ROMAN v OMASTA, 2018 ABCA 121
4.10: Assistance by the Court
14.17: Filing the Appeal Record – fast track appeals
The Appellant, Ms. Roman, applied to restore her Appeal, which was struck for failure to file the Appeal Record within one month as required by Rule 14.17. Wakeling J.A., referring to recent appellate authority, noted that an Appeal may be restored if “it is in the interest of justice to do so”, and set out the criteria which a party must meet:
1. Is there any reason to conclude that the applicant, at any time after filing the notice of appeal, did not intend to prosecute the appeal? …
2. Has the applicant provided an explanation for the deficiency that prompted the Registrar to strike the appeal? If so, is the explanation consistent with an intention on the part of the applicant to advance the appeal?
3. Has the applicant moved with sufficient expedition to cure the defect, taking into account the nature of the defect?
4. Are there arguable grounds in support of an appeal? Is the likelihood of success high enough to conclude that it is not a frivolous appeal? …
5. Will restoration of the appeal cause the respondent any prejudice? If so, is it appropriate to require the respondent to endure this prejudice?
Justice Wakeling noted that the Appellant had not filed an Affidavit stating that her intention to Appeal never waivered. His Lordship stated that all Applicants who seek to have an Appeal restored should file such an Affidavit. Further, Wakeling J.A. observed that when the Appeal was struck the Appellant’s counsel did not move with sufficient expediency to cure the defect.
For these reasons, Wakeling J.A. declined to restore the Appeal and dismissed the Application. Justice Wakeling further advised that if the Appellant intended to commence a new Action, she should consider seeking the Court’s assistance pursuant to Rule 4.10.
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