The Applicant, C.C., sought an Order restoring his Appeal of a Decision under the Child, Youth and Family Enhancement Act, RSA 2000, c C-12. The underlying Appeal was struck for failure to file the Appeal Record in accordance with the Rules. The Appeal was subsequently deemed abandoned in accordance with Rule 14.65(3) because three months had passed since the Appeal was struck.

Berger J.A. stated that the Application to restore the Appeal could still be heard, but additional considerations applied. His Lordship stated that an Order to restore an abandoned Appeal is discretionary; the Court is required to take into account:

1.      Whether there is a reasonable and sufficient explanation for the delay;

2.      Whether there was a timely intention to proceed with the appeal;

3.      Whether the appeal has arguable merit;

4.      Whether the delay will unduly prejudice the respondent.

Justice Berger stated that the prejudicial effect of delay on interested Third Parties must also be considered. In the circumstances, Berger J.A. rejected C.C.’s submission that the success at the Appeal would not in any way jeopardize the children involved in the dispute. Berger J.A. found the opposite to be true. The un-contradicted Affidavit evidence of the case worker established a pattern of behaviour on the part of C.C. that thwarted rather than furthered the administration of justice in the case. In the result, the Application to restore the Appeal was dismissed.