HOLDEN v HOLDEN, 2022 ABCA 341
14.24: Filing factums – fast track appeals
14.47: Application to restore an appeal
14.64: Failure to meet deadlines
14.65: Restoring appeals
The Defendant applied to restore his fast-track Appeal, which had been struck by the Registrar for his failure to file his Factum and Extracts of Key Evidence on time in accordance with Rule 14.24. The Defendant’s Appeal was therefore struck in accordance with Rule 14.64.
Rule 14.65 provides that where an Appeal has been struck by the Registrar, the Appellant must make an Application to a single Appeal Judge pursuant to Rule 14.47. Rule 14.47(a) requires restoration Applications to be filed and served “as soon as reasonably possible”, and returnable no later than three months after a fast-track Appeal has been struck. The element of filing and serving “as soon as reasonably possible” is unique to Alberta and came into effect on March 17, 2020. Unless extraordinary conditions exist, a Party must file a restoration Application within days.
The restoration test is clear and consists of four elements. However, it is onerous and difficult to meet. First, the Applicant must show “an unwavering commitment to prosecute the appeal from the date the applicant filed a civil notice of appeal to the date the Registrar struck the appeal”. Justice Wakeling suggested that the Applicant ought to state in a supporting Affidavit that the Appellant’s commitment to prosecute the Appeal had not wavered from the time the Appeal was struck until the restoration Application was filed. Second, the Applicant must explain the failure to file the Appeal Record, Factum, or Extracts of Key Evidence within the applicable time limits. The Court of Appeal stated that time limits are of fundamental importance. Third, and of utmost importance, the Applicant must satisfy the Court that the Appeal has a high enough chance of success to justify its restoration. Fourth, the restoration of the Appeal must not cause the Respondent undue prejudice, either in the form of litigation or non-litigation prejudice.
Lastly, there are two additional factors that the Court must take into account. If the Applicant has satisfied all four elements, the Court should restore the Appeal unless “a compelling reason supports the contrary disposition”. Conversely, if the Applicant fails to clear all four hurdles, the Court should refuse to restore the Appeal unless exceptional circumstances apply.
The Defendant failed to file his restoration Application “as soon as reasonably possible”; rather, he waited 51 days after the Registrar had struck his Appeal. He also failed to clear the four elements of the restoration test. The Defendant’s Application to restore his Appeal was therefore dismissed.View CanLII Details