Executive Summary: Key Legal and Evidentiary Issues

• The Court considered whether the Plaintiffs' Notice of Appeal should be set aside for failing to meet procedural deadlines under Rule 6.14 of the Alberta Rules of Court.
   
• Defendants argued that delay in advancing the appeal caused both litigation and non-litigation prejudice.
   
• Justice Kiss applied the five-part framework under Rule 1.5 to determine whether curing the non-compliance was appropriate.
   
• Cross-examining affiants on affidavits filed in a separate, unrelated application did not amount to a further step in the action under Rule 1.5(3).
   
• Evidence showed the Plaintiffs took no meaningful action to schedule the appeal or file additional evidence for well over a year past their deadlines.
   
• Ultimately, proportionality considerations under Rule 1.2(4) favored setting aside the appeal rather than curing the non-compliance.
   

Facts of the case

The Plaintiffs purchased a gun store in Grande Prairie, Alberta in 2016 from the Vendor Defendants (Ronald T. Robertson, Ronald Robertson Family Trust, Grant O. Robertson, Grant Robertson Family Trust, Darrel Padula, and Tony Padula Agencies Ltd.). The Plaintiffs later alleged that the store's inventory had been overstated at the time of sale, and brought claims of fraudulent misrepresentation and fraudulent concealment against the Vendor Defendants and their accountants, Paul Gallo, Simone Brunton, and Grant Thornton Limited (the Accounting Defendants). Applications Judge W.S. Schlosser summarily dismissed the action on March 28, 2024, finding the Defendants had shown a prima facie case that the claim was filed out of time and that the Plaintiffs could not meet their burden under section 3(5)(a) of the Limitations Act.

The Plaintiffs filed a Notice of Appeal on April 9, 2024, but the appeal was never scheduled. Over the following two years, the parties exchanged correspondence, filed competing applications, and appeared before several judges without resolving how the appeal would proceed. The Vendor Defendants sought payout of $718,591 held in Court from the original sale proceeds. The Plaintiffs sought a stay of enforcement and later an order permitting late-filed affidavit evidence and FOIP material from the RCMP. Both the Vendor Defendants and the Accountant Defendants ultimately applied to strike or set aside the Notice of Appeal for non-compliance with procedural timelines, and the Plaintiffs applied for leave to file additional evidence out of time. These three applications were heard together following Case Conferences before Justice Martin in January 2026.

Policy and legislative provisions at issue

Two rules under the Alberta Rules of Court, Alta Reg 124/2010, were central to the analysis. Rule 6.14 governs appeals from an applications judge's decision, requiring a notice of appeal to be filed within 10 days, made returnable within two months, with additional evidence and written argument filed within one month of service and responded to within set timelines. Rule 1.5 addresses contraventions or non-compliance with procedural requirements, allowing a party to apply either to cure the defect or to have the irregular step set aside where prejudice results. Under Rule 1.5, the Court must not cure non-compliance unless doing so causes no irreparable harm, appropriate terms or sanctions are imposed, and curing the defect serves the overall interests of justice. Rule 1.2 sets out the Rules' purpose of resolving disputes fairly, justly, and in a timely, cost-effective manner, and requires that any remedy or sanction imposed be proportional.

Reasoning and analysis

Justice Kiss found that the Cairns test, normally used for late-filed appeals, was not appropriate here because the appeal itself had been validly commenced; the relevant question was instead whether the Plaintiffs had complied with the Rules governing an appeal already underway. Applying Rule 1.5, the Court worked through five requirements: contravention, prejudice, timeliness of the Defendants' own application, absence of a further step by the Defendants, and proportionality of the remedy.

On contravention, the Court found the Plaintiffs failed to comply with both the two-month scheduling requirement in Rule 6.14(2) and the one-month deadline for additional evidence in Rule 6.14(5), having taken no steps to reschedule the appeal for over a year and having sworn key affidavits more than four months after their filing deadline. On prejudice, the Court accepted that the Defendants had been unable to access $718,591 held in Court since approximately 2020 and had suffered ongoing non-litigation prejudice from unresolved decade-old fraud allegations, citing the Court of Appeal's guidance in Humphreys v Trebilock, 2017 ABCA 116 that faster resolution is expected where fraud is alleged. On timeliness, the Court found the Defendants' own applications, filed seven and nine months after becoming aware of the non-compliance, were reasonable given they had first given the Plaintiffs an opportunity to comply. On the "further step" question, the Court rejected the Plaintiffs' argument that cross-examining the affiants on affidavits filed in a separate stay application amounted to a step advancing the appeal itself, relying on the functional approach described in Warren v Cowling, 2019 ABQB 403. Finally, on proportionality, the Court reviewed a pattern of continued delay, including a FOIP request submitted more than thirteen months late and a Special Chambers brief filed a week past its deadline, and concluded that striking the appeal was the only proportionate remedy under Rule 1.2(4).

Ruling and overall outcome

Justice Kiss granted both the Vendor Defendants' and the Accountant Defendants' applications and set aside the Plaintiffs' Notice of Appeal, meaning the underlying summary dismissal of the action stands. As the successful parties, the Vendor Defendants and the Accountant Defendants were found entitled to costs; the decision does not specify a monetary amount for costs, directing instead that the parties may provide written submissions of no more than three pages if they cannot agree within 30 days. The application concerning the late-filed Allison and Davison Affidavits and the outstanding FOIP evidence was not decided, as it was rendered moot by the outcome on the first issue.