MAZEPA v EMBREE, 2014 ABCA 438
BERGER, WATSON and SLATTER jja
1.3: General authority of the Court to provide remedies
1.5: Rule contravention, non-compliance and irregularities
3.65: Permission of Court to amendment before or after close of pleadings
The Plaintiff commenced an Action against the Defendant claiming unjust enrichment, exclusive possession of their residence and an Order severing joint tenancy. The Defendant brought a Cross-Application for a Restraining Order and exclusive possession of the residence. The Court of Queen’s Bench granted exclusive possession of the residence to the Plaintiff, and spousal support to the Defendant so that she could afford to seek different accommodations. The Plaintiff appealed to set aside the spousal support Order.
The Majority of the Court of Appeal noted that it is a well-established principle that relief should be limited to what is contained in the pleadings, but that this principle is not absolute. The Majority stated that Rule 3.65 limits the effect of this principle because it allows the Court to amend the pleadings at any time. Further, procedural requirements, and any irregularities, do not have any effect on the Court’s jurisdiction, pursuant to Rule 1.5(1). Procedural deficiencies are considered to be “irregularities” and are not jurisdictional. The Majority held that the Order was not rendered a nullity by any limitations in the procedure. The Majority concluded that the original Order was validly made and remained in effect until varied or terminated by the Trial Court.
Berger J.A., concurring with the Majority in the result, stated that because the parties had consented to the remedy at the original hearing, it was unnecessary to consider procedural irregularities. Therefore, Rule 1.3 would apply, allowing the Court to grant any remedy available. The Appeal was dismissed.View CanLII Details