MONTES v AL-SHIRAIDA, 2011 ABQB 54
9.15: Setting aside, varying and discharging judgments and orders
9.16: By whom applications are to be decided
The Defendant applied to set aside two separate Consent Judgments entered into between the Plaintiff and the Administrator of the Motor Vehicle Accident Claims Act. The Consent Judgments were granted by Justice Hillier in June of 2006. The requirement, pursuant to Rule 9.16, that the same Justice who heard the original Application hear the Application to set aside, was dispensed with as a result of a 4 ½ year delay between the date of the original Judgment and the Application to set aside -- Rule 9.15 allows the Court to set aside a Judgment made without notice to one of the parties, or following a Hearing at which a party did not appear because of a mistake.
The first Consent Judgment was not set aside due to the fact that the Defendant knew that he had been noted in default in 2002 but took no steps to set aside the noting in default for eight and a half years. The Consent Judgment was obtained in 2006. The Court found that the second Consent Judgment was not properly obtained. The Defendant had filed a Statement of Defence. Counsel for the Defendant had subsequently filed a Notice of Ceasing to Act which set out the address of the Defendant as “unknown”. Neither the Plaintiff, nor the Administrator, took any steps to attempt to locate the Defendant. As a result, the Defendant did not receive notice of the Application for the Consent Judgment and it was a mistake by the Plaintiff and the Administrator not to either serve the Defendant or bring an Application for Substitutional Service or an Order dispensing with service. The Court stated that “two parties cannot simply consent to a Judgment striking out another party’s Statement of Defence”. The second Consent Judgment was set aside pursuant to Rule 9.15.View CanLII Details