The Applicant applied for permission to Appeal a Decision of the Court which denied the Applicant’s second Application to restore his Appeal after it was struck for failing to file the Appeal Record by a date set by the Court (the “Second Restoration Application”). The Applicant filed an Appeal of a Trial Decision which was struck for failing to file the Appeal Record by the deadline set out in Rule 14.16(3). The Applicant’s first Application to restore the Appeal was allowed but the Applicant was directed to file his Appeal Record by a specified date, which the Applicant failed to meet, and the Appeal was struck for a second time.

The Applicant applied pursuant to Rule 14.5(1)(a) and Rule 14.5(2) for permission to Appeal the Second Restoration Application. The Court noted that: (1) its role under Rule 14.5(1)(a) is that of a gatekeeper; (2) permission to Appeal a Decision of single Judge of the Court of Appeal is to be granted rarely; and (3) an Applicant must show a compelling reason to require the Applicant and Respondent to reargue the issue, and for three Judges of the Court of Appeal to decide the issue.

The Court further noted that an Application for permission to Appeal is not a rehearing of the Applicant’s Second Restoration Application, but rather an Applicant must demonstrate a reviewable and material issue of law worthy of review by a full panel of the Court which on the facts was required to arise from the Order of the Court denying the Second Restoration Application and not the original Trial Decision.

The Court noted jurisprudence which set that pursuant to Rule 14.5(2), the Applicant must establish that the Order of the single Judge being reviewed: (1) raises a question of general importance which on its own deserves panel review; (2) rests on a reviewable and material issue of law worthy of panel review; (3) involves an unreasonable exercise of discretion which had a meaningful effect on the outcome of the decision and the outcome is worthy of panel review; or (d) rests on a palpable and overriding error of important facts affecting the Order made and the order is worthy of panel review (together the “Permission to Appeal Factors”). The Court additionally noted that other factors that may be considered include: whether there are conflicting decisions on the point; the standard of review that would be applied on the Appeal; and whether there are other good reasons why a full panel of the Court should review the Order under Appeal.

The Court determined that the Applicant’s submission failed to demonstrate that the interests of justice would be served by allowing a further level of review, noting that the Applicant provided an inadequate explanation for the delay in the matter and his stated desire to Appeal the Trial decision alone, did not serve to meet the significant burden on him to establish that the Court’s decision warranted a panel review. The Court also noted that the Applicant had failed to establish any of the Permission to Appeal Factors. The Court accordingly denied the Application and awarded the Respondent Costs pursuant to Rule 14.88.