The Applicant, Derek Lee Warren, sought an Order restoring his Fast-Track Appeal. The Applicant had failed to file a Factum within 20 days of filing his Notice of Appeal in accordance with Rule 14.24(1)(a)(I,) resulting in the Appeal being struck as directed by Rule 14.24(1).

Wakeling J.A. listed the Rules applicable to this Application without providing a detailed analysis of each of them, which are as follows: Rules 14.24(1), 14.27(3), 14.30(2), 14.37(1) and 14.65(2).

Wakeling J.A. stated the general rule is that an Appeal may be restored if it is in the interest of justice to do so. Wakeling J.A. then referred to the following factors that should be weighed in order to make this determination:

(a)    Is there a reason to conclude that the Applicant, at any time after filing the Notice of Appeal, did not intend to prosecute the Appeal?

(b)   Has the Applicant provided an explanation for the deficiency that prompted the Registrar to strike the Appeal? If so, is the explanation consistent with an intention on the part of the Appellant to advance the Appeal?

(c)    Has the Applicant moved with sufficient expedition to cure the defect, taking into account the nature of the defect?

(d)   Are there arguable grounds in support of an Appeal? Is the likelihood of success high enough to conclude that it is not a frivolous Appeal?

(e)   Will the restoration of the Appeal cause the Respondent any prejudice? If so, is it appropriate to require the Respondent to endure this prejudice?

Wakeling J.A. then applied these factors to the facts of the case. The Applicant’s intention to appeal was constant and an explanation for the failure to file was provided. The Applicant’s lawyer left for vacation without regard for the filing deadlines. However, the Applicant’s response to the struck Appeal was unacceptably dilatory. The Applicant waited two weeks to file a remedial Application which was rejected as non-compliant with the Rules. It was three weeks before a compliant Application was filed. The Court stated that a Registrar’s striking certificate connotes an emergency that should be dealt with immediately and that didn’t happen in this case.

Wakeling J.A. ruled that the Appeal was not frivolous; however, Wakeling J.A. also ruled that the Applicant’s non-compliant conduct prejudiced the Respondent. Wakeling J.A. described the prejudice as “nonlitigation prejudice” as an Order restoring the Appeal would deprive the Respondent of her legitimate expectation that the Applicant prosecute his Appeal within the mandated timelines. As Rule 1.2 states, the purpose of the Rules to provide timely and cost-effective means of resolving disputes.

Wakeling J.A. closed by stating that, even if the Applicant had met all five elements of the test for restoring an Appeal, the Court would have still declined to exercise its discretion to restore the Appeal. The Applicant had not discharged his obligation of payment under the Order being appealed. Therefore, the Court did not see fit to exercise its discretion to forgive the Applicant’s non-compliance with filing deadlines when he is also failing to comply with a Court Order. The Application to restore the Appeal was denied.