The Appellants, JAV International Ventures Ltd, applied for an Order restoring their Appeal after the Registrar had struck it due to the Appellants failure to file their Factum within the required deadline pursuant to Rule 14.23. Berger J.A. considered the factors that the Court should consider in determining if an Appeal should be restored after being struck for failing to comply with filing requirements. Berger J.A. stated that the Court should consider whether there was: an explanation for the defect or delay which caused the Appeal to be struck; reasonable promptness in moving to cure the defect; intention and time to proceed with the Appeal; arguable merit to the Appeal; and a lack of prejudice to the Respondent (including the length of delay). Justice Berger also noted that none of these considerations are determinative on their own.

Berger J.A. held that the Appeal had arguable merit and that the Appellants intended to proceed with the Appeal in a timely fashion. His Lordship also took into consideration the compelling explanation for the delay; however, there was a five-month period where no action was taken. Justice Berger held that the Appellants had not prosecuted their Appeal with diligence, and this delay had caused the Respondent prejudice. The Appellants’ Application to restore their Appeal was dismissed.