14.16: Filing the Appeal Record – standard appeals
14.47: Application to restore an appeal
14.64: Failure to meet deadlines

Case Summary

The Appellant applied to restore his Appeal of a decision dismissing his Application for Judicial Review. The Appellant’s Appeal was struck pursuant to Rules 14.16(3) and 14.64(a) because the Appeal Record was not filed on time.

Justice Ho reviewed Rule 14.47, which governs Applications to restore standard Appeals. Pursuant to Rule 14.47, such an Application must be filed and served as soon as reasonably possible, and returnable no later than six months after the Appeal was struck. In determining an Application to restore an Appeal, the Court will consider: (1) the arguable merit to the Appeal; (2) any explanation provided for the defect or delay which caused the Appeal to be struck; (3) whether there was reasonable promptness in moving to cure the defect and restore the Appeal; (4) whether there was an intention in time to proceed with the Appeal; and (5) whether there was prejudice to the Respondent, including due to the length of the delay.

Justice Ho observed that no single factor is determinative; the factors must be considered holistically in determining whether it is in the interests of justice to restore the Appeal.

In applying the factors to the matter at hand, Justice Ho held that there was arguable merit to the Appeal in light of the important legal issues raised. The Court also considered that the explanation for the delay had to do with errors caused by turnover at the Appellant’s counsel’s office, and was not attributable to the Appellant himself or any intention to take advantage of the stay which was in effect pending Appeal.

Justice Ho held that it was in the interests of justice to restore the Appeal, and therefore granted the Appellant’s Application.

View CanLII Details