Rule Details
BIG COUNTRY OUTDOOR SUPERSTORE INC v ROBERTSON, 2026 ABKB 610
Rules Discussed
- Rule 1.2 Purpose and intention of these rules
- Rule 1.5 Rule contravention, non-compliance and irregularities
- Rule 4.10 Assistance by the Court
- Rule 4.31 Application to deal with delay
- Rule 4.33 Dismissal for long delay
- Rule 6.14 Appeal from master’s judgment or order
- Rule 6.15 Appointment for questioning under this Part
- Rule 10.49 Penalty for contravening rules
Case Summary
The Plaintiffs appealed an Applications Judge’s decision granting Summary Dismissal of the Action. The Defendants applied to set aside the Plaintiffs’ Notice of Appeal for failure to comply with the procedural requirements in Rule 6.14 and 6.15.
Justice Kiss confirmed that an Application to set aside a Notice of Appeal for procedural non-compliance is governed by Rule 1.5. The Defendants had to establish procedural non-compliance and resulting prejudice, apply within a reasonable time, and take no further steps in the Action after learning of the prejudice. Any remedy or sanction was required to be proportionate pursuant to Rule 1.2(4).
The Court found that the Plaintiffs had failed to comply with Rules 6.14(2) and 6.14(5). Although the Plaintiffs filed and served the Notice of Appeal on time, they failed to reschedule the Appeal after it was adjourned sine die. The Plaintiffs also failed to file additional evidence within the prescribed deadline and waited more than a year to apply for an extension.
Justice Kiss rejected the Plaintiffs’ characterization of the breaches as mere technicalities, finding that the delay caused the Defendants both litigation and non-litigation prejudice. Kiss J. explained that Rule 1.5 requires prejudice rather than the “significant prejudice” required for dismissal for delay pursuant to Rule 4.31. The Court considered the age of the underlying events, the effect of further delay on witnesses, and the continued payment of substantial sale proceeds into Court.
Kiss J. found that the Defendants brought their Application within a reasonable time. Further, Justice Kiss determined that cross-examinations on Affidavits filed in support of a separate Application did not constitute a further step in the Action pursuant to Rule 1.5(3).
Given the Plaintiffs’ continuing non-compliance and delay in advancing the Appeal, the Court found that setting aside the Notice of Appeal was the only appropriate remedy. The Defendants’ Application was granted, and the Court did not consider the Plaintiffs’ Application to admit late evidence.