The Applicants applied for permission to Appeal the Decision of a single Appeal Justice who had dismissed an Application to restore the Applicants’ Appeal (the “Dismissed Restoration Application”). The underlying Appeal had been struck in accordance with Rule 14.64 because the Applicants had failed to meet the applicable deadlines to file their Appeal Record and transcripts. The Appeal was later deemed abandoned per Rule 14.65(3). The Dismissed Restoration Application was dismissed on the basis the test to restore an Appeal had not been met.

The Court set out that permission to Appeal will only be granted in accordance with Rule 14.5(2) where the Applicant can demonstrate that there is: (1) a question of general importance, (2) a possible error of law, (3) an unreasonable exercise of discretion, or (4) a misapprehension of important facts. The Court noted that, under the first prong, the factors that are to be considered in assessing whether a question justifies another level of review include: the perceived strength of the argument, the importance of the issue to the Parties and legal system as a whole, a reasonable chance of success, and that the Appeal is not frivolous. 

The Court rejected the Applicants’ submissions, finding that prejudice to the Applicants was not a consideration and that each case was to be considered according to its own factual matrix.

More specifically, the Court found that there was no issue of general importance; the Dismissed Restoration Application was an exercise of discretion in which none of the applicable factors were met. The Court additionally noted that the length of delay and the explanation for the delay outweighed any new evidence, and that evidence had only been proffered by one of the Applicants. 

The Court declined to grant permission to Appeal and specified that granting permission to Appeal to three Justices is an “extraordinary exercise” of the Court’s authority.