VMH v JH, 2020 ABCA 474


9.15: Setting aside, varying and discharging judgments and orders
14.2: Application of general rules

Case Summary

The Applicant applied to vary an Order for advance Costs. Previously, Khullar J.A. had made an advance Costs Order requiring the Respondent to pay $20,000 to a lawyer retained by the Applicant, and to be used toward legal fees and disbursements. The Applicant applied to increase the $20,000 amount and appended an email from a lawyer saying that, “your costs on this appeal may exceed [$20,000] and you will need to provide us with a credit card to secure a further retainer if we need it”.

The Court cited Rules 9.15(4) and 14.2(1) in noting that a Court may set aside, vary or discharge an interlocutory order for three reasons: (a) because information arose or was discovered after the Order was made; (b) with the agreement of every party; or (c) on other grounds that the Court considers just.

Here, Schutz J.A. declined to vary the original $20,000 advance Costs Order, noting that the lawyer’s email indicated only that $20,000 may not be enough to cover the Costs of the Appeal, without any detail as to why that may be so. The Court determined that, at this juncture, the evidence adduced was not sufficient to justify varying Khullar J.A.’s Order.

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