The individual Defendant applied under Rule 9.15(1) to set aside a Summary Judgment awarded against him personally and against the corporate Defendant. He claimed that he did not appear in Court on the required day due to two interfering events or circumstances: (1) he was in a remote part of Africa with limited technology resources and unable to attend; and (2) the Court granted a procedural Order on August 9, 2023 setting the matter for hearing on September 6, 2023 based on a misapprehension that the individual Defendant had consented to the September 6, 2023 hearing date.

The Court noted that Rule 9.15(1) permits the Court to revoke a Judgment or Order made following a Trial or hearing at which an affected person did not appear because of accident, mistake, or insufficient notice. Citing Hammond v Hammond, 2019 ABQB 522, the Court also noted that the purpose of the Rule is to remediate the injustice caused to a non-attending party where that party would have attended but for some “interfering” event or circumstance.

The Court held that the individual Defendant’s situation did not fall into these categories. This was not a case where any sort of “accident” was alleged that prevented the individual Defendant from attending Court. Nor was it a question of “insufficient notice” since the individual Defendant admitted to having more than two months of advance notice and had been communicating regularly with counsel for the other side regarding the Application during those two months. In addition, not physically being available was not a mistake.

The Court then addressed the individual Defendant’s alleged interfering circumstances. The Court noted that being unavailable for the Court date on which the other side insists on proceeding behooves the unavailable party to do something, which the individual Defendant failed to do during an entire month before the hearing date. In addition, even if the procedural Order was made under a misapprehension induced by Plaintiff’s counsel, which the Court denied, such misapprehension was not an “interfering event” in that it did not prevent the individual Defendant from attending Court through counsel or remotely. 

As a result, the Defendants’ Application to set aside the Summary Judgment Order was dismissed.