WOLK v WOLK, 2023 ABCA 66


14.47: Application to restore an appeal
14.65: Restoring appeals
14.88: Cost awards

Case Summary

This was an Application brought pursuant to Rule 14.47 to restore an Appeal of an Order approving the sale of the Applicant’s and Respondent’s former matrimonial home, among other related relief.

Upon the Order being granted, the Applicant appealed the Order and sought a Stay of the Order pending Appeal. The Stay Application was denied, and the home was sold. The Appeal was later struck and deemed abandoned as a result of the Applicant’s failure to file an Appeal Record or Factum within the required time.

Considering the Application, the Court recited the considerations to be applied in determining an Application to restore an Appeal, namely (a) arguable merit to the Appeal; (b) explanation for the defect or delay which caused the Appeal to be taken off the list; (c) reasonable promptness in moving to cure the defect and have the Appeal restored to the list; (d) intention in time to proceed with the Appeal; and (e) lack of prejudice to the Respondents (including length of delay). The Court observed that, above all, the Court must consider whether it is in the interests of justice to restore the Appeal and allow the matter to proceed.

Applying the recited considerations to the facts, the Court held that the Appeal lacked arguable merit, since the Appeal’s main objective - reversal of the Order directing sale of the former matrimonial home - had been rendered moot by the home’s previous sale and, in any event, none of the Applicant’s proposed arguments supported a reversal of the Order. Further, the Court noted that the Applicant had failed to demonstrate an unwavering intention to pursue the Appeal, having allowed the Appeal to be struck and later deemed abandoned, pursuant to Rule 14.65(3), despite having been expressly informed of the consequences. The Court observed that the Application had not included the documents he previously failed to file, calling into question the Applicant’s readiness to file the necessary materials upon the Appeal being restored. The remaining considerations were not explicitly addressed.

In the circumstances, the Court held that it would be contrary to the interests of justice to restore the Appeal. The Application was dismissed. The Court also held that the Respondent was by default entitled to Costs pursuant to Rule 14.88.

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