The Appellant, Rochelle Pace (“Ms. Pace”), sought to restore an Appeal that was struck by the Registrar for failure to comply with the deadlines for a Fast Track Appeal pursuant to Rules 14.17(1) and 14.64. Ms. Pace had commenced an Action in August of 2014 against the driver of an ATV on which she was a passenger for injuries she sustained as a result of an accident when the ATV struck a tree (the “Underlying Action”). The Respondent insurer, who was added as a Third Party to the Action, applied to amend the driver’s Amended Statement of Defence to particularize the causation issue and to plead additional defences (the “Underlying Application”). The Underlying Application was granted by a Chambers Judge and appealed by Ms. Pace.

Ms. Pace had indicated on her Notice of Appeal that the Appeal was not required to be dealt with as a Fast Track Appeal. By a letter dated the same day the Appeal was filed, the Court’s Case Management Officer advised the parties that the Appeal was a Fast Track Appeal pursuant to Rule 14.14. Ms. Pace failed to meet the deadlines of a Fast Track Appeal under Rule 14.17 and accordingly, the Appeal was struck.

Strekaf J.A. found that an Appeal that has been struck may be restored pursuant to Rule 14.65(1). Her Ladyship reviewed the relevant jurisprudence noting that the test to restore an Appeal is well-settled and based on five factors: (1) arguable merit; (2) explanation for the defect or delay that caused the Appeal to be taken off the list; (3) reasonable promptness in moving to cure the defect and have the Appeal restored; (4) timely intention to proceed with the Appeal; and (5) potential prejudice to the Respondents (including the length of the delay).

Justice Strekaf emphasized that no single factor is determinative. Weighing these factors, Justice Strekaf concluded that it was in the interests of justice to restore the Appeal; however Her Ladyship awarded no Costs to either party, determining that, while Ms. Pace was successful, the Application was occasioned by Ms. Pace’s failure to comply with the deadlines in Rule 14.17.