The Applicants sought to restore an Appeal to the general list, after the Appeal had been struck by the Deputy Registrar for non-compliance with filing deadlines. Rule 515.1 was referred to, as the former Rules continue to apply to Appeals to the Court of Appeal (Rule 14.1).

The conditions precedent to restoring an Appeal that had been struck were set out in Koerner v Capital Health Authority, 2011 ABCA 131, citing 707739 Alberta Ltd. v Phillips, 2001 ABCA 219. The principles from those cases provide:

(a)  the restoration of an Appeal struck via Rule 515.1(7) is discretionary;

(b)  all relevant matters must be considered;

(c)  counsel inadvertence will generally not prevent restoration;

(d)  restoration may be denied where the Appeal lacks merit;

(e) restoration may be denied where the Appellant shows no intention of proceeding with the Appeal;

(f)  restoration may be denied where there is prejudice to the Respondent; and,

(g)  restoration may be denied where there is not a reasonable explanation for a lengthy delay.

The Court allowed the Appeal, holding that there was no appreciable delay in bringing the Motion to restore, and the Applicant provided a reasonable excuse attributable to inadvertence for the failure to file the materials.