XU v MA, 2023 ABCA 352


14.47: Application to restore an appeal

Case Summary

The Applicant applied pursuant to Rule 14.47 to restore its Appeal after it had been struck due to the Applicant’s failure to file their Appeal Record within the required deadline.

Justice Feth listed the relevant factors that the Court will consider when determining whether to restore an abandoned Appeal: (i) whether an explanation exists for the defect or delay that caused the Appeal to be struck; (ii) whether the Applicant moved with reasonable promptness in curing the defect or delay and in having the Appeal restored; (iii) whether the Applicant intended to proceed with the Appeal; (iv) whether the Respondent will suffer prejudice (including consideration of the length of the delay); and (iv) whether the Appeal has arguable merit.

Justice Feth stated that an Applicant’s failure to satisfy one of the factors is not fatal because all factors are weighed collectively to determine if, overall, it is in the interests of justice to restore the Appeal. Justice Feth weighed all of the relevant factors stating: (i) the Applicant had provided a reasonable explanation for the delay; (ii) the Applicant acted promptly to cure any defects; (iii) the Applicant demonstrated a consistent intention to proceed with his Appeal; (iv) the evidence did not demonstrate any actual prejudice to be suffered by the Respondent due to the delay; and (v) the Applicant’s Appeal had some arguable merit. The Court granted the Application.

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