14.47: Application to restore an appeal
14.5: Appeals only with permission
14.65: Restoring appeals

Case Summary

The Applicant, Blicharz, sought leave to Appeal a prior Decision which denied her Application to set aside a Default Judgment. The Applicant’s filing of a Notice of Appeal was out of time by four months, and her Appeal was eventually struck for failure to file the Appeal Record in a timely fashion. She then brought an Application to restore the Appeal or extend the deadline to file the Appeal Record. That Application was dismissed due to significant delay and a lack of arguable merit of the Appeal.

Justice Rowbotham stated that an Appeal of the dismissal required leave pursuant to Rule 14.5. Her Ladyship noted that the test for leave to Appeal is that permission can be granted if the Applicant establishes that there is: a question of general importance; a possible error of law; an unreasonable exercise of discretion; or a misapprehension of important facts.

Rowbotham J.A. found that there was no question of general importance, no error of law, and no unreasonable exercise of discretion, emphasizing the Applicant’s delinquency in following procedural Rules. The Applicant contended that she did not receive legal advice at the time she entered into the agreements which were the subject of the original litigation, and the failure to consider this constituted a misapprehension of important facts. Rowbotham J.A. held that the Applicant had had legal advice both during the present Appeal and in the Court below. Rowbotham J.A. also reiterated that the test for restoration under Rule 14.47 and the test for extension of time to file an Appeal both require consideration of the factors of delay and arguable merit of the Appeal. The Application for leave was accordingly denied.

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