Veldhuis JJA

13.32: Fees and allowances
14.16: Filing the Appeal Record – standard appeals
14.47: Application to restore an appeal

Case Summary

The Applicant sought to restore an Appeal that had been struck, and to extend the six-month time limit to restore the Appeal. The Applicant had originally filed his Notice of Appeal on June 20, 2017. Pursuant to Rule 14.16, he was then required to file his Appeal record by October 20, 2017. When he did not acquire transcripts by that date, the Applicant applied to the Court of Appeal to suspend the deadline. That Application was denied, and the Applicant’s Appeal was later struck for failure to file an Appeal record.

The Applicant later applied to restore the Appeal, but did not do so in compliance with Rule 14.47, which requires that an Appeal be filed, served, and returnable within six months of the Appeal being struck. While the Applicant had filed his Application to restore the Appeal in time, it was not scheduled to be heard until more than six months had passed from the time that his Appeal was struck, and the Appeal was therefore deemed abandoned. The Applicant then applied to extend the six-month time period to restore the Appeal.

Veldhuis J.A. explained that the considerations for restoring an abandoned Appeal, and for extending the time period to apply to restore an abandoned Appeal are similar, and include: (a) whether the applicant intended to proceed with the appeal in time; (b) the applicant’s explanation for the defect or delay; (c) whether the applicant moved with “reasonable promptness” to remedy the defect and restore the appeal; (d) whether there was arguable merit to the appeal; and (e) whether the respondents suffered prejudice. Her Ladyship further explained that the factors should be addressed together as a whole, in order “to determine whether it would be in the interest of justice to restore the appeal”. The decision is discretionary, and no one factor is determinative. However, if an appeal has been deemed to be abandoned, the threshold to restore the appeal or grant an extension is higher.

Veldhuis J.A. noted that the Applicant had not acted with reasonable promptness to cure the defect that caused his Appeal to be struck (and in fact still had not obtained the required transcripts), and that the Applicant’s explanation for the delay was “insufficient and not borne out by the materials he presented”.  The Applicant had argued that he should not have to pay for transcript services because he had a fee waiver in place, but Veldhuis J.A. noted that pursuant to Rule 13.32, fees are waived in accordance with the guidelines set out in Ministerial Order 18/2015 which does not apply to transcript fees. Most importantly, Her Ladyship determined that the Applicant had not demonstrated that his Appeal showed any arguable merit. As such, it was not in the interest of justice to restore the Appeal. The Applications were dismissed.

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