9.13: Re-opening case
9.3: Dispute over contents of judgment or order
Rule 508: Stay of Enforcement

Case Summary

Pursuant to the provisions of Rule 9.3, the Parties asked the Court to settle the minutes of an Order arising from the Court’s written Decision issued on September 13, 2012. There were several contested issues. After reviewing each of the issues, the Court concluded that the form of Order proposed by the Edmonton Flying Club best reflected the Court’s Decision.

One of the contested issues was whether the Order should take into account a new development which occurred after the September 13, 2012 Decision. The new development was the City of Edmonton’s decision, on October 5, 2012, to serve a Notice of Intention to expropriate the interests of the Flying Club, and others, in the Edmonton City Centre Airport lands. In concluding that the Order should not take this into account, the Court stated that:

…although the law allows a court to vary its order before it is entered … that power should not be lightly exercised [original citation omitted]

Further, the Court added that:

…[B]ecause the court’s [earlier] decision … was only an interlocutory decision, the City of Edmonton’s application to vary that decision based on the intention to expropriate, can still be heard in a special chambers hearing as a normal application to vary an existing interlocutory decision based on a material change of circumstance. The court’s [earlier] decision … was not a final decision or judgment in the matter; unless a final judgment is varied or struck before it is entered, it can only be appealed. However, an interlocutory order can easily be varied if material new circumstances justify a variance …

Another contested issue was whether, pursuant to Rule 508, the Court should stay its Decision of September 13, 2012 to allow the City to appeal that Decision. Veit J. first noted that: “pursuant to the provisions of Rule 508(3) a refusal by me, as the judge appealed from, will not prevent the respondents from applying for a stay to the Court of Appeal…”. In concluding that the Decision should not be stayed, Veit J. cited the following two reasons:

(a)  The City has not yet appealed Her Ladyship’s Decision; and

(b)  The Decision represented Her Ladyship’s best understanding of the evidence and the law.

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