14.47: Application to restore an appeal

Case Summary

The Applicant applied under Rule 14.47 to restore her Appeal after it had been struck for failing to file the Appeal record in time and subsequently deemed abandoned. The Chambers Judge had granted the Respondents’ Summary Judgment Applications, dismissing the Applicant’s claims as being out of time and otherwise without merit. The Chambers Judge also declared the Applicant a vexatious litigant.

Justice Veldhuis noted that restoring an Appeal is a discretionary remedy with the relevant factors being: i) whether the Applicant demonstrated an intention to proceed with the Appeal in time; ii) whether the Applicant explained the defect or delay that caused the Appeal to be struck or abandoned; iii) whether the Applicant moved with reasonable promptness to cure the defect and have the Appeal restored; iv) whether the Appeal has arguable merit; and v) whether the Respondents have suffered any prejudice, including considering the length of the delay. Justice Veldhuis also noted that the threshold for restoration is higher for an Appeal that has been deemed abandoned, and that the Applicant bears the onus to furnish responsive evidence.

Justice Veldhuis accepted the Applicant’s explanation for the delay being that she had financial difficulty paying for the transcripts in time, and that she had demonstrated an intention to proceed with the Appeal. However, Veldhuis J.A. found that the other factors weighed heavily against restoring the Appeal, noting that the Applicant did not move with reasonable promptness, and that there was no merit to the Appeal of the Chambers Judge’s Orders. Justice Veldhuis also found that the Applicant had engaged in conduct exemplary of a vexatious litigant before the Court of Appeal, and that the “Appeal is the most recent installment of the Applicant’s ever-widening litigation odyssey”. Justice Veldhuis held that it was not in the interests of justice to continue the proceedings. The Application to restore the Appeal was dismissed.

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