Rule 530.5: Transcripts of Oral Testimony

Case Summary

Cameron Corporation (“Cameron”) applied to restore an Appeal which had been struck for Cameron’s failure to file the Transcript and Appeal Digest. The Appeal related to a Subdivision and Development Appeal Board Decision granting a Development Permit to the Respondent. The relevant Bylaws created a Stay of the Permit until the conclusion of the last stage of the Appeal process. Côté J.A. held that Cameron could effectively prevent the development and tie up the land in question simply by filing an Appeal, which is the opposite of the usual rule regarding Stays of Execution.

Côté J.A. noted that one criterion for restoring an Appeal is a reasonable explanation for the delay. Cameron claimed that the delay was due to a miscommunication between them and their counsel. Côté J.A. held that this was not an adequate explanation for the delay. It is improper to file an Appeal and then do nothing with it, and a solicitor cannot properly accept instructions to take such a course of action. Further, there was evidence before the Court that a similar Appeal had been struck for non-prosecution.

Côté J.A. found that there was evidence of prejudice to the Respondent if the Appeal was restored. Further, Côté J.A. held that with diligence the Appeal may have already been argued on the merits and decided. On such facts, Côté J.A. held that it was tempting to deny the Motion and leave the Appeal struck.

Finally, Côté J.A. held that Cameron would be granted a final chance to restore the Appeal, but that they would not be compelled to do anything. If the Appellants wished to have the Appeal restored, they would have to comply with all of the conditions set by Côté J.A. by 3:00 p.m. on the fourth business day following the date of the Reasons for Decision. Such conditions included: filing the Appeal Record, Factum and Extracts of Evidence; providing $18,000 to be held as Security for Damages and Costs; and filing a Notice of Motion returnable before Côté J.A. to fix a timetable for the Appeal. If any of the conditions were not met within the time fixed, then the Appeal would remain struck.

View CanLII Details