1.5: Rule contravention, non-compliance and irregularities
9.12: Correcting mistakes or errors
9.13: Re-opening case
13.6: Pleadings: general requirements

Case Summary

Master Schlosser dismissed the Defendant’s Counterclaim in a prior decision (2015 ABQB 263 (CanLII)), and the Defendant subsequently applied to correct the reasons before the Order was signed, pursuant to Rule 9.12. The Defendant argued that the condominium’s rental regulations, which were the source of the dispute, were still “in play” which meant that there was a continuing cause of action sufficient to save the Defendant’s Counterclaim from a limitations defence. Master Schlosser noted that the Defendant was essentially trying to re-argue a portion of the earlier Application and Rule 9.12 is typically reserved for a narrow range of situations in which there is an error in the signed Judgment or Order. The exception exists under the Rules because a Court would otherwise by functus officio, and an Appeal would then be necessary.

Master Schlosser continued that the Defendant was really looking for a variation under Rule 9.13. Although there is broad power of review under Rule 9.13, the threshold is high. An Applicant needs to show a high likelihood of error, however, Rule 9.13 remains discretionary.

Master Schlosser held that the Defendant’s claim for a declaration with respect to the legalities of the rental regulations was still alive even though his claim for damages was over. Although the Limitations Act, RSA 2000, c L-12 was not specifically pleaded in the Counterclaim as it should have been, pursuant to Rule 13.6, it was an “irregularity without any identifiable prejudice” under Rule 1.5. Master Schlosser varied the prior dismissal of the Defendant’s Counterclaim, and ordered that the Defendant was entitled to a Declaration that the rental regulations were of no force and effect. The other claims in the Counterclaim were dismissed.

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