GRAY v MCNEILL, 2017 ABCA 376
14.15: Ordering the Appeal Record
14.16: Filing the Appeal Record – standard appeals
14.47: Application to restore an appeal
The Applicant, McNeill sought to restore his Appeal which was struck because he had not filed his Appeal Record within four months of the date he filed his Notice of Appeal, and because he had taken an additional 5 months to apply for the Appeal to be restored. O’Ferrall J.A. noted that pursuant to Rule 14.47, an Application to restore a standard Appeal must be filed, served, and returnable within 6 months of the Appeal being struck. The Applicant had met that deadline – his Appeal was struck on April 21, 2017, and he filed his Application to restore the Appeal on September 8, 2017. However, Justice O’Ferrall stated that the Court of Appeal has “repeatedly attempted to make it clear” that when an Appeal is struck, an Appellant must move quickly to Apply for its restoration. Waiting until the end of the period to restore an Appeal is generally not acceptable.
O’Ferrall J.A. noted that the Applicant ordered his Appeal Record approximately 28 days after filing the Notice of Appeal. Pursuant to Rule 14.15(1)(a), an Appellant must order or start preparing the Appeal Record within 10 days of filing a Notice of Appeal. Further, the Applicant failed to file his Appeal Record within 4 months, as required pursuant to Rule 14.16(3)(b).
Justice O’Ferrall stated that, to determine whether to restore an Appeal, the Court must consider a number of factors, reframed in recent leading authority as six questions:
Has the applicant demonstrated an unwavering intention to prosecute the appeal throughout the time period following the filing of the Notice of Appeal?
Did the applicant provide an adequate explanation for both his failure to file the appeal record on time and his failure to promptly apply to restore his appeal when it was struck?
Did the applicant move with sufficient expedition to cure the defect?
What are the prospects of the appeal’s success? Does the appeal have any merit?
Will restoration of the appeal prejudice the respondent to an unacceptable degree?
O’Ferrall J.A. held that the Appeal was not “strong”. Although the Courts use a low standard to determine whether an Appeal has merit, and while the Applicant’s explanation for delay in preparing the Appeal Record was explainable and excusable, the delay in resuming the Appeal was not. O’Ferrall J.A. held that the Applicant did not have an “unwavering intention” to prosecute the Appeal and, along with other factors, it was not in the interest of justice to restore the Appeal. The Application to restore the Appeal was dismissed.