RICHTER v CHEMERINSKI, 2014 ABQB 322
9.14: Further or other order after judgment or order entered
9.16: By whom applications are to be decided
10.52: Declaration of civil contempt
By way of a Consent Order endorsed by Sanderman J., the Respondent was to construct a roadway across the Applicant’s property to provide access to a subdivided parcel of land for farming operations. A dispute arose over the specifications and location of the proposed roadway and the Applicant brought three Applications for Contempt against the Respondent for failure to comply with the Consent Order.
Justice Veit noted that the standard of proof to establish civil contempt is only on a balance of probabilities, but held that the Consent Order was not sufficiently clear, precise and unambiguous to ground an Application for Contempt. The Consent Order lacked sufficient clarity with respect to the location and specifications of the roadway and there was conflicting Affidavit evidence on whether the parties had reached an agreement.
The Respondent cross-applied under Rule 9.14 to vary the Consent Order to approve his proposal of the roadway. Veit J. dismissed the Cross-Application and emphasized that Rule 9.14 could only be invoked to correct a slip or a failure to reflect the intention of the Court when it granted the Order. The Respondent’s proposal would have involved a more substantive change to the Consent Order. In any event, Rule 9.16 requires the Judge or Master who granted the original Order to vary it under Rule 9.14. Therefore, such an Application should be made to Sanderman J.View CanLII Details