BANK OF MONTREAL v DIAO

This Application was sought to restore an Appeal that was struck for failing to file an Appeal record within the time required under the Alberta Rules of Court.

In deciding whether to restore the Appeal, Justice Hawkes confirmed that the decision to restore an appeal is a discretionary one, which involves five factors: arguable merit, explanation for the delay, promptness in curing the defect, intention to proceed, and prejudice to the Respondent.

The Court noted that while the Applicant acted promptly, demonstrated an intention to proceed, and caused no prejudice, their explanation for the delay was insufficient, and the Appeal lacked arguable merit.

The Applicant's misunderstanding of the filing deadline was not credible given the extensive correspondence from the Respondent advising him of the deadlines.

Further, the Court was not persuaded that the grounds of appeal advanced had any chance of success because the Applicant's request for a "reasonableness" review of Costs, pursuant to Rule 10.9, was premature. The Costs in question were still subject to assessment and Appeal in the Court of King's Bench, and any appeal to the Court of Appeal would require permission under rule 14.5(1)(e).

Lastly, the Court stated that restoring the Appeal was not in the interests of justice.