Two Defendants in a receivership Action applied to vary an Order pursuant to Rule 9.15(4)(a) and (c), asserting that new evidence had arisen after the Order was made, and alternatively, that the Court ought to use its discretion to vary the Order on grounds it considered just.

Justice Romaine found that all of the evidence adduced by the Applicants had been in existence since the receivership proceedings began, and that even if that was not the case, the evidence relied upon by the Applicants would not have changed the Order in any event. Justice Romaine also noted that the Applicants asserted that the evidence was not new so much as their former counsel was unable to obtain the proper documents nor properly explain the history of the debtor companies to the Court. Justice Romaine held that even if there was any foundation to those assertions, the remedy would not lie with Rule 9.15.

The Applicants also asserted that the Court ought to use its discretion to re-open the Decision because the original Decision misconstrued material evidence or misapplied the law. Justice Romaine held that the Court was “clearly functus unless the grounds set out in Rule 9.15 […] mandate relief…”.  The Application was dismissed.