The Applicants, EXP Mining Equipment Rentals Inc. (“EXP”) and Gordon Chaban (“Chaban”) applied to restore their Appeal after it was struck pursuant to Rule 14.23(1) and 14.64(b).

McDonald J.A. noted that the Notice of Appeal was prepared and filed by Chaban on behalf of himself and EXP, though Chaban was not a lawyer and was not a party in the Court of Queens Bench proceedings. At the time of the Application, EXP was represented by counsel. Justice McDonald stated that, while Rule 2.23 allows a non-lawyer to assist a party before the Court with limited support, it does not allow the non-lawyer to breach the Legal Professions Act, RSA 2000 c L-8. His Lordship noted that the Legislature could have allowed the directors of a closely held corporation to represent the corporation, but it did not do so. Justice McDonald held that the Notice of Appeal as it pertained to EXP was not a nullity, but Chaban had no status in the Appeal.

McDonald J. noted that the decision to restore an appeal is discretionary, and reviewed the non-determinative factors a Court considers when deciding whether to restore an appeal, including:

(a) arguable merit to the appeal;

(b) an 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) lack of prejudice to the respondents (including the length of the delay).

His Lordship concluded that, while EXP met some of the factors, it failed to show that there was arguable merit to the Appeal. As such, the Application to restore the Appeal was dismissed.