The Case Management Justice, Madam Justice Loparco issued a Case Management Endorsement (“CME”) stating that certain settlement agreements and supporting documentation were not relevant and material to an issue in dispute.

The Plaintiffs challenged the CME. They applied to Justice Loparco for two Orders. First, they applied under Rule 9.14 (which allows the Court to make a further Order in certain circumstances) to compel the Defendants to list all documents that had not been produced, but that Justice Loparco privately reviewed in rendering the CME. Second, they applied under Rule 9.13 to re-open and vary the CME based on new evidence.

Relying on Yassa v Parker, 2018 ABQB 305, Justice Loparco explained that Rule 9.14 is used to “give effect to the judge’s original intention”. Here, the Plaintiffs requested access to documents that were held by Justice Loparco to be irrelevant. An Order to produce irrelevant documents would not give effect to Loparco J’s CME. The CME did not depart from the Rules of Court since Rule 5.8 already required privileged documents to be listed with specific reasons for their privilege. The Plaintiffs’ application under Rule 9.14 failed.

Under Rule 9.13(b), the Court can, if is satisfied that there is good reason to do so, hear more evidence to modify an Order before it is entered. In conjunction with Rule 1.2, a Judge can investigate whether a Judgment contains an error and whether to fix it. This avoids unnecessary and costly appeals.

Justice Loparco relied on CWT v KAT, 2015 ABQB 68 to describe the Court’s powers under Rule 9.13(b): (1) the Court may act only on Application by a party, (2) the Court may hear more evidence and change or modify its Judgment or Order or reasons for it, and (3) the Court must be satisfied that there is good reason to make such a change or modification.

To determine whether to admit the Plaintiffs’ new evidence under Rule 9.13, Justice Loparco applied the test from CZ v RB, 2019 ABCA 445, and stated that the test must be used sparingly and requires consideration of whether: (a) the evidence could have been obtained earlier if due diligence had been observed, (b) the evidence is credible, (c) the evidence would have been conclusive in producing the opposite result to that earlier pronounced, and (d) the evidence in its present form was admissible under the rules of evidence.

To determine whether there was good reason to hear more evidence to modify the CME, Justice Loparco considered the factors outlined in Aubin v Petrone, 2020 ABQB 708:

(a)                The desirability of avoiding unnecessary and costly appeals;

(b)               The desirability of the appeal court having a fully developed factual and legal record;

(c)                The need for finality and certainty in legal proceedings;

(d)               That errors to be corrected should be objectively demonstrable (such as an incorrect statement of law or interpretation of a contract which all parties agree is incorrect);

(e)               The rule is not a vehicle for seeking reconsideration of a judgment call; and

(f)                 The threshold for a court to exercise its discretion should be high to avoid applications which are in reality, a ‘second kick at the can’.

Her Ladyship held that there was good reason to hear more evidence in this case, as to avoid unnecessary and costly appeals, and to provide finality and certainty in legal proceedings.

In applying the test to admit new evidence under Rule 9.13, Justice Loparco held that the new evidence could not have been obtained earlier. The evidence was credible and admissible. However, Justice Loparco was unable to conclude that the new evidence would make the documents determined by the CME to be irrelevant, relevant. Therefore, the Plaintiffs failed to vary the CME.