The Applicant sought to restore an Appeal under Rule 14.47. The Appeal concerned the Applicant’s Application against the estate of his father to adduce new evidence regarding whether he qualified as a “dependant” under the (now repealed) Dependents Relief Act.

On May 14, 2024, the Appeal was deemed abandoned due to documentation not having been filed within the allotted time, which was after the date in which he applied to restore the Appeal. The Court noted that “the decision on an application to restore an appeal is discretionary. In determining whether it is in the interests of justice to restore the appeal, the Court must weigh all the relevant factors, set out in Li v Morgan, 2020 ABCA 186 at para 8”. This includes the (i) arguable merit of the Appeal; (ii) explanation for the delay that caused the Appeal to be struck or dismissed; (iii) explanation for the delay in applying to restore the Appeal; (iv) continuing intention to proceed with the Appeal; (v) prejudice to the Respondent; and (vi) interest of justice.

Although noting that “arguable merit” is a “low standard”, Fagan J.A. found that it did not appear that the proposed further evidence related to the sole question which was to be decided at Trial, being whether the applicant was a “dependant” at the relevant time.

In considering the explanations for the delays in filing and applying to restore the Appeal, the Court acknowledged his “numerous chronic medical conditions” but found this to be an insufficient reason to revive the Appeal. The Court drew minimal inferences regarding his continued intention to proceed with the Appeal.

In light of the circumstances of the Appeal not deeming to be abandoned until after the Applicant filed his Application to restore, any presumption of prejudice was weak. Finally, the Court concluded that restoring the Appeal would not serve the interests of justice, primarily due to the lack of arguable merit in the Appeal itself.