The Applicant, Bokenfohr, applied for relief after her Appeal of a Case Management Decision was struck for failure to file the Appeal Record. Bokenfohr filed the Notice of Appeal of the Decision in time; however, she failed to appreciate the expedited timelines for filing the Appeal Record in a Fast Track Appeal.

Bokenfohr filed a second Appeal of the same Decision after the Case Management Justice issued a Variation Order. Bokenfohr argued that the appeal period was unclear because of the Variation Order. Rowbotham J.A. disagreed and confirmed that the Variation Order did not change the operation of Rule 14.8 in this case. The appeal period commenced on the date of the initial Reasons for Decision of the Case Management Justice, following which Bokenfohr had one month to file an Appeal, which she did. Rowbotham J.A. further clarified that the normal practice for dealing with revisions or variations to a Judgment is to amend the Notice of Appeal unless the grounds of Appeal stem solely from the amended reasons, which was not the case here.

However, the Court noted its discretion under Rule 14.73(b) to cure a contravention of procedure. The factors to be considered include the reason for the delay, whether the Applicant has shown an intention to proceed with the Appeal, whether there is prejudice to the Respondent, and whether the Appeal has merit. Rowbotham J.A. concluded that these factors weighed in favour of exercising the Court’s discretion. Ms. Bokenfohr had shown a continuous interest in pursuing her Appeal, and the delay only occurred because she had misapprehended the filing deadlines. Moreover, Rowbotham J.A. was satisfied that the Appeal raised arguable issues. Therefore, the Court ordered that the Appeal be restored.

Rowbotham J.A. concluded by stating that the Appeal Record should contain “any prior order, reference to which is required to resolve the appeal” as per Rule 14.18(1)(c)(iv), and the Extracts of Key Evidence should only include the materials required to resolve the issues on Appeal as per Rule 14.27(1).