FERGUSON v TEJPAR, 2022 ABKB 656
1.2: Purpose and intention of these rules
1.4: Procedural orders
9.15: Setting aside, varying and discharging judgments and orders
9.16: By whom applications are to be decided
The dispute concerned the future use of a lot (the “Property”) purchased by the Respondents. A caveat was registered against the Property (the “Caveat”), with the primary issue being whether the Caveat was binding against the Respondents.
The Respondents had filed an Application to discharge the Caveat and a corresponding removal Order was granted, which had the effect of removing the Caveat (the “Removal Order”). The Applicant subsequently brought an Application pursuant to section 21 of the Land Titles Act, RSA 2000, c L-4 for a restoration Order, which had the effect of restoring the Caveat (the “Restoration Order”).
Among other issues, the Applicant and the Respondent had applied to set aside, vary or discharge the prior Orders in accordance with Rule 9.15(a) on the grounds that each Application that the prior Orders were granted under had been brought without notice to one or more affected persons.
The Court noted that Rule 9.16 codified the principle setting out that the Master or Justice who gave the respective Order has the authority to hear the Application to be able to vary or discharge it. The Court further noted that the Parties were in agreement that the Court had the authority to hear all issues in the dispute in accordance with Rules 1.2 and 1.4 and that this was an appropriate case to set aside the time restriction in Rule 9.15(2), which provides that an Application to set aside, vary or discharge an Order must be made within 20 days after the Order is served on the Applicant.
The Court found that both the Applicant and Respondent were aware of other interested Parties when they had brought their respective Applications which resulted in the Removal Order and Restoration Order but failed to give notice to those parties. The Court additionally noted that the Respondent and Applicant were respectively a practicing and retired lawyer such that the obligation to notify interested parties could not have been a surprise to either of them. The Removal Order and the Restoration Order were set aside on the basis that notice ought to have been provided to all affected Parties.View CanLII Details