In Frog Lake First Nation v 2250657 Alberta Ltd, 2025 ABKB 206, the Honourable Justice Douglas R. Mah (Edmonton) clarified three things: what it means to have “commenced” an appeal under Section 46(1) of the Alberta Arbitration Act, what it takes for a document to be considered filed, and when the Court may exercise its discretion to deem a late filing as on time. The decision also offers practical guidance for what to do when you're up against a filing deadline that’s about to expire.

Background

By way of background, the Applicant wanted to appeal an arbitration award, and, pursuant to Section 46(1) of the Arbitration Act, they had 30 days to “commence” their appeal. The Applicant’s counsel made numerous attempts to have their appeal materials filed, but the clerks refused to file their submissions. After a great deal of frustration, the Applicant finally managed to get the appeal filed 7 weeks late. They then brought an application to deem the appeal as commenced on time. 

Such an application may strike some as odd, after all, Courts do not have the authority to enlarge legislated deadlines, and this includes the 30-day deadline set out in Section 46(1) of the Arbitration Act. However, Alberta Justices have inherent jurisdiction to control their own proceedings and process.[1] This means, in certain situations, a Justice has the authority to overcome the express effect of a Rule of the Alberta Rules of Court. So how does this work in relation to Section 46(1) of the Arbitration Act?

The word “commenced” in Section 46(1) is not legislatively defined. In his ruling, Justice Mah clarified that an appeal is “commenced” when a document is filed (as opposed to having been sent in for filing). Pursuant to Rule 13.15, a document is “filed” when a clerk stamps the document “filed”. Following from this, if a Court deems a notice of appeal as having been filed in time, this has the effect of deeming the appeal commenced on time. 

Precedent - When Late Materials Deemed as Filed On Time

There is precedent for this. In Alvarez v Alvarez, the Court was willing to deem materials as having been filed on time because the materials were sent in on time, but the clerks took a month to file the materials, and so the Court was willing to deem the document as having been filed on time.[2]  In Davis v Davis, the clerk refused to file the submissions (even though these materials were not defective) and the clerk directed them to attend family docket court to obtain directions, which caused the materials to be filed late, and so they were willing to consider the materials as having been filed on time.[3]

When Late is Still Late: The Court’s Reasoning

In this case, Justice Mah refused to deem the appeal as having been filed on time. Justice Mah noted the Applicant’s problems with the clerks were red herrings. He observed that the Applicant’s materials were sent in at 5:06 p.m. on the date of the filing deadline, which is after the filing counter had closed. He found the filing of documents has a “lead time” that parties must account for (the time between submitting something in for filing and the filing of a document). He emphasizes that Rule 13.15 is the default position; a document is filed when it is stamped “filed”. The authority to overcome the express effect of a Rule should be exercised sparingly and only in the most obvious cases of unfairness. In this case, it was not the Court’s fault that the submissions were sent in at a time of day when the clerks could not process the materials before the limitation deadline expired. 

Justice Mah noted the lead times involved with filing are well publicized and is something that needs to be accounted for. At paragraph 32, Justice Mah wrote, “An imminent limitation expiry sometimes calls for desperate measures,” and he suggests Applicant counsel could have:

1. Tried calling the clerk’s Office to say that a Notice of Appeal was coming in by email right away and to watch for it because it had to be filed that day; 
2. Brought an urgent without notice application on the filing deadline for a direction or fiat that the clerk’s Office immediately file a document. Justice Mah notes these applications are sometimes made in regular Civil Chambers, or
3. Obtained an agent more familiar with Alberta’s procedures to file the materials for them, as a part of the Applicant counsel’s submissions revolved around their lack of familiarity with Alberta’s filing process. 

Given Justice Mah also notes the specific process for sending materials in for filing where there is an imminent expiry of limitation periods at paragraph 31, presumably compliance with this process would also be factored into whether he would exercise his discretionary authority.[4] 

Conclusion

In brief, this case illustrates factors Justices will consider when considering whether to deem materials as having been filed on time. It is not enough to submit documents for filing on or before the expiry of the limitation period. Getting something filed on time means a clerk stamped the document as “filed”. Consequently, filing submissions must account for the lead times, and where a limitation deadline looms large, counsel had better be ready to break the glass and take emergency measures. 

[1] Frog Lake First Nation v 2250657 Alberta Ltd, 2025 ABKB 206 at para 42; see also Davis v Davis, 2023 ABKB 242 at paras 100-101

[2] Alvarez v Alvarez, 2021 ABQB 717 at para 18

[3] Davis v Davis, 2023 ABKB 242 at paras 102-106

[4] Alberta Courts - October 19, 2022 Announcement Regarding Email Filing: If your limitation period or Court ordered or statutory deadline is within 3 days or within the current lead time, whichever is longer, please indicate Urgent Limitation Period in the subject line before the designated naming convention and send the documents for filing. Please include the date of the deadline in the body of the email.