As I understand the submission of the appellants, they argue that the chambers judge committed two errors that amount to errors of law or principle: (i) She applied the wrong test, by considering the merits of the appeal and failing to restrict her consideration to the three-part test set out in Frew v. Frew (1990), 44 C.P.C. (2d) 34 (B.C.C.A.); and (ii) To the extent that she was entitled to consider the strength of the appeal, she erred in concluding that the appeal has no merit. The Test on Applications to Reactivate an Appeal
The appellants rely on Frew v. Frew as setting out the test to be met. In Frew, Chief Justice McEachern expressed the test for dismissing an appeal for delay in this way: I think the tests for this sort of thing are that there must first be inordinate delay; secondly, the delay must be unexplained or inexplicable; and thirdly, there must be prejudice.
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