ABOUGOUCHE v MILLER, 2015 ABQB 724
9.15: Setting aside, varying and discharging judgments and orders
9.16: By whom applications are to be decided
The Applicant tenant applied to set aside an Order made by the Residential Tenancy Dispute Resolution Service (“RTDRS”), which terminated the tenancy between the parties, and granted Judgment to the landlord for one month of unpaid rent plus Costs.
Master Farrington stated that if a Master had jurisdiction to set aside an RTDRS Order based on nonappearance through inadvertence or mistake, it would be based on Rule 9.15. Master Farrington further stated that the test under 9.15 is “whether there is a reasonable explanation for failing to appear, whether there is an arguable defense, and whether the moving party promptly requested to set aside the order”. However, the preliminary issue in this case was whether Rule 9.15 applied. Master Farrington stated that Rule 9.16 is relevant in determining that question. The wording of Rule 9.16 suggests that only Orders granted by a Master or a Judge are subject to a Rule 9.15 Application. The RTDRS Order was not granted by a Master or a Judge. Citing relevant legislation and prior authority, Master Farrington held that the tenant’s Application was actually an Appeal of the RTDRS Judgment, and the Master did not have jurisdiction to hear an Appeal.View CanLII Details