SHENNER v TORNQVIST, 2023 ABCA 240
14.64: Failure to meet deadlines
14.65: Restoring appeals
This was an Application brought pursuant to Rule 14.65 to restore an Appeal for a second time. The Applicant failed to file his Factum by the relevant deadline, and the Appeal was struck pursuant to Rule 14.64. The Applicant made an Application to restore the Appeal, which was granted. However, the Applicant failed to file the Factum again. As the Appeal was not restored within three months of the date on which it was last struck, it was deemed abandoned pursuant to Rule 14.65(3)(b).
Considering the Application, the Court recited the considerations to be applied in determining an Application to restore an Appeal that had been deemed abandoned, namely (a) explanation for the delay that caused the Appeal to be struck; (b) reasonable promptness to cure the defect and restore the Appeal; (c) continuing intention to proceed with the Appeal; (d) prejudice to the Respondent, including the length of the delay; and (e) the arguable merit of the Appeal. The Court observed that the Applicant bears the onus of satisfying the Court that restoring the Appeal is in the interests of justice.
Applying the above considerations to the facts, the Court found that the Applicant had demonstrated his continuing intention to proceed with this Appeal. The Applicant’s failure to file the Factum by the relevant deadline could be attributed to the incompetence of counsel, and the Applicant should not be prejudiced as a result. To establish arguable merit, the Applicant need only show that the Appeal is not frivolous or hopeless. While noting that the Respondent suffered actual prejudice, the Court found that it was in the interests of justice to restore the Appeal for the second time.View CanLII Details