WASS v WASS, 2020 ABCA 180


13.4: Counting months and years
14.17: Filing the Appeal Record – fast track appeals
14.47: Application to restore an appeal
14.65: Restoring appeals

Case Summary

The Applicant sought an Order restoring her Appeal under Rule 14.65(1). On January 3, 2020 the Registrar struck the Applicant’s Appeal because she had failed to file the Appeal Record within one month of filing her Notice of Appeal as required for fast-track Appeals under Rule 14.17(b).

Rule 13.4(1) sets out the process for calculating time. The Court clarified that, when counting from a date in months, the time is calculated from the date on which the activity occurs in the month to the same-numbered date in a subsequent month.

Rule 14.47 requires that an Application to restore a struck fast-track Appeal must be filed, served, and made returnable within three months after having been struck. Here, the day required by Rule 14.47 was April 3, 2020. The Applicant filed her Application on April 6, 2020, with a return date of April 23, 2020. The Court determined that the Applicant had failed to meet the required timeline and deemed the Appeal abandoned, pursuant to Rule 14.65(3).

The factors governing the restoration of an Appeal that has been deemed abandoned pursuant to Rule 14.65(3) are whether: (1) the Applicant demonstrated an unwavering intention to prosecute her Appeal; (2) the Applicant provided a sufficient explanation for the defect or delay; (3) the Applicant moved with reasonable promptness to cure the defect; (4) the Appeal has arguable merit; and (5) the restoration of the Appeal will prejudice the Respondent to an unacceptable degree. The Court found that the Applicant had failed to meet any of the five criteria and that it was not in the interests of justice to restore the Appeal.

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