14.47: Application to restore an appeal

Case Summary

This was an Application pursuant to Rule 14.47 for the restoration of an Appeal.

The Appeal was struck as a result of the Applicants’ failure to file their Appeal Record and transcripts by the deadline. The Applicants adduced Affidavit evidence from their counsel explaining that the 14-month lapse between the filing deadline and the Application to restore was due to an oversight by him and his office.

The Court noted five non-determinative factors for assessing whether an Appeal should be restored: (1) whether the Applicant intended in time to proceed with the Appeal; (2) what explanation is offered by the Applicant for the defect or delay which caused the Appeal to be struck or deemed abandoned; (3) whether the Applicant moved with reasonable promptness to cure the defect and have the Appeal restored; (4) whether the Appeal has arguable merit; and (5) whether the Respondents have suffered any prejudice, which includes consideration of the length of delay.

Applying these factors to the record before it, the Court noted that there was no evidence the Applicants intended to proceed with the Appeal during the relevant time, and that the 14 months between the Appeal being struck and the restoration Application permitted an inference that they did not. Further, though there is no rigid rule that an error by counsel is an insufficient explanation for delay, in this case, counsel’s failure to notice that the deadline had lapsed for over a year, despite advice from both the Court and opposing counsel to that effect, precluded a finding of any reasonable explanation. As to promptness and prejudice, the Court found that the Application had not been promptly pursued and that the Applicants’ failure to append the missing materials to their Application to restore indicated the Appeal would not be promptly pursued, resulting in presumed prejudice to the Respondent. The Appeal’s merits could not be assessed on the available record, though the Court commented that the prospect of success appeared low.

Accordingly, the Application was dismissed.

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