wakeling JA

14.15: Ordering the Appeal Record
14.16: Filing the Appeal Record – standard appeals
14.20: Contents of Appeal Record – appeals from tribunals
14.47: Application to restore an appeal
14.64: Failure to meet deadlines
14.65: Restoring appeals
14.37: Single appeal judges

Case Summary

The Applicant, MacLeod, sought an Order restoring her Appeal after it had been struck by the Registrar for failing to file the Appeal Record in time. The Court noted that the Applicant had properly applied to have her Appeal restored under Rule 14.47 by making the Application returnable within six months of it having been struck. The Court observed that Rule 14.37(1) provided that a single Appeal Judge had the jurisdiction to decide this Application on the basis that the Application was considered incidental to the Appeal.

Wakeling J.A. set out the criteria that the Court should consider when contemplating the restoration of an Appeal:

1.         Is there any reason to conclude that the applicant, at any time after filing the notice of appeal, did not intend to prosecute the appeal? …

2.         Has the applicant provided an explanation for the deficiency that prompted the Registrar to strike the appeal? If so, is the explanation consistent with an intention on the part of the applicant to advance the appeal?

3.         Has the applicant moved with sufficient expedition to cure the defect, taking into account the nature of the defect?

4.         Are there arguable grounds in support of an appeal? Is the likelihood of success high enough to conclude that it is not a frivolous appeal? …

5.         Will the restoration of the appeal cause the respondent any prejudice? If so, is it appropriate to require the respondent to endure this prejudice?

In this case, the Applicant had not filed an Affidavit stating that she had an intention to prosecute her Appeal and also did not explain why the Appeal Record was not filed on time. Further, the Court noted that Rule 14.20(1)(b) established that the Applicant only needed to submit existing transcripts and such transcripts had been provided to the Applicant two months before the deadline for filing the Appeal Record. While Rule 14.47 permitted this Application to be returnable within six months, it weighed against the Applicant that she, without good reason, waited a month before filing her Application to have the Appeal restored. Wakeling J.A. held that the Applicant’s Appeal was arguable and not frivolous, and that restoring the Appeal would not prejudice the Respondent, but these two findings were not sufficient to convince the Court to restore the Appeal.

The Court observed that compliance with the Rules was of critical importance and was mandatory. Based on all of these factors, the Application and the restoration of the Appeal was denied.

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