The Plaintiff, a builder, appealed a decision that denied the Stay of an Order releasing certain Court funds to the Defendant. However, the Plaintiff failed to prosecute the Appeal in a timely manner and the Appeal was struck and deemed abandoned. The Plaintiff applied to restore the Appeal, but Feehan J.A. dismissed the Application.

Feehan J.A. noted that the relevant Rules to restore an Appeal are Rules 14.47 and 14.65.

Under Rule 14.47, an Application to restore an Appeal must be filed and returned within 3 months after being struck or deemed abandoned (if the Appeal is a fast-track Appeal), or within 6 months (if the Appeal is standard). Rule 14.65(3) makes it clear that an Appeal is deemed to have been abandoned if no Application to restore the Appeal has been filed, served, and granted within 3 months for a fast-track Appeal or within 6 months for a standard Appeal.

On multiple occasions, the Plaintiff was advised by the Case Management Officer that its Appeal was a Fast Track Appeal and that the filing deadlines for Fast Track Appeals applied. The Plaintiff was referred to the relevant Rules pertaining to Fast Track Appeals, including Rule 14.24(1)(a), which prescribes that an Appellant must file its Factum before the earlier of 20 days after filing the Appeal Record, or no later than 2 months after the Notice of Appeal is filed, otherwise the Appeal is struck by the Registrar. Pursuant to Rule 14.64(a), an Appeal must be struck if the Appellant fails to file the Appeal Record or its Factum.

The deadline for the Plaintiff to have the Application to restore filed, heard, and determined was June 22, 2023. That deadline was not met. Instead, on June 21, 2023, the Plaintiff advised the Case Management Officer that it was busy searching for a new office and unable to file Court documents. Accordingly, the Appeal was struck pursuant to Rule 14.65(3).

The test for restoring an Appeal is discretionary and involves the following considerations: (a) an arguable merit to the Appeal; (b) an explanation for the delay which caused the Appeal to be taken off the list; (c) reasonable promptness in moving to restore the Appeal; (d) timely intention to proceed with the Appeal; and (e) lack of prejudice to the Respondents.

Appeal Justice Feehan explained that none of the five factors is determinative and failure to meet one of them is not fatal. Ultimately, the factors are weighed to determine whether it is in the interests of justice to permit the Appeal. There may be cases where even if all factors are met, it may not be in the interests of justice to permit the Appeal.

Relying on recent Court of Appeal authorities, Feehan J.A. stated that there needs to be “exceptional circumstances over which the appellant had no control [which] made it impossible for the appellant to prosecute the appeal”, which is “a very onerous obligation that will seldom be discharged”, especially when prejudice to the Respondent can be presumed.

Appeal Justice Feehan found that there was no reasonable explanation for the Plaintiff’s delay which caused the Appeal to be struck or abandoned. Further, there was no merit to the Appeal, which sought to overturn a procedural decision entitled to deference. Ultimately, the Plaintiff failed to meet the requisite criteria and establish that it was in the interests of justice to restore the Appeal.

Rule 9.4(2)(c) was invoked to allow the Court Clerk to sign the Order without the parties’ approval of the form of Order.