The Applicants applied for an Order restoring their Appeal. The Applicants filed a Notice of Appeal almost two months after the one-month Appeal deadline set out in Rule 14.8(2). The Applicants then applied for an Order extending the deadline, and the Court of Appeal Registry later struck the Applicants’ Appeal after the Applicants failed to file the Appeal record on time.

Wakeling J.A. stressed the importance of Appeal deadlines to move proceedings along at an acceptable rate. Justice Wakeling also noted that there is a secondary Appeal window to cover extraordinary cases, as Rule 14.37(c) allows a single Appeal Judge to extend the duration of the primary Appeal window for an unspecified period.

Wakeling J.A. then considered the Application to extend the time to appeal, noting that such Applications are assessed using the six-part test from Cairns v Cairns, [1931] 4 DLR 819, 826 (“Cairns”): (1) did the Applicant intend to appeal while the Applicant had the right of Appeal?; (2) has the Applicant explained the failure to file a Notice of Appeal before the deadline?; (3) if the Applicant has provided an explanation, does it constitute very special circumstances that excuses or justifies such failure?; (4) has the Applicant established that the delay has not caused the Respondent any prejudice, or the prejudice the Respondent has suffered is not of such a magnitude as to make it unjust to grant the extension?; (5) has the Applicant derived any benefit from the Judgment?; and (6) does the Appeal have a reasonable chance of success?

Wakeling J.A. held that the Applicants had met the first two elements of the Cairns test. The Respondent conceded that the Applicants demonstrated the necessary intention to Appeal. The Applicants also provided a reason for their delay. One of the Applicants swore in an Affidavit that he thought the Appeal period commenced when the Order was filed rather than when it was pronounced.

The Applicants failed the third and fourth elements of the Cairns test. Justice Wakeling determined that the Applicants’ explanation did not constitute very special circumstances. The Court noted that the fact the Applicants were self-represented did not assist them, as Rule 1.1(2) states that the Rules apply to self-represented litigants. The Court also determined that granting the extension would significantly prejudice the Respondent’s interests.

Wakeling J.A. found that the Applicant met the fifth element of the Cairns test. The Court did not find that the Applicant had derived a benefit from the Judgment. The Court noted that this will rarely occur and that it is difficult to imagine a set of facts that would create this situation.

Finally, Justice Wakeling found that the Applicant failed the sixth element of the Cairns test. The Court determined that the Applicants’ Appeal was hopeless. The Applicants claimed damages for the Respondent’s alleged breach of their Charter rights. Justice Wakeling determined that it was plain and obvious that damages would not be an appropriate and just remedy in the circumstances. Justice Wakeling also determined that the Respondent did not owe the Applicants a duty of care.

Since the Applicants only met three of six of the elements in the Cairns test, the Court determined that there were no valid reasons to exercise the Court’s discretion to extend the Appeal period. As a result, it was unnecessary to consider whether to restore the Applicants’ Appeal. Without the extension, the Applicants’ Notice of Appeal had no legal effect and there was thus no Appeal to restore.