The Plaintiff commenced 10 related Actions against over 100 Defendants. The Actions were under case management. The Plaintiff’s Application to recuse the Case Management Justice for an apprehension of bias was dismissed, and the Plaintiff appealed. When the Appeal was struck for failing to file the Appeal Record in time, the Plaintiff applied to restore it.

Schutz J.A. noted that there are five factors relevant in determining whether to restore an Appeal: arguable merit to the Appeal; an explanation for the defect or delay which caused the Appeal to be taken off the list; reasonable promptness in moving to cure the defect and have the Appeal restored to the list; intention in time to proceed with the Appeal; and lack of prejudice to the Respondents (including the length of delay). Justice Schutz noted that none of these factors are individually determinative. A failure to meet one of the factors is not fatal, because all of the factors are considered when determining whether it is in the interests of justice to restore an Appeal. Her Ladyship noted that the Plaintiff intended to appeal in time, was reasonably prompt in moving to restore the Appeal, and there was no prejudice occasioned by the delay. Schutz J.A. observed that the Plaintiff’s explanation for the delay was deficient, but that ought not to be dispositive of the Application in this case.

With respect to arguable merit, Her Ladyship noted that deference was to be granted to the Case Management Justice in deciding whether to recuse himself. Additionally, Rule 4.13 authorizes a Case Management Judge to perform the functions specified in Rule 4.14, and the Plaintiff’s concern about Case Management neither created nor supported a reasonable apprehension of bias. As such, the Plaintiff did not meet the burden of demonstrating arguable merit for the Appeal, and the Appeal was not restored as a result.