The Applicant sought an Order to discharge an ex parte Order ordering the discharge and withdrawal of a restrictive covenant. The Application was originally brought under the “old” Rule 387(3), which allowed for a Master or Justice to vary or discharge an ex parte Order. However, when the Application was heard, the new Rules of Court were in effect and Rule 9.15(1) was the applicable Rule. The material difference between Rule 387(3) and 9.15(1), is that Rule 9.15(1) does not require notice to be provided to the other parties in the Action, whereas its predecessor required notice to “every person affected”.

Prior to engaging in a substantive analysis, the Court considered whether the new Rules applied to the Application before it and held that an Application to discharge the Order fell within the description of an “existing proceeding” under Rule 15.1(a) of the new Rules as a “court proceeding commenced but not concluded under the former rules”. In determining whether the new Rules should apply, the Court cited Rule 15.2(1) which provides that the “new Rules apply to every existing proceeding unless otherwise stipulated”. However, Rule 15.6 provides an exception to this Rule:

…where there is any doubt about whether the former or the new Rules apply, or any difficulty, injustice, or impossibility arises, the Court may make an order suspending the operation of a new Rule and substituting a former rule. In addition, Rule 15.12 provides that where the new Rule imposes “a new test, provide a new criteria or provide an additional ground for making an application”, the new Rules apply in respect of applications made but not heard prior to the coming into force of the new Rules.

Insofar as the Application before it was concerned, the Court held that the new Rules governing an Appeal from a Master’s Decision to a Justice did not apply. The Court found that the variation or discharge of an ex parte Order made by a Master under Rule 9.15(1) is not an Appeal within the meaning of Rule 6.14(3), since the Application could also be made before a Master. A finding that Rule 6.14(3) did apply to Rule 9.15(1) “would be to place limits on the parties’ evidence which would not apply if they had made the application to a Master”. However, the Court noted that if Rule 6.14(3) did apply it would use its powers of discretion under that Rule to permit the new evidence which was presented in relation to the Application to vary and discharge the ex parte Order. The Court held that if the new evidence was not admissible under Rule 6.14(3) it would have applied Rule 15.6 which allows the Court discretion to substitute the former Rule for the new Rule, and would have allowed the new evidence to be heard.