BASNETT v JACK (BASNETT)

This was a decision on an Application to restore an Appeal under Rules 14.47 and 14.65. The Appeal was struck pursuant to Rule 14.64 when the Appellant’s counsel attempted to file the Appeal Record on the last day, but it was rejected and the deadline was missed.

The Court reviewed its authority to order that an appeal be restored under Rule 14.65 and the requirements to restore an appeal under Rule 14.47.

Referencing the case law, Feehan J.A. cited the applicable factors for consideration: (a) arguable merit to the appeal; (b) an explanation for the defect or delay which caused the appeal to be taken off the list; (c) reasonable promptness in moving to cure the defect and have the appeal restored to the list; (d) intention in time to proceed with the appeal; and (e) lack of prejudice to the Respondents, including the length of delay. The Court reiterated that the factors are non-determinative and the test is discretionary.

The Court restored the Appeal. Under factor (b), although the last-minute filing was a “critical error” by counsel, it acknowledged this constituted an “explanation for the…delay” sufficient to meet the test. Under factor (c), Justice Feehan found the Applicant moved promptly to cure the defect. Though it took 10 days after the rejection to file the Application, the Court found this was reasonable, especially given the intervening long weekend. Under factor (e), the short delay posed no significant prejudice to the Respondents.