NKUSI v PATRICIA C TIFFEN PROFESSIONAL CORPORATION, 2023 ABCA 272
14.47: Application to restore an appeal
14.65: Restoring appeals
The Court dismissed the Appellant’s Application to restore an Appeal under Rules 14.47 and 14.65 (the “Restoration Application”). The Appeal was deemed abandoned due to non-compliance with the Rules and practices of the Court.
Watson J. held that the Restoration Application gave rise to consideration of the factors set out in Li v Morgan, 2020 ABCA 186 (“Li”). Namely: (i) an explanation for the delay that caused the Appeal to be struck in the first place; (ii) an explanation for the delay in applying to restore the Appeal; (iii) continuing intention to proceed with the Appeal; (iv) lack of prejudice to the Respondent; and (v) the arguable merit of the Appeal. Watson J. further held that no one factor is determinative; all factors are weighed to determine whether an Appeal should be restored.
Watson J. cited Mylonas v Kadman, 2019 ABCA 39 and Rana v Rana, 2018 ABCA 347 for the proposition that the test for restoring an Appeal involves similar considerations of whether the Appeal has been struck or deemed abandoned. However, in the case of an Appeal deemed abandoned, the threshold for restoration is heightened.
Watson J. commented that it is not for a party to unilaterally decide what time limitations or Rules are appropriate to that party’s case. Ultimately, the Court must be satisfied that restoring the Appeal is in the interests of justice and not unfairly prejudicial to any opposing parties.
It was found that, having regard to the factors in Li and other cases, the materials filed for the Appellant fell short of substantiating the restoration of the Appeal. Watson J. further found that the Appellant provided no explanation for the delay that caused the Appeal to be struck.
Watson J. noted that the Appellant had failed to order and file proof of ordering the Transcript of the Decision to strike the Appeal within the timelines mandated for fast tracked Appeals, or to file an Appeal Record when due. Further, the Appellant did not file an Affidavit in support of the Restoration Application, nor did he append his late Appeal Record to his filed materials, which also raised doubts about whether the Appellant had a continuing intention to prosecute the Appeal.
Watson J. further held that there was no merit to the Appeal and that lack of merit alone may be grounds to deny a restoration Application.View CanLII Details