Ho J

1.2: Purpose and intention of these rules
4.33: Dismissal for long delay
6.14: Appeal from master’s judgment or order

Case Summary

The Plaintiffs in four related Actions collectively sought to restore their Appeal of a Master’s Decision which had dismissed the Actions for long delay pursuant to Rule 4.33. The Appeal had been struck for failure to file a Brief within the timeline mandated by Court of Queen’s Bench Civil Practice Note 2 relating to Special Applications.

As no authority was provided for the test to be applied when considering whether to restore an Appeal from a Master pursuant to Rule 6.14, Justice Ho relied on the ample authority available regarding restoration of matters before the Court of Appeal. Specifically, the Court cited with approval the factors fulsomely summarized by Wakeling J.A. in Warren v Warren, 2019 ABCA 20 (CanLII): (1) Is there any reason to conclude that the Applicant, at any time after filing the notice of Appeal, did not intend to prosecute the Appeal? (2) Has the Applicant provided an explanation for the deficiency that prompted the Registrar to strike the Appeal? If so, is the explanation consistent with an intention on the part of the Appellant to advance the Appeal? (3) Has the Applicant moved with sufficient expedition to cure the defect, taking into account the nature of the defect? (4) Are there arguable grounds in support of an Appeal? Is the likelihood of success high enough to conclude that it is not a frivolous Appeal? (5) Will the restoration of the Appeal cause the Respondent any prejudice? If so, is it appropriate to require the Respondent to endure this prejudice?

Moreover, it was noted that no single factor is determinative, and that the factors together guide the Court in analyzing whether restoration would be in the interest of justice.

In reviewing the circumstances at hand against these factors, Justice Ho was not convinced that restoration would be in the interest of justice. Of chief importance was the Plaintiffs’ limited chance of success in overturning the dismissal for long delay, as well as the Plaintiffs’ general pattern of delay contrary to the general expectation of timeliness under Rule 1.2. The Application was dismissed.

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