Justices of the Alberta Court of King's Bench are openly calling for reform of Rule 6.14 of the Alberta Rules of Court, the rule that governs appeals from Applications Judges. The criticism targets two features of the current procedure. The appeal judge owes no deference to the decision under appeal, and the parties may file new evidence that was never before the Applications Judge. Several decisions since 2024 show how firm the judicial consensus has become. This article traces that criticism through Radi v Audet, 2024 ABKB 168 ("Radi"), Liberty Land Corporation v Kinnear, 2026 ABKB 248 ("Liberty Land"), and Interra Energy Services Canada Ltd v Yangarra Resources Ltd, 2026 ABKB 387 ("Interra"). Baker Law Firm appeared as counsel for the appellant in both Radi and Liberty Land.
The Rule the Judges Want Fixed
Rule 6.14 gives a party who loses before an Applications Judge an appeal to a justice of the Court of King's Bench, with two unusual features. The justice reviews the decision for correctness, owing no deference to the Applications Judge. And the appealing party may put new evidence before the justice, subject only to a low threshold.
Applications Judges decide many of the applications that shape a lawsuit, including applications for summary judgment and summary dismissal that can end a case outright. When their decisions are appealed, the standard of review is correctness, and where new evidence is filed the proceeding is often described as a hearing de novo, meaning the justice considers the matter afresh (Liberty Land at paras 7 and 10–11). The threshold for that new evidence is found in Rule 6.14(3), which requires only that the evidence be "relevant and material" (Liberty Land at para 67). Justice Reed was blunt about the standard. "This is a very lax test, and lack of due diligence does not form part of the test" (Liberty Land at para 69).
Compare that to an ordinary appeal. An appellate court defers to a trial judge's findings of fact unless they reveal palpable and overriding error, the standard from Housen v Nikolaisen, and fresh evidence is admitted only if it passes the four-part test in R v Palmer, which asks among other things whether the evidence could have been obtained earlier through due diligence (Radi at paras 31–32 and 36). Under Rule 6.14 neither protection applies. The practical result, as Justice Reed observed, is that the true appeal on the record "will be the exception rather than the rule" (Liberty Land at para 9).
"Dispiritingly Dysfunctional": Where the Criticism Started
The criticism arrived in 2024, and the phrase came first. In March of that year, Justice Devlin decided Radi. The case was an appeal from a civil trial in the Alberta Court of Justice over the sale of a used car, and the appellant sought to rely on Rule 6.14(4)(b) to introduce fresh evidence without satisfying the Palmer test. Justice Devlin held that the rule had no role to play in that kind of appeal, and he did not hide his view of the rule itself:
"Rule 6.14 represents a special procedure, applicable only to appeals from Application Justices. This dispiritingly dysfunctional rule thankfully has no application in any other context." (Radi at para 37)
The fresh evidence was assessed under Palmer, the application failed, and the appeal was dismissed. The "dispiritingly dysfunctional" label, however, took on a life of its own. The sustained critique of how the rule operates in its own domain came later the same year, from Justice Feasby in Lesenko v Wild Rose Ready Mix Ltd. As he recounted in Interra, he "explained at length" in Lesenko that the current approach "is not a good thing for the administration of justice and is not required by the Constitution" (Interra at para 4). From there the two strands merged. Devlin J's phrase and Feasby J's analysis began travelling together through the Court's decisions.
Liberty Land: Criticizing the Rule, Not the Litigant
In Liberty Land, Justice Reed allowed an appeal from a summary dismissal and, in doing so, gave the most vivid description yet of how Rule 6.14 changes litigation behaviour. He was equally clear that the appellant had done nothing improper by using the rule as written. The action concerned land transactions from 2007. Everything turned on what was said in a single conversation. An Applications Judge summarily dismissed the claim in 2022, in part because the plaintiff's responding evidence was layered with hearsay, and on appeal the plaintiff filed fresh affidavits, examined two non-party witnesses under Rule 6.8, and placed hundreds of pages of new evidence before the Court. Justice Reed described the dynamic this way:
"They put one foot forward, but it is certainly not their best. Then, when matters do not go in their favour, they give the other foot a pedicure and put that before this Court on appeal. The result is that the Court is often not hearing the same case on appeal than that which was before the Applications Judge" (Liberty Land at para 14).
He added that the appellant, having lost below, had "shored up its case" and presented a different record "to 'take a mulligan', relying upon the Rules and law to do so" (Liberty Land at para 15). Justice Reed was explicit. "I do not say this to impugn Liberty's conduct. It is acting within the permissible bounds of the law" (Liberty Land at para 16). The criticism is aimed at the rules, not at the parties who follow them.
On the merits, the appeal succeeded. Justice Reed found a genuine issue requiring a trial and set the summary dismissal aside. He closed the standard-of-review discussion by aligning himself with the reform camp:
"I, like Justice Feasby in Lesenko, respectfully suggest that it is time to reassess the Rules and the procedure governing the standard of review on appeals from Applications Judges, as well as the admission of new evidence on such appeals, to the extent possible, to address the issues that continue to affect this process." (Liberty Land at para 18)
Interra: "A Colossal Waste of Time and Money"
Seven weeks after Liberty Land, Justice Feasby returned to the subject in Interra, under a heading that quoted Justice Devlin's phrase directly. The case was a payment dispute over fracking products and services. An Applications Judge had granted summary judgment and dismissed the counterclaim, but by the time the appeal was heard the appellant had filed four additional affidavits, two cross-examination transcripts had been added, and new counsel was advancing new arguments. Justice Feasby observed that this transformation of the record "makes a mockery" of the principle from Weir-Jones Technical Services Incorporated v Purolator Courier Ltd that "the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial" (Interra at para 5). He endorsed Justice Devlin's assessment without reservation, writing "I could not agree more," and then explained the systemic cost:
"When the record before the Applications Judge is transformed on appeal the whole exercise in front of the Applications Judge turns out to have been a colossal waste of time and money." (Interra at para 6)
He also recorded how far the consensus has spread, listing five decisions of the Court, Liberty Land among them, in which justices have agreed that these appeals should instead attract the normal appellate standard from Housen v Nikolaisen (Interra at para 4). That level of agreement did not exist when Lesenko was decided in 2024. Despite his conviction that the current approach is "contrary to the interests of litigants and the efficient administration of justice," Justice Feasby confirmed that "I am bound to apply the law as it is, not as I think it should be" (Interra at para 7). Applying the law as it is, he heard the matter de novo on the expanded record, set aside the summary judgment, and sent the claim and counterclaim to trial together.
Is the Criticism the Whole Story?
A reassessment of Rule 6.14 now has the public support of multiple justices of the Court, and litigants should expect continued pressure toward the ordinary appellate standard and a stricter approach to new evidence. The direction of the commentary is consistent. Every decision discussed above applied Rule 6.14 as written, and the rule remains in force unless and until it is amended.
In our view, the same low evidentiary bar the reform commentary targets also protects litigants who are still building their case. The current rule creates a more forgiving environment for parties responding to dispositive applications in the early stages of litigation, when new documents may still be found and a theory of the case is still being built out. That flexibility can undoubtedly add to the cost of litigation, as Interra and Liberty Land both illustrate. But the low bar for new evidence also acts as a backstop. It gives the merits of a matter more weight, in the early stages of a file, than the procedural accuracy of counsel and clients who may still be refining their arguments on limited evidence. A rule change that imports Palmer-style due diligence into Applications Judge appeals would close that safety valve, and cases would more often be won or lost on the completeness of a record assembled before the parties fully understood their own dispute.
What Does This Mean for Litigants Right Now?
Rule 6.14 remains the law, applied as written even while criticized. For now, a party responding to a summary judgment or summary dismissal application has a meaningful second opportunity. If the application goes against them, they may appeal to a justice, file additional evidence that is relevant and material, and have the matter considered afresh.
That cuts both ways. A party who wins before an Applications Judge cannot treat the win as final, because the record they faced may grow substantially on appeal. And the judicial commentary canvassed above is a fair warning that the window may not stay open. If the Rules are amended along the lines the Court has suggested, the first hearing will carry far more weight, and parties who held evidence back will have no second chance to file it. The prudent course under either regime is the same one the case law has always demanded. Put your best foot forward the first time.
If you are facing an appeal from an Applications Judge decision, or responding to an application that could dispose of your case, contact Baker Law Firm's appellate litigation group.
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