EARL v PETER, 2026 ABCA 234

The Applicant sought to restore their Appeal pursuant to Rules 14.47 and 14.65. The Appeal had been struck due to the Applicant’s failure to file an Appeal Record within the timelines prescribed by the Rules. The Applicant had commenced the Appeal following a Trial decision related to various family law issues where the Applicant was found to be wholly unsuccessful.

On March 20, 2026, the Applicant filed the Notice of Appeal. The following day, the Applicant was advised by the Registry that a Commencement Letter for the Appeal was uploaded to the Court of Appeal Management System, that this document set out important information related to deadlines for the Appeal, and that it was the Applicant’s responsibility to create an account to retrieve the document. The Applicant did not create an account with the Court of Appeal Management System until April 22, 2026, and only after they were advised that the Appeal had been struck for failure to file an Appeal Record. The Applicant was advised that they would be required to apply to restore the Appeal in order to have it heard by the Court.

The Court reviewed the test for restoring an appeal set out in Rules 14.47 and 14.65 and noted several pertinent factors, including the arguable merit of the appeal, an explanation for the delay, promptness of the applicant, and prejudice to the respondent. Appeal Justice Feehan noted that the threshold for demonstrating the merit of the Appeal was low, and that based on the evidence before the Court it was not possible to determine whether the Appeal was bound to fail. As such, there was arguable merit to the Appeal.

With respect to an explanation for the Applicant’s delay, the Court noted that there was no reasonable excuse. Although the Applicant did not have an account to permit access the Commencement Letter, they were advised that they were required to make such an account and ought to have known that an account was necessary. That said, the Court noted that the Applicant acted promptly to restore the Appeal and applied shortly after being advised that the Appeal had been struck.

Finally, and with respect to potential prejudice, the Court held that the Respondent would not suffer any undue prejudice from the restoration of the Appeal, as the status quo resulting from the Trial Judge’s decision would stand pending the outcome of the Appeal itself.

In considering the facts in their totality, Feehan J.A. held that no single factor was determinative. While there was no excuse for the delay, there was merit to the Appeal and the Applicant acted promptly to address the situation. As such, it was in the interests of justice to restore the Appeal.