ABBASI v KHAN

This decision arose from an Application to restore an Appeal, pursuant to Rules 14.47 and 14.65, after the Appeal had been struck for failure to file an Appeal record within the timelines required by Rule 14.16(3)(b). The underlying Appeal concerned family law issues arising from a Summary Trial, including child support, spousal support, and division of family property. The Applicant sought restoration of the Appeal after retaining new counsel shortly following the issuance of the struck certificate.

Feehan J.A. reviewed the applicable framework governing restorations of Appeals, and confirmed that the test under Rules 14.47 and 14.65 is discretionary and engages five non determinative factors: arguable merit to the appeal, explanation for the delay or defect, reasonable promptness in curing the defect, intention to proceed with the Appeal, and prejudice to the Respondent. The Court emphasized that these factors must be weighed holistically to determine whether restoration is in the interests of justice, and that failure to satisfy one factor is not necessarily fatal.

In applying the test, Feehan J.A. confirmed that the threshold for arguable merit is low and requires only that the Appeal not be hopeless, frivolous, or bound to fail. The Court found that the proposed grounds of appeal met that standard. Although the Court concluded there was not an adequate explanation for part of the delay following the striking of the Appeal, it found the Applicant had acted with reasonable promptness after retaining counsel and had consistently demonstrated an intention to pursue the Appeal, including by filing the Notice of Appeal on time, ordering transcripts, and seeking extensions before the Appeal was struck. Justice Feehan also held that the prejudice to the Respondent consisted primarily of delay and was not sufficiently serious to outweigh the remaining factors.

Balancing all of the circumstances, the Court concluded that it was in the interests of justice to restore the Appeal to the record pursuant to Rules 14.47 and 14.65. The Court granted the Application and imposed a strict deadline for filing the outstanding transcript and Appeal record materials, failing which the Appeal would again be struck.