JLL v JLC, 2018 ABQB 838
9.12: Correcting mistakes or errors
The Appellant, JLL, (the “Mother”) appealed two decisions of the Provincial Court of Alberta (the “Appeals”) which had included amendments made to a previous Order by the Honourable Judge Shaw (the “Shaw Order”). The Appeals arose in the context of a dispute between the Mother and her parents (the “Grandparents”). The dispute related to the Mother’s daughter, (the “Child”), and the extent to which the Grandparents could have contact with her.
The Shaw Order initially included five paragraphs, and the Court, of its own motion, added two additional paragraphs by way of an amendment (the “Shaw Amendments”). The Mother, having already appealed the Shaw Order, which was dismissed by Justice MacLeod, now appealed the Shaw Amendments. Her grounds of appeal included, inter alia, that Judge Shaw should not have amended the Shaw Order without notice to counsel, and counsel should be entitled to notice if a Judge is going to change the terms of an Order.
Grosse J. noted that the standard of review in this case awarded the first instance Judge a high degree of deference, though an error in principle or an unreasonable exercise of judicial discretion would warrant intervention. Justice Grosse found that making the Shaw Amendments without notice to counsel did not amount to an error in principle, an unreasonable exercise of discretion, or an otherwise reversible error. The provisions added to the Shaw Order came directly, almost word for word, from the decision of Judge Shaw. There was therefore no prejudice to either party, nor any surprise. Justice Grosse found that, given the previous appeal of the Shaw Order, the Mother was not permitted to re-argue the merits of the provisions in question.
Grosse J. determined that Rule 9.12, commonly known as the “slip rule”, did not expressly cover this situation, because Rule 9.12 contemplates an Application by one of the parties and not an amendment from the Court. Nonetheless, Justice Grosse emphasized that while there is generally no power of the Court to amend an entered Order or Judgment, exceptions exist where there has been a clerical error in “drawing it up” or where there has been an error in expressing the manifest intention of the Court. Justice Grosse determined that the Shaw Amendments fell within these exceptions and therefore dismissed the Appeals.
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