1368276 ALBERTA LTD v GROTSKI, 2017 ABCA 230
Berger, martin AND rowbotham jja
14.38: Court of Appeal panels
The Applicant, 1368276 Alberta Ltd., applied for permission to reargue its Appeal pursuant to Rule 14.38(2)(c) on the basis that the Court had misapprehended or overlooked certain evidence. The Applicant argued that the Court had misapprehended the wording of a mortgage amendment when determining whether payment under that mortgage was mandatory.
The Court noted that permission to re-argue an Appeal is available only in exceptional circumstances. When the allegation is that the Court overlooked or misapprehended evidence during the Appeal, the Applicant must demonstrate that the evidence would have changed the outcome. However, where the Appellant disagrees with a finding of fact, the appropriate procedure is to appeal the Decision to a higher court. The Court held that the issue of the interpretation of the mortgage amendment was fully canvassed in both the factums and oral argument and that the Applicant merely disagreed with the Court’s conclusion on the evidence.
The Court dismissed the Application.View CanLII Details