Justice Ross’ original Decision arose in response to Applications and an Appeal under the Arbitration Act, RSA 2000, c A-43. The Applicant then applied to have that Decision varied under Rule 9.13.

Ross J. referred to Lewis Estates Communities Inc v Brownlee LLP, 2013 ABQB 731 in discussing when it is appropriate for the Court to exercise its discretion under Rule 9.13 to re-open a case. There, it was stated that it is appropriate to re-open a case and vary a Judgment when there are “objectively demonstrable errors”, such as a misreading of a contractual term. It is inappropriate to do so when the Applicant is merely seeking “reconsideration of a judgment call”. Rule 9.13 is not a tool by which to obtain a second kick at the can.

Justice Ross therefore declined to exercise Her Ladyship’s discretion to vary the original Decision as it pertained to identifying additional issues of law or granting leave to appeal additional issues of law. Ross J. opined that this would be equivalent to allowing a second kick at the can, and directed the Applicant to the Court of Appeal.

Justice Ross felt it was appropriate, however, to exercise Her Ladyship’s discretion under Rule 9.13 to modify the original Judgment to provide further direction to the arbitrator to whom the matter was being remitted.