LUX v LUX, 2019 ABCA 95
14.15: Ordering the Appeal Record
14.16: Filing the Appeal Record – standard appeals
14.47: Application to restore an appeal
The Applicant sought to restore an Appeal from a Trial Decision dealing with matrimonial property and spousal support. Preparation of the Appeal Record had properly been commenced within 10 days of the filing of the Notice of Appeal in compliance with Rule 14.15. The Applicant, however, failed to file the Appeal Record within four months of the filing of the Notice of Appeal pursuant to Rule 14.16, and the Appeal was struck as a result. Five and a half months after the Appeal was struck, the Applicant applied to restore the Appeal.
The Court first set out the five factors to be considered in restoration of an Appeal, and proceeded to consider each factor in turn. First, with respect to the “timely intention to proceed with an appeal” factor, Justice Khullar considered the Applicant’s financial limitations in compiling the Appeal Record, and the Applicant’s misguided efforts in transferring the Action to Edmonton, in contrast to the Respondent’s emphasis on the incomplete state of the Appeal Record at the time of the Application’s hearing, some 10 months after the filing of the Notice of Appeal. Justice Khullar concluded that the Applicant demonstrated a timely intention to proceed with the Appeal.
Second, with respect to the “explanation for delay” factor, Justice Khullar again considered the Applicant’s financial hardship, along with his family circumstances, but held that the Appeal Record was prepared in a leisurely fashion, inconsistent with a serious intention to proceed with the Appeal.
Third, with respect to the “reasonable promptness” factor, Justice Khullar considered the filing of the restoration Application late in the six month time period prescribed under Rule 14.47. While such delay was found to be relevant to the intention to proceed with an Appeal, and moreover militated against a finding of “reasonable promptness”, Justice Khullar held that the delay in filing the Application was not dispositive of the success of the Application.
Fourth, with respect to the “potential prejudice” factor, Justice Khullar considered the delay caused by the Appeal in the Respondent’s use of funds flowing from the Judgment at Trial. Justice Khullar held that restoration would cause further delay, and therefore some prejudice, but not enough prejudice for this factor to be of significant weight.
Fifth, with respect to the “arguable” factor, Justice Khullar considered the Applicant’s intent to contest findings of fact, and the challenge that would present by operation of the relevant standard of review. However, the Court also noted that the Applicant need only show that the Appeal is not “absolutely hopeless or frivolous”, and held that the Applicant was successful in satisfying this low bar.
The Application to restore the Appeal was granted, though with imposition of certain deadlines for filing the Appeal Record and Factums. Khullar J.A. directed that should the Applicant fail to meet these deadlines, the Appeal was to be automatically struck.View CanLII Details