The Applicant, McCormack, sought permission to appeal a prior Decision of Shaner J.A. dismissing his Applications to restore an appeal and to extend the time for filing it.

McCormack had filed a Notice of Appeal from a Decision of the Court of King’s Bench outside the prescribed time and was instructed to promptly apply to extend the time for filing in order to prevent the appeal from being struck. However, McCormack failed to do so, missed the deadline, and the appeal was struck. Over two months later, McCormack applied to restore the appeal and extend the time for filing. Appeal Justice Shaner denied the Application, citing McCormack’s failure to provide a valid explanation for the delay and the absence of any arguable merit in the appeal. McCormack subsequently applied for permission to appeal that Decision.

Shaner J.A. clarified that, pursuant to Rules 14.5(1)(a) and 14.5(2), McCormack was required to obtain permission to appeal. Shaner J.A. noted that such permission is granted only in rare circumstances, where there is a question of general importance, an error of law, an unreasonable exercise of discretion, or a misapprehension of significant facts.

McCormack argued that Shaner J.A. had misapplied the factors set out in Cairns v Cairns, particularly regarding whether the delay was justified and whether the Appeal had merit. McCormack contended that his Application was timely but was rejected due to technical issues, and that Shaner J.A. misunderstood those facts when denying the Application. Shaner J.A. rejected this argument, confirming that the Application had not been filed in time and reiterating that no arguable merit had been demonstrated. Additionally, Shaner J.A. noted that most of McCormack’s submissions were a repetition of arguments previously considered and rejected.

Ultimately, Shaner J.A. concluded that McCormack had not raised any legal error, issue of general importance, or compelling reason for further review. As a result, the Application for permission to appeal was dismissed.