The Conduct of an Appeal Blog

Ellis v Pelley Estate: Newfoundland Court of Appeal clarifies the test for reinstatement under the new Court of Appeal Rules

Mar 22, 2017 2 MIN READ
Mark A. Gelowitz

Partner, Disputes, Toronto

In Ellis v Pelley Estate, the Newfoundland Court of Appeal clarified the test for reinstatement of an appeal under the new Court of Appeal Rules, NLR 38/16. The new rules came into force on October 17, 2016. Rule 17(9) of the new rules provides that an appeal may be reinstated “upon terms the Court considers just”. Under the former rules, a civil appeal could be reinstated where refusal to do so would “create an injustice”. The test for reinstatement involved balancing the following factors, set out in Fahey v. The Law Society of Newfoundland:

(i)      whether the appeal discloses an arguable case,

(ii)     whether the applicant had a bona fide intention to proceed with his or her appeal,

(iii)   whether the applicant has a reasonable excuse for failing to proceed with his or her appeal prior to the deemed abandonment,

(iv)   the timeliness of the application of reinstatement, and

(v)     the presence or absence of special circumstances that might justify or deny reinstatement.

In Ellis, the Court of Appeal clarified that the Fahey factors continue to provide assistance in determining whether reinstatement should be ordered under the new rules. The Court ultimately determined that there was no arguable basis for the appeal and, therefore, it would not have been just to reinstate the appeal. Since Ellis, the Court has continued the apply the Fahey factors. See, for example, Winters v. Nor-Lab Limited and George v The Royal Newfoundland Constabulary Public Complaints Commission.