The Applicant failed to file his Appeal Record and transcript by the relevant deadline, and the Appeal was struck pursuant to Rule 14.64. The Applicant made an Application to restore the Appeal. The Application was adjourned to provide time for the Applicant to obtain a transcript of the Trial Judge’s reasons, but the Applicant twice failed to file the transcripts for formatting flaws. As the Appeal was not restored within six months, it was deemed abandoned pursuant to Rule 14.65. The Applicant then retained counsel an applied to restore the abandoned Appeal.

The Court denied the Application. The test for restoring an abandoned Appeal is the same as for restoring a struck Appeal. The Court will consider five factors: (a) whether the Appeal has arguable merit; (b) whether the Applicant intended in time to proceed with the Appeal; (c) what explanation is offered by the Applicant for the defect or delay which caused the Appeal to be struck or deemed abandoned; (d) whether the Applicant moved with reasonable promptness to cure the defect and have the Appeal restored; and (e) whether the Respondents have suffered any prejudice, which includes consideration of the length of delay. The onus is on the Applicant to provide evidence on the five factors.

Antonio J.A. stated that discretion to restore an Appeal should be used sparingly, and with a view to the interest of justice. To establish arguable merit, the Applicant need only show that the Appeal is not frivolous or hopeless. The Court found that the Applicant failed to provide transcripts or other materials to support certain alleged errors, and that the delay would prejudice the Respondent. Given the lack of demonstrated merit to the Appeal, the weak justifications for the delay, and the prejudice to the Respondent, the Court declined to restore the abandoned Appeal.