BIG PLANS FOR LITTLE KIDS LTD v SOUSTER, 2022 ABCA 384
MARTIN, FEEHAN AND HO JJA
9.15: Setting aside, varying and discharging judgments and orders
The Appellants had previously sought to set aside a without notice preservation and replevin Order. In the Decision below, the Chambers Judge had refused to hear the Appellant’s Application because it was brought outside the 20-day statutory period under Rule 9.15(2). Consequently, the Appellants had applied to extend the 20-day deadline. The Application had been dismissed and the Appellants then appealed it.
The Court of Appeal noted that Rule 9.15(2) stipulates that a Party can apply to set aside, vary or discharge a without notice an Order provided that “unless the Court otherwise orders”, it applies within 20 days after the earlier of the (a) the date of service and (b) the date on which the Order came to its attention. The Court of Appeal noted that the interpretation of a Rule is a question of law reviewed on the correctness standard. The application of the Rule to particular facts is a question of mixed fact and law and is reviewed for palpable and overriding errors. Absent an error of law or principle, Rule 9.15 decisions are entitled to deference and will be varied only if unreasonable.
The Appellants had waited for over a year before they applied to set aside the preservation and replevin Order. They then waited a further three-and-a-half months before they applied to extend the 20-day period. The Court of Appeal held that there was no need for appellate intervention because the Chambers Judge did not commit an error of law or principle, nor did she misapply the case law on time extensions. The Court of Appeal held that it was appropriate for the Chambers Judge to consider the timing of the Appellant’s Application given that Rule 9.15(2) contains express language requiring an Application to be made within 20 days.
The Court of Appeal held that while Rule 9.15 is discretionary, if a party has willfully or intentionally delayed applying for an extension of time, the Court may require an explanation for such delay and assess its reasonableness in the circumstances.
The Court of Appeal dismissed the Appeal.View CanLII Details