Veldhuis ja

13.5: Variation of time periods
14.47: Application to restore an appeal
14.65: Restoring appeals
14.67: Security for costs

Case Summary

The Applicant, Clark, sought to have his Appeal restored after it was deemed abandoned pursuant to Rule 14.67(2) because he failed to post Security for Costs as ordered by the Court. Justice Veldhuis noted that Rule 14.65(1) permits a single Appeal Judge to hear an Application to restore an Appeal, and Rule 14.47 requires that such an Application be filed and returnable within six months of the Appeal being deemed abandoned. However, the Application was late, it was not filed until two days after the deadline, though Justice Veldhuis noted that the time to file the Application could be extended at the Court’s discretion under Rule 13.5.

Justice Veldhuis confirmed that the test for restoring an Appeal is whether the interests of justice allow the Appeal to proceed considering:

(a) Whether the applicant intended in time to proceed with the appeal;

(b) The applicant’s explanation for the defect or delay that cased the appeal to be struck or deemed abandoned;

(c) Whether the applicant moved with reasonable promptness to cure the defect and have the appeal restored;

(d) Whether the appeal has arguable merit; and

(e) Whether the respondents have suffered any prejudice (including taking into consideration the length of the delay).

Veldhuis J.A. noted that although the timeline to file the Application could be extended under Rule 13.5, the Applicant’s failure to comply with the six month deadline set out in Rule 14.47 was a factor which weighed against restoring the Appeal. Justice Veldhuis considered whether the Appeal had arguable merit, noting that the present Appeal was an Appeal from a Decision which struck the Applicant’s claim on the basis that it was identical to an Action which the Applicant had unsuccessfully brought to trial in 2012, and had subsequently lost on Appeal to the Court of the Appeal and which had not been granted leave at the Supreme Court of Canada. Justice Veldhuis found that the Action before the Court was identical to the original proceedings which had been thoroughly litigated. As such, the Appeal lacked arguable merit.

The Application was dismissed.

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