The Applicant failed to file his Appeal Record and Transcripts within the four months mandated by Rule 14.16, and it was struck. The Applicant applied to have the Appeal restored.

Justice O’Ferrall summarized the Court of Appeal’s recent decision in Taylor v 1103919 Alberta Ltd, 2015 ABCA 201 (CanLII), which set out the test for restoring an Appeal that had been struck for failure to comply with a filing requirement. The five factors to be reviewed are: (i) arguable merit to the Appeal; (ii) explanation for the defect or delay which caused the Appeal to be struck; (iii) reasonable promptness in moving to cure the defect, (iv) intention in time to proceed with the Appeal; and, (v) lack of prejudice to the respondents, which includes considerations of the length of delay. Justice O’Ferrall went on to note that none of these factors are determinative and a failure to meet one of the factors is not fatal to Application. All of these factors must be weighed together to determine whether, overall, it is in the interest of Justice to permit the Appeal to be restored.

Justice O’Ferrall noted that both parties had moved forward diligently, there was always an intent to challenge the trial Judge’s decision, and the Respondent in fact conceded that there was no prejudice. On balance, the interest of Justice favoured restoring the Appeal.