greckol jA

14.16: Filing the Appeal Record – standard appeals
14.47: Application to restore an appeal
14.64: Failure to meet deadlines
14.65: Restoring appeals

Case Summary

The Appellant applied under Rule 14.47 to restore its Appeal which was struck under Rule 14.64 for failing to file the Appeal record within the four month timeline prescribed by Rule 14.16. The Appellant did not file its Application to restore the Appeal until five months after having discovered its Appeal had been struck. The hearing of its Application was then adjourned for a further month, resulting in the Appeal being deemed abandoned for not having been restored within six months of being struck pursuant to Rule 14.65.

Justice Greckol noted that there are five factors to consider when deciding whether an Appeal should be restored: 1) arguable merit; 2) explanation for the delay causing the Appeal to be struck; 3) reasonable promptness in moving to restore the Appeal; 4) unwavering intention to proceed with the Appeal; and 5) potential prejudice to the Respondents. Justice Greckol noted that all factors must be assessed together to determine whether restoring the Appeal is in the interest of justice. Justice Greckol also noted that exceptional circumstances are required to restore an Appeal which has been deemed abandoned – a higher threshold than for restoring appeals which were only struck.

Justice Greckol found that the Appellant failed to demonstrate that its Appeal had arguable merit, as it failed to provide any law or evidence to support its grounds for Appeal. Greckol J. A. did find that the Appellant’s explanation for the delay causing the Appeal to be struck was reasonable, as it was due to a mistaken belief that the transcripts had been ordered. Justice Greckol found that the Appellant moved promptly to order the transcripts once the mistake was discovered, however, waited five months after being notified that the Appeal had been struck to file the Application to restore the Appeal.

Justice Greckol noted that the Appellant did not demonstrate an unwavering intention to proceed with the Appeal, as no Affidavit was provided confirming an unwavering intention to proceed, and the Appellant had only ordered the transcripts and requested the Respondents’ consent to restore the Appeal over the course of several months. Further, the Appellant knowingly adjourned the Application to restore the Appeal to a date where the Appeal would be deemed abandoned.

In considering prejudice to the Respondents, Justice Greckol found that the Respondents were entitled to consider the proceedings against them to be final as eleven months had passed from the date of the Order under Appeal. Given the casual manner the Appellant pursued the Appeal, Justice Greckol held it would not be in the interest of justice to restore it.

The Application to restore the Appeal was dismissed.

View CanLII Details