WILDEMAN v WILDEMAN, 2015 ABQB 195
1.2: Purpose and intention of these rules
9.12: Correcting mistakes or errors
9.13: Re-opening case
The Applicant in this Family Law matter applied to vary a previous Decision of Schutz J., alleging that Schutz J. had erred in calculating the Applicant’s Guideline income. Schutz J. noted that Judges are provided with a narrow scope to correct mistakes or errors in a Judgment, as set out in Rule 9.12. However, Superior Court Justices also possess the inherent jurisdiction to vary Decisions prior to entry. Justice Schutz noted that this inherent jurisdiction was relied on prior to the current Rules coming into force. The inherent jurisdiction is now expressly set out in Rule 9.13, and Her Ladyship noted that this Rule gives the Court legislated authority to vary decisions before entry. Further, the Rule provides broad authority to the Court to vary a decision in accordance with Rule 1.2 and the Foundational Rules.
Schutz J. stated that the correct test for varying a Decision under Rule 9.13 was set out in Lewis Estates Communities Inc v Brownlee LLP, 2013 ABQB 731 (CanLII), where the Court noted:
[T]he evidence and law put before the Court ought to make an applicant’s case so compelling that the likelihood that it has correctly identified an error is very high. This is, I note, essentially the test for obtaining summary judgment.
With respect to admissibility of new evidence under Rule 9.13, Justice Schutz noted that Rule 9.13(b) expressly allows the Court to hear more evidence and change its Decision if there is a good reason to do so. However, the Court noted that Rule 9.13 is not a vehicle for seeking reconsideration of a Judgment and that an unsuccessful litigant’s remedy in such a case lies only in an Appeal. The Court stated that generally the test for admissibility under Rule 9.13 is that the Applicant must show that the new evidence was not available at the time of the hearing and that the new evidence would be likely to change the result. After reviewing the new evidence, Schutz J. determined that this was an appropriate case to vary Her Ladyship’s earlier Decision.View CanLII Details