The Case Management Judge declined to summarily dismiss all of the third party claims against Real Estate Strategies Group Inc. (“RESG”), and RESG appealed. The Appeal was deemed to be abandoned under Rule 14.65(3), since more than three months had passed since the Appeal was struck and no Application to restore had been filed. RESG then applied to restore the Appeal and for an extension of time to Appeal.

O’Ferrall J.A. noted that the remedies sought by RESG were discretionary. The Court must consider: the merits of the Appeal; whether the Applicant has demonstrated an unwavering intention to prosecute the Appeal; whether there is an explanation which fairly justifies or excuse the delay; and, whether the Respondent is unduly prejudiced by the delay.

When RESG first filed a Notice of Appeal, it was advised immediately that the Appeal was filed out of time, pursuant to the time period specified in Rule 14.8, and an extension would be required. However, no steps were taken at that time to seek the extension. After filing the Appeal record, the Appeal was struck for not filing the Factum in time. It was subsequently deemed abandoned as RESG failed to file an Application to restore the Appeal. RESG did not in fact apply to restore the Appeal for approximately six months. Justice O’Ferrall held the delay to be unreasonable considering that the Appeal was a Fast Track Appeal. His Lordship also noted that restoring the Appeal could interfere with the parties’ preparation for the upcoming Trial, as it could not properly be heard and decided before the Trial. Finally, O’Ferrall J.A. was not persuaded as to the merits of the Appeal. Both Applications by RESG were dismissed.