graesser j

9.12: Correcting mistakes or errors
9.13: Re-opening case
9.14: Further or other order after judgment or order entered

Case Summary

The Applicants were creditors of the Defendants, Reid-Built Homes Ltd. and affiliated companies who had been placed into receivership. One of the Applicants, the City of Edmonton (“Edmonton”) applied to vary charging provisions in a Receivership Order. The Receiver objected to the Application, arguing that, among other things Edmonton was out of time to make the Application, as it was not made during the initial Receivership Order hearing, or during the comeback Application. Justice Graesser considered Rules 9.12, 9.13 and 9.14 which provide that a Court may correct a mistake or error in a Judgment or Order arising from an accident, slip or omission, or may vary the Judgment or Order if the Court is satisfied there is good reason to do so.

Graesser J. considered the leading jurisprudence, and determined that the Court had the authority to revisit the Receivership Order in appropriate circumstances. Graesser J. also noted that there is authority which provides that comeback Applications should be made in a timely manner, as parties may take positions in reliance on the original Order and it might be unfair to vary the provisions of a Receivership Order to the detriment of a relying party. Graesser J. noted, however, that Edmonton was seeking clarification on whether its priority position was affected by the Receivership Order, but not necessarily looking for a variation of the Order. It was likely that there would be further Applications to vary the Receivership Order as the matter progressed, and, there was no apparent prejudice to the Receiver. As such, Justice Graesser considered Edmonton’s Application on its merits and determined that Edmonton’s security should not be subordinate to the Receiver’s charge and borrowing power.

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