LUSCOMBE v RE/MAX REAL ESTATE (EDMONTON) LTD, 2023 ABKB 63
APPLICATIONS JUDGE SUMMERS
9.15: Setting aside, varying and discharging judgments and orders
The Applicants applied to set aside Judgment against them under Rule 9.15, which allows the Court to set aside a Judgment or Order on Application.
At the outset, the Court noted that Judgment was granted against the Applicants with notice. The Applicants were not noted in default and their Statement of Defence was not struck. As such, the Court determined that Rule 9.15(3) did not apply as that Rule only applies to Judgments granted against an Applicant noted in default or whose defence has been struck.
The Court considered the Application under Rule 9.15(1)(b), which allows the Court to set aside a Judgment or Order following a hearing where the Applicants did not appear because of accident or mistake. The Court noted that the Applicants provided evidence that they were elderly and had health issues. The Applicants also believed that they had no liability and relied on one of the other Defendants who retained counsel to defend them.
The Court declined to set aside the Judgment against the Applicants. The Court reviewed cases suggesting that Rule 9.15(1)(b) allows for an Application to set aside or vary Orders or Judgments granted following inadvertent failure to appear at a Trial or a Chambers Application. The Court noted that the Applicants paid little attention to the lawsuit and made a conscious decision to rely on one of the other Defendants to defend them. The Court determined that the Applicants made a conscious decision not to attend the hearing at which Judgment was granted rather than failing to attend due to accident or mistake.View CanLII Details