Wakeling JA

14.48: Stay pending appeal
14.5: Appeals only with permission
14.65: Restoring appeals

Case Summary

The Applicant/Appellant applied to restore an Appeal which was struck on July 23, 2018 for failure to file the Appeal record, and was deemed abandoned on January 24, 2019. The Appeal was of an Order of a Justice of the Court of Queen’s Bench, hearing an Appeal of a Residential Tenancy Dispute Officer’s Order.

Justice Wakeling noted that the test to restore an Appeal under Rule 14.65 requires answering 5 questions: 1) whether the Applicant demonstrated an unwavering intention to prosecute the Appeal between the date the last step in the Appeal was taken and the date it was struck; 2) whether there is an explanation for the failure to meet the Appeal timelines; 3) whether the Applicant moved quickly to cure the defect; 4) whether the Appeal has any prospects of success or is frivolous or hopeless; and 5) whether the restoration of the Appeal will cause the Respondent an unacceptable degree of prejudice. Justice Wakeling noted that the obligation on the Applicant to restore an Appeal deemed abandoned is onerous and “will seldom be discharged”.

Justice Wakeling found that the Applicant did not meet any of the tests required, as no evidence was put forward to demonstrate an unwavering intention to prosecute the Appeal, nor to provide extenuating circumstances as to why the timelines were not met. Further, Justice Wakeling held that the Appeal was hopeless as it was barred by the Residential Tenancy Dispute Resolution Service Regulation, AR 98/2006 which states that a “decision of the Court of Queen’s Bench is final and cannot be further appealed”. Wakeling J.A. also noted that the Appeal concerned an amount less than $25,000, and thus required leave to appeal pursuant to Rule 14.5, which had not been granted. Justice Wakeling also found that the Respondents had complied with the initial Order and were entitled to assume the dispute was over.

The Applicant had also sought a Stay pending the Appeal under Rule 14.48, however, Justice Wakeling noted that there was no Appeal (as it had been deemed abandoned), and that the Order sought to be stayed did not require anyone to do or refrain from doing anything, and thus, there was nothing to Stay.

The Application was dismissed.

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