MYLONAS v KADMAN, 2019 ABCA 39
14.16: Filing the Appeal Record – standard appeals
14.47: Application to restore an appeal
14.65: Restoring appeals
The Applicants applied to restore an Appeal pursuant to Rule 14.47. The Appeal had been struck after the Applicants failed to file their Appeal Record in time, pursuant to Rule 14.16; and was then deemed abandoned pursuant to Rule 14.65(3), as an Application to restore the Appeal was not filed, served, and granted within three months of the Appeal being struck.
Veldhuis J.A. first noted that whether an Appeal has been struck or abandoned, the test for restoring an Appeal requires a consideration of the same factors: (1) whether the Applicant intended to proceed with the Appeal in time; (2) the Applicant’s explanation for the defect or delay; (3) whether the Applicant “moved with reasonable promptness” to cure the defect and restore the Appeal; (4) whether the Appeal has arguable merit; and (5) whether the Respondents have suffered prejudice, including due to the length of the delay. Ultimately, the decision is a discretionary one where “no one factor is determinative”, and the Court should consider whether all factors together support restoring the Appeal in the interest of justice. However, once an Appeal has not only been struck but also abandoned, the threshold for its restoration is higher.
While Veldhuis J.A. accepted that the Applicants intended to proceed with their Appeal, Her Ladyship held that the other factors did not support its restoration. The Applicants’ materials did not refer to a specific error made by the Justice below, their explanation for why they had failed to file their materials in time was not satisfactory, and it was not evident that they had moved with reasonable promptness to cure the defect. Additionally, the overall length of the delay led Her Ladyship “to infer that the [R]espondents have suffered prejudice as a result.” As such, the Application to restore the Appeal was dismissed.View CanLII Details