The Plaintiff’s Appeal was struck pursuant to Rules 14.16(3) and 14.64(a) for failing to file the Appeal Record in time. Counsel for the Plaintiff subsequently presented a proposed copy of the Appeal Record to the Clerk, which confirmed that the records were in proper form. The Plaintiff Applicant then sought to restore his Appeal, pursuant to Rule 14.47, and filed an Affidavit which set out the reasons why he failed to file on time. Wakeling J.A. referred to Rules 14.15(1), 14.16(3), 14.20(1), 14.47(a), 14.64(a) and 14.65(3) stating that an Appeal may be restored when it is in the interests of justice to do so. The Court will consider such things as whether the Applicant intended to prosecute the Appeal; provided an explanation for the deficiency; moved with sufficient expediency to cure the defect; has arguable grounds in support of an Appeal; and has caused any prejudice to the Respondent.

Justice Wakeling held that the Appeal should be restored: the Plaintiff had demonstrated a clear intent to prosecute the Appeal; the error was due to counsel’s misunderstanding that the Appeal tribunal would commence preparation of the record of proceedings; the Plaintiff applied promptly to restore; the Appeal was not frivolous; and there was no prejudice to the Respondent.