Rule Details
LAVOIE v LUKIW
Rules Discussed
- Rule 9.15 Setting aside, varying and discharging judgments and orders
- Rule 9.16 By whom applications are to be decided
Case Summary
The Appellant appealed a Summary Judgment granted after he failed to attend the Application Hearing, arguing he did not receive proper notice.
The Court determined the Appeal was premature. Rule 9.15(1) allows an Applicant to request that a Judgment be set aside, varied, or discharged if it was made without notice or if the affected person failed to appear because of the insufficient notice. However, absent exceptional circumstances, Appeals are discouraged when an available remedy exists in the Court below.
Rule 9.16 directs that the Application under Rule 9.15 ordinarily be heard by the Judge who made the disputed Order, who is best positioned to assess the notice record and any fresh evidence. Although the twenty-day time limit set out in Rule 9.15(2) had expired, the Court below retained discretion to extend that time if appropriate.
The Appeal was dismissed.