LI v MORGAN, 2020 ABCA 186


9.4: Signing judgments and orders
13.5: Variation of time periods
14.16: Filing the Appeal Record – standard appeals
14.23: Filing factums – standard appeals
14.47: Application to restore an appeal
14.65: Restoring appeals

Case Summary

Heng Li (the “Appellant”) applied to restore an Appeal that was struck (the “Underlying Appeal”) when the Appellant failed to file his Appeal Factum before the deadline pursuant to Rule 14.23(1) (the “Application”). Slatter J.A. noted that the Underlying Appeal would also have been deemed abandoned in the ordinary course on April 16, 2020, when the Appellant had also failed to have the Underling Appeal restored within six months of it being struck pursuant to Rules 14.47 and 14.65(3)).

Justice Slatter reviewed these Rules and the applicable jurisprudence and noted the following considerations to restore an Appeal after the six-month deemed abandonment: (a) the explanation for the delay; (b) the explanation for the delay in applying to restore the Appeal; (c)      a continuing intention to proceed with the Appeal; (d) a lack of prejudice to the Respondent; and (e) the arguable merit of the Appeal.

His Lordship found that the Appellant had no explanation for the delay in moving to restore the Underlying Appeal, other than the Appellant’s erroneous view that he could wait until the eve of the six-month deadline. Justice Slatter emphasized, among other things, that the Rules also have an administrative component, because after the six months has passed, the Registry can regard an Appeal as “finished”, and the file can be closed and archived.

In weighing these considerations, Slatter J.A. found that while the Court has the discretion under Rules 13.5(2) and 14.2(3) to extend most deadlines, including the six-month deadline in Rules 14.47 and 14.65(3), the Appellant had not established that the Underlying Appeal should be restored. Accordingly, Slatter J.A. concluded by dismissing the Application and awarding the Respondent Costs fixed at $1,250 plus GST. His Lordship added that approval of the Appellant as to the form of Order was not required under Rule 9.4(2)(c) and (d).

Justice Slatter also noted that the Appellant had applied in the Underlying Appeal to add the Respondent’s counsel, an insurance adjuster, and the Respondent’s insurance company as parties to the Underlying Appeal (the “Additional Parties”). His Lordship found that the Additional Parties would not have been proper parties at Trial and would therefore not be proper parties on Appeal. His Lordship found that had it been necessary to deal with this portion of the Underlying Appeal, it too would have been dismissed.

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