking Rules 9.2 and 9.3 of the Rules of Court due to the delay in settling the order, directed that the records should stay at the original location, consistent with the view she believed she had expressed at the hearing. She invited the parties to either agree to this term or reappear to argue the point. Counsel for the applicant advised on May 6, 2026, that the issue remained disputed, and the Justice responded on May 8, 2026, directing the parties to file a form of order and arrange a further appearance. That order, including the disputed retention term, was filed on May 19, 2026, and served on May 20, 2026. Mouhamad filed a Notice of Appeal on June 4, 2026, which the case management officer confirmed on June 8, 2026, was late, triggering the need for this extension application.

Policy and legislative provisions at issue

The application was brought under Rule 14.37(c) of the Alberta Rules of Court, AR 124/2010, which governs extensions of time to file and serve a notice of appeal. Rule 14.8(2)(a)(iii) was central to determining when the appeal clock began to run. Rules 9.2 and 9.3, addressing delay in settling a disputed order, were invoked by the Chambers Justice to resolve the impasse over the order's wording. The parties' underlying obligations as records custodians were governed by the Health Information Act, and Mouhamad's stated concern for compliance related to the bylaws of the College of Dental Surgeons of Alberta.

Reasoning and analysis

Justice Hawkes noted that the interpretation of Rule 14.8(2)(a)(iii) is settled: the appeal period runs from when the order was pronounced, not from when it was later settled or entered. Citing Big Plans for Little Kids v Souster, 2021 ABCA 73, and Kure v Kure, 2017 ABCA 215, he explained that disputes over the form of an order do not extend the deadline, and delay in settling a contested order is not a valid excuse for missing the appeal period. In the absence of a transcript, the best evidence that the disputed retention term had been addressed at the April 24, 2026 hearing was the Chambers Justice's own account confirming she had expressed a view on the issue at that time. Accordingly, the appeal clock began running from April 24, 2026, making the June 4, 2026 Notice of Appeal late and an extension necessary.

Turning to the merits of the extension, the well-established test set out in Cairns v Cairns (1931), 26 Alta LR 69 (CA) at 69, 1931 CanLII 471, required Justice Hawkes to consider whether the proposed appeal had a reasonable chance of success. He observed that the mechanism created by the order had already been operating for some time, with both clinics contacting affected patients and transferring records according to their choices. Counsel for both sides confirmed this process was well underway and expected to finish soon, with any unclaimed records remaining under a dentist's control as required by the Health Information Act and the College's bylaws. Neither party claimed a proprietary interest in the records. Applying the mootness principles from CM v Alberta, 2024 ABCA 136, and Ranchland (Municipal District No 66) v Alberta Energy Regulator, 2026 ABCA 206, Justice Hawkes found the appeal would have no practical effect and no live controversy remained, since the records-transfer process would be complete well before an appeal could be heard. He further noted that Mouhamad's stated purpose — ensuring his own compliance with College of Dental Surgeons of Alberta bylaws — reduced the appeal to an essentially advisory question about which practice should retain any remaining records. Counsel for Mouhamad could not confirm whether the College had even been asked for direction, and Justice Hawkes held that an appeal to the Court of Appeal was not a substitute for taking that step.

Ruling and overall outcome

Justice Hawkes dismissed the application. The respondent, 42nd Dental Inc. operating as Amara Dental, succeeded in opposing the extension, as the proposed appeal was found to be moot and without arguable merit. The decision does not address costs or any monetary award — it deals solely with the timeliness and viability of the appeal — so no amount can be determined from the reasons provided.