ABDI v ASKI CONSTRUCTION LIMITED

The Applicants’ Appeal was struck by the Registrar, pursuant to Rule 14.64(b) because they failed to file their Factum within the time required by Rule 14.23(1). They then applied to restore the Appeal pursuant to Rule 14.65. The Applicants argued that they did not understand that the deadline was two months after the Appeal Record was filed, but thought that the Factum was due six months after the Notice of Appeal was filed. Here, the Appeal was filed in a timely fashion, but the subsequent step of filing the Factum was inadvertently missed.

Justice Schutz noted that the Court of Appeal retained the discretion to extend time periods provided by the Rules of Court. Upon the Applicants realizing their error, they had moved promptly to restore their Appeal. Schutz J.A observed that the Appeal was not categorically hopeless or frivolous; the Applicants’ language barriers necessitated some procedural fairness; that it was interests of justice to allow the Appeal to proceed; and, there was no resulting prejudice to the Respondents. Schutz J.A. directed that the Appeal be restored.