Executive Summary: Key Legal and Evidentiary Issues

• Patrick Okuns applied to restore an appeal that was struck for failure to file an Appeal Record within four months and subsequently deemed abandoned for failing to take restorative steps within six months

• The underlying dispute concerned whether the Canadian Union of Public Employees breached its duty of fair representation when it declined to arbitrate Okuns' termination grievance after reviewing video evidence

• Alberta Labour Relations Board summarily dismissed Okuns' duty of fair representation complaint in December 2021, finding it lacked merit and had no reasonable prospect of success

• Court considered five discretionary factors for restoration: arguable merit, explanation for delay, reasonable promptness in curing defects, timely intention to proceed, and lack of prejudice to respondents

• Application faced a heightened threshold given the appeal was deemed abandoned, requiring exceptional circumstances and exercise of discretion sparingly in the interests of justice

• Court dismissed the restoration application finding little merit to the appeal, inadequate explanations for extensive delays, and presumed prejudice to the respondent

Background facts

Patrick Okuns was terminated from his employment as a bus driver on April 2, 2019, resulting from interactions with a minor female passenger. The Canadian Union of Public Employees (Local 1505) filed a grievance on his behalf on April 2, 2019. On September 21, 2020, the Union determined not to proceed, citing a poor prospect of success based on video footage of the incident. Okuns appealed that decision and his appeal was dismissed on September 25, 2020.

Duty of fair representation complaint

On January 4, 2021, Okuns brought a duty of fair representation complaint against the Union. On December 7, 2021, the Alberta Labour Relations Board summarily dismissed his complaint for lack of merit.

Judicial review proceedings

On January 6, 2022, Okuns brought an application for judicial review of the Labour Relations Board dismissal. On February 7, 2022, a consent order was filed in the Court of King's Bench setting out timelines for the judicial review to proceed. On December 9, 2022, Okuns missed his deadline to file his supplemental affidavit, and on December 10, 2022, his lawyer withdrew from the record. On January 13, 2023, Okuns missed his deadline to file his brief and authorities, and on January 17, 2023, his application for judicial review was struck under Civil Practice Note 1, paragraph 12(c), for failure to meet the timelines.

On May 25, 2023, a new lawyer for Okuns applied to extend the deadlines for steps to be taken and to restore his judicial review application. On July 27, 2023, a Court of King's Bench judge refused to extend the deadlines for the filing of Okuns' materials and refused to reinstate his judicial review application.

Appeal proceedings and multiple delays

On August 25 and September 13, 2023, Okuns filed a Notice of Appeal and an Amended Notice of Appeal in the Court of Appeal. On September 28, 2023, the Court of King's Bench denied his application for reinstatement of his judicial review application in that court.

On January 3, 2024, Okuns' appeal was struck for failure to file an Appeal Record within four months after the Notice of Appeal. On January 12, 2024, his new lawyer withdrew from the record.

On July 4, 2024, Okuns' appeal was deemed abandoned as no further steps had been taken for six months to restore the struck appeal to the record.

Attempts to file restoration application

On October 10, 2024, Okuns sought assistance from the Registry about how he should proceed in the face of his abandoned appeal. On November 28, 2024, Okuns attempted to file an application to restore the appeal, but it was rejected for irregularities on December 3, 2024. The Registry provided advice to Okuns on December 3, 2024, and August 20, 2025, on how to proceed to bring the current application. The application was filed on August 21, 2025, two years after the filing of the Notice of Appeal.

Okuns attributed the delays to multiple unforeseen counsel withdrawals and procedural obstacles beyond his control. He stated he was exhausted with the entire proceeding. In oral submissions, Okuns also said he was suffering from obstructive sleep disorder over this period of time. The Union stated in oral submissions that over this time, Okuns never communicated with it, gave reasons for the delay, or expressed his intention to proceed.

Court's analysis of restoration factors

The Court applied a five-factor discretionary test for restoration: arguable merit to the appeal, an explanation for the defect or delay which caused the appeal to be taken off the list, reasonable promptness in moving to cure the defect and have the appeal restored to the list, intention in time to proceed with the appeal, and lack of prejudice to the respondents, including the length of delay. The Court emphasized that when an appeal is deemed abandoned, the threshold for restoration is heightened and the discretion to restore such an appeal is to be exercised sparingly and always with a view to the interest of justice.

Regarding merit, Okuns submitted his appeal had merit given the underlying questions about CUPE's duty to fairly represent him and the Labour Relations Board's decision to summarily dismiss without thorough consideration of the video evidence. The Court noted that while the Union filed a grievance on behalf of Okuns, it decided on September 21, 2020, not to proceed to arbitration after it had reviewed the video evidence of the incident in question, as the grievance had a poor prospect of success. On December 7, 2021, the Labour Relations Board summarily dismissed the complaint against the Union saying it lacked merit and had no reasonable prospect of success.

Okuns alleged that the video was not authentic and it may have been doctored, that the Labour Relations Board took the video at face value and failed to investigate the authenticity of the video. He also alleged the transcript of the video may not be an accurate representation of the video evidence. However, the Court found the Labour Relations Board found the video was authentic and relied upon the transcript of the video, and they were entitled to do so without some significant evidence that the video had somehow been doctored or was inauthentic, and the transcript was inaccurate. The Court concluded it appeared there was little merit to Okuns' appeal.

On the issue of delay, the Court found there was no explanation for the four-month delay when Okuns had counsel before his appeal was struck. Immediately after the appeal was struck, Okuns' new counsel withdrew on January 12, 2024, and no explanation had been provided for the withdrawal of this counsel.

The Court noted that in the Struck Certificate-Late Appeal Record of January 3, 2024, the Registrar provided Okuns with detailed instructions on how to apply to restore the appeal, specifically stating: "If you intend to apply to restore this appeal, you must apply as quickly as is reasonably possible. Failure to act diligently will hurt your position." The Registrar also advised that if no application was filed to restore the appeal within six months, it would be deemed abandoned, stating "you cannot wait until the last minute if you want to restore this appeal. You must act without delay." No steps were taken during that six-month period between the striking of the appeal on January 3, 2024, and the appeal being deemed abandoned on July 4, 2024.

The Court noted that on July 4, 2024, the Registrar provided Okuns with a Report of Civil Appeal indicating his appeal had been abandoned, and a three-month period expired before Okuns took any further steps. This application to restore the appeal to the Record was not made until August 21, 2025, 17 months after it had been struck and 11 months after it had been deemed abandoned. No adequate explanation had been given for those lengthy periods of delay in the appeal process. The Court stated it was not an excuse that after January 12, 2024, Okuns was self-represented.

The Court found no reasonable promptness had been exhibited by Okuns in moving to cure the defect and have the appeal restored to the list. Likewise, there had been no explanation of positive intention to progress this matter by Okuns during the period between August 25, 2023, and July 4, 2024, when he took no steps in this Court. While Okuns may subjectively have intended to progress this matter over the periods of delay, the Court found that was not objectively evident from the record.

Finally, the Court held that prejudice to the respondent was to be presumed, as at some point the successful party has a legitimate expectation that the judgment is final, given the lengthy delay in this matter, and in particular, the delay in bringing this application to restore the appeal after it was deemed abandoned. Okuns had not overcome this presumption.

Ruling and outcome

The Honourable Justice Kevin Feehan dismissed the application on September 29, 2025. The application had been heard on September 25, 2025. The Court invoked Rule 9.4(2)(c) and prepared the resulting order. No monetary award was mentioned or ordered in this decision.