SCHEFFELMAIER v SCHEFFELMAIER

This was an Application to restore a fast-track Appeal pursuant to Rule 14.47 and for permission to adduce fresh evidence at the hearing of the Appeal. The Appeal had been struck after the Applicant missed the deadline to file and serve her factum pursuant to Rule 14.24(1)(a). The Court confirmed that counsel for the Applicant was mistaken in his understanding that the filing of an amended Appeal Record resets the 20-day deadline in Rule 14.24(1)(a).

Feth J.A. applied the five-factor test for restoring an appeal under Rule 14.47: (a) arguable merit of the appeal; (b) the reason for the delay or defect that caused the appeal to be struck; (c) reasonable promptness in trying to cure the defect and restore the appeal; (d) the applicant's continuing intention to pursue the appeal; and (e) prejudice to the respondent. Citing the applicable authorities, the Court stated that none of the factors is determinative and the overarching question is whether restoring the Appeal is in the interests of justice. 

The Court found the test was met. The Appeal raised arguable issues. Counsel's mistaken understanding of the deadline for the factum was a "mere slip or inadvertence" that did not weigh significantly against the Application. The Applicant acted with reasonable promptness in bringing the Application to restore the Appeal. While it took 45 days to bring the Application, the Court found this was not unreasonable when viewed in context. Prejudice to the Respondent was minimal.

Appeal Justice Feth concluded that restoring the Appeal was also in the overall interests of justice. The Court rejected the Respondent's argument that the overall delay in prosecuting the Appeal and several procedural irregularities warranted dismissal of the Application.

The Court ordered the Appeal restored.

With respect to fresh evidence, the Court confirmed that such Applications were generally heard by a Panel under Rule 14.38(2). However, Feth J.A. acknowledged the long-standing practice of adjourning such Applications to be heard by the Panel hearing the merits of the Appeal. Since the Application to adduce fresh evidence involved consideration of the merits of the Appeal, it was efficient to hear both together.

The Court held that under Rule 14.90(a)(ii), the Applicant was not entitled to costs since her Affidavit and Memorandum were noncompliant. Further, her overall litigation conduct raised concerns. Instead, the Court ordered that the Respondent should have costs of the Application at $1,750.