7.1: Application to resolve particular questions or issues
9.15: Setting aside, varying and discharging judgments and orders
9.16: By whom applications are to be decided
12.70: Powers of Court on appeal

Case Summary

The Plaintiff in a personal injury Action sought determination of an issue in advance of Trial, pursuant to Rule 7.1. Specifically, the Court was asked to decide whether the Action was res judicata, given that a Default Judgment for property damage, arising from the same facts, was obtained in the Provincial Court of Alberta. The parties agreed to sever the issue of res judicata, and the Court proceeded to review the issues of cause of action estoppel and merger, ultimately finding that these doctrines were engaged, but exercising discretion in not applying them.

In an alternative line of argument, the Court was asked to either set aside the Default Judgment or to read into the Default Judgment an implied term preserving the Plaintiff’s ability to pursue personal injury damages. Rule 9.15 gives the Court the authority to set aside or vary a Judgment subject to Rule 9.16, which provides that such authority can only be exercised by the Judge or Master who granted the original Judgment unless the Court otherwise directs. “Judgment” is a defined term meaning “a judgment of the Court”, wherein “Court” is in turn defined as the Court of Queen’s Bench of Alberta. As the original Judgment was made by a Provincial Court Judge, Justice Feth held that in the absence of specific authority, such as the authority provided for an Appeal under the Family Law Act, RSA 2003, c F-4.5, pursuant to Rule 12.70, His Lordship had no jurisdiction to set aside the Default Judgment. Moreover, Justice Feth declined to read in an implied term inconsistent with the otherwise unequivocal wording of the Default Judgment.

View CanLII Details