CUBBON BUILDING CENTRE LTD v VRBANEK

The Applicants applied to restore their Appeal, which had been struck for failing to file their factum within the prescribed timeframe for fast‑track appeals under Rule 14.24(1)(a).

Fagnan J.A. confirmed the Court has discretion to restore an appeal on application pursuant to Rule 14.65. The Court must consider whether: (1) there is arguable merit to the appeal, (2) an explanation for the defect or delay, (3) reasonable promptness to curing the defect and have the appeal restored, (4) a timely intention to proceed with the appeal, and (5) lack of prejudice to the respondents. The Court noted that none of these factors are determinative and the Court must ask whether issuing a restoration Order is in the interests of justice.

Fagnan J.A. found that the Applicants met the requirements for restoration of the Appeal.  The Applicants had filed all other Appeal materials within the required timelines and demonstrated an intention to proceed. Their reason for not filing the factum in time was because of an inadvertent mistake in thinking that the standard-appeal deadlines applied; however, the Court noted that counsel’s mere slip or inadvertence does not generally prevent restoration. Additionally, the Applicants took prompt action to restore the Appeal, even attaching their proposed factum to the Application.

The Court rejected the Respondent’s argument that the Appeal had no arguable merit, finding that the Appeal met the applicable low threshold. Fagnan J.A. noted that the Respondents took no position regarding prejudice and emphasized that the Respondents had not suffered any prejudice because they had not been required to take any additional steps. Further, the Applicants’ writ of enforcement and certificates of lis pendens had already been discharged.

Appeal Justice Fagnan directed that the proposed factum be filed within two days of the decision and that all other deadlines for the Appeal would be determined by the Rules and directions from the Case Management Officer. The Application was granted.