14.65: Restoring appeals

Case Summary

This was an Application for permission to restore an Appeal pursuant to Rule 14.65. In previous proceedings, it was held that the Applicant had failed to file his Appeal Record by the deadline contrary to Rule 14.16(3), and the Applicant’s Appeal was therefore struck pursuant to Rule 14.64(a).

Pentelechuk J.A. stated that the discretionary test for restoring an Appeal pursuant to Rule 14.65 requires consideration of the following factors: (a) arguable merit to the Appeal; (b) an explanation for the defect or delay; (c) reasonable promptness in moving to cure the defect; (d) intention in time to proceed with the Appeal; and (e) lack of prejudice to the Respondents. Justice Pentelechuk noted that the Applicant bears the onus of showing that the Appeal would be in the interests of justice.

The Applicant’s reasons for missing the deadlines included: limited literacy, poor health, lack of funds, and difficulty securing Legal Aid. Pentelechuk J.A. noted that the Applicant had not filed an Affidavit setting out these reasons, nor taken any steps to file the Appeal Record. After surveying the Applicant’s reasons for non-compliance with the deadlines, Pentelechuk J.A. held that the Applicant had not satisfied the above test and dismissed the Application.

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