Hit the ground running: What to do when your appeal is struck

In Can v Alberta Securities Commission, 2023 ABCA 21, Madam Justice Rowbotham of the Alberta Court of Appeal issued brief written reasons reiterating and considering the test to restore an appeal.

The Court of Appeal will consider the following factors in assessing whether to restore an appeal:

1. Whether the applicant intended in time to proceed with the appeal;
2. What explanation is offered by the applicant for the defect or delay which caused the appeal to be struck or deemed abandoned;
3. Whether the applicant moved with reasonable promptness to cure the defect and have the appeal restored;
4. Whether the appeal has arguable merit; and
5. Whether the respondents have suffered any prejudice, which includes consideration of the length of delay.

None of the above factors is determinative, and failing to meet one factor is not necessarily fatal to an application to restore an appeal. 

The applicants in this case sought to appeal two decisions on the Alberta Securities Commission. The first decision, issued Aug. 24, 2020, found the applicants in breach of provisions of the Securities Act, RSA 2000, c S-4 (the First Decision). The second decision, issued March 14, 2021, ordered sanctions against the appellants for the breaches (the Second Decision). The applicants filed a notice of appeal of both decisions on April 15, 2021. However, the Court advised the applicants' counsel that it was out of time to appeal the First Decision, and that the applicants must make an application for an extension of time to appeal. The applicants did not bring an application to extend the time to appeal the First Decision.

After successfully filing the appeal of the Second Decision, the applicants then failed to file their appeal record and transcripts by the deadline of Aug. 15, 2021. The appeal was struck shortly after, and on Feb. 18, 2022, the appeal was deemed abandoned. 

The applicants sought to restore the appeal of the Second Decision on the basis of counsel error, as set out in an affidavit of their counsel. That affidavit, and a transcript of cross-examination on the affidavit, was the only evidence before the Court in the application.

The Court dismissed the applicants' application to restore the appeal. Madam Justice Rowbotham found that:

1. There was no evidence from the applicants as to whether they intended to proceed with the appeal during the relevant time. The lack of evidence led to an adverse inference that the applicants did not intend to pursue the appeal.
2. Although there is no "rigid rule" that counsel error is an insufficient excuse for delay, and indeed prior cases have accepted counsel error as a reasonable explanation, it did not suffice in this case. The oversight by counsel was "very significant," and involved a failure to act on numerous items of correspondence advising that the appeal was struck long before the application to restore was brought before the Court.
3. More than a year elapsed between the appeal being struck due to failure to file materials, and the application to restore being brought before the Court. When the application was brought, it did not append the late materials to demonstrate to the Court that the applicants were in a position to immediately cure the defect. 
4. The merits of an appeal need only be arguable, and demonstrate that the appeal is not "hopeless or frivolous." However, the Court noted that of the 38 grounds of appeal the applicant advances, at least 30 were questions of fact, which are reviewed on the standard of palpable and overriding error. Without a factum appended to the application to demonstrate otherwise, the Court found the appeal had little chance of success.
5. As the application to restore the appeal was brought more than six months after it was struck, prejudice to the respondent was assumed in this case. 

Although the test for restoring an appeal is not new, Justice Rowbotham's analysis of the factors in this case serves as a strong reminder to counsel and parties of the need for diligence when deadlines are missed. The ability to restore an appeal recognizes the potential for human error, including counsel error. However, it also requires prompt action to remedy that error. Counsel learning of a struck appeal must move with a sense of urgency, and demonstrate to the Court that the applicant is ready to immediately correct the defect and advance the appeal. The practice of appending the late materials to the application to restore is prudent and its importance, in light of Justice Rowbotham's comments, cannot be overstated.