The Applicants applied to restore their Appeal which was struck as a result of their failure to file their Appeal Record within the 4 month period set out in Rule 14.16(1)(3)(b). The Applicants submitted that although their Appeal Record was filed in an improper format, it was filed on time and so their Appeal should be restored. Justice O’Ferrall noted that the factors in the test to restore an Appeal are:

(a) arguable merit to the appeal;

(b) the explanation for the delay or defect that caused the appeal to be taken off the list;

(c) reasonable promptness in moving to cure the defect and have the appeal restored;

(d) whether there was a timely intention to proceed with the appeal; and

(e) potential prejudice to the respondents (including the length of the delay).

Justice O’Ferrall considered the limited materials filed along with the Notice of Appeal, and held that they did not constitute an Appeal Record pursuant to Rule 14.18. The Application to restore the Appeal was therefore dismissed.