14.23: Filing factums – standard appeals
14.55: Responsibility of parties to manage an appeal
14.65: Restoring appeals

Case Summary

The Applicants sought to restore their Appeal, which had been struck for failing to file their factum in time pursuant to Rule 14.23(1). The Applicants attempted to file their factum one day after the applicable deadline, because they had mis-diarized the deadline. Rule 14.65 allows a struck appeal to be restored either by written consent of the parties or by order of a single appeal judge. The Applicants sought consent from the Respondent to restore the appeal, but the Respondent declined to provide its consent.

The Court of Appeal held that the Applicants met the test for restoring a struck appeal, because it was in the interests of justice to do so. To determine whether restoring an appeal is in the interests of justice, the Court may consider the following: (1) whether there is arguable merit to the appeal; (2) any explanation for the defect or delay; (3) whether the applicant moved reasonably promptly in moving to cure the defect and have the appeal restored; (4) timely intention to proceed with the appeal; and (5) potential prejudice to the respondents, including the length of the delay. Antonio J. found that the Appeal had already been found to have arguable merit in a prior decision. She also found that the one-day delay in filing was explained by a simple diarization error, and that a mere slip of counsel will not prevent restoration of an appeal, because some human error is inevitable in the legal system. Further, the one-day delay was only a minor temporal error. Antonio J. also found that the Applicants moved quickly, and as promptly as possible to have the Appeal restored, with a timely intention to proceed to the Appeal.

Finally, the Court of Appeal held that there was no prejudice to the Respondent. The Respondent did not claim any prejudice, and merely explained that they were frustrated with repeated procedural delays, for which they blamed the Applicants. The Court of Appeal found that past delays in the matter were not solely or primarily the fault of the Applicants. Moreover, the Respondent did not oppose restoration of the Appeal because it had no basis for doing so. Antonio J. also highlighted Rule 14.55(1) in respect of responsible party management and found that responsible management of an appeal includes reacting responsibly to non-prejudicial slips.

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