Van Gemert v Bogdanov, 2014 ABQB 794

Court of Queen ’ s Bench of Alberta Citation: Van Gemert v Bogdanov, 2014 ABQB 794 Date: 20141223 Docket: FL03 27558 Registry: Edmonton Between: Terrance Alan Van Gemert Plaintiff - and - Dubravca Bogdanov Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] These reasons arise out of a lengthy process of settling minutes of an Order that was granted by me arising out of an application in this matter on July 2, 2014.

I granted an Order with respect to this July 2, 2014 matter on October 8, 2014, which Order was then objected to by Mr. Van Gemert, the self-represented Plaintiff. Counsel for the Defendant, and the Plaintiff have now completed the terms of a new consent Order with respect to the July 2, 2014 hearing. However, Counsel expresses serious concern as to whether or not this Court has any further jurisdiction to grant the present consent Order agreed to by the parties given the previous Order granted October 8, 2014.

[ 2 ] Shortly after the October 8, 2014 Order was issued, the Plaintiff Mr. Van Gemert applied to have the Order amended under Rule 9.15, which Rule reads as follows: 9.15(1) On application, the Court may set aside, vary or discharge a judgment or an order, whether final or interlocutory, that was made (

a) without notice to one or more affected persons, or (

b) following a trial or hearing at which an affected person did not appear because of an accident or mistake or because of insufficient notice of the trial or hearing.

(2) Unless the Court otherwise orders, the application must be made within 20 days after the earlier of (

a) the service of the judgment or order on the applicant, and (

b) the date the judgment or order first came to the applicant’s attention.

(3) The Court may, on any terms the Court considers just, (

a) permit a defence to be filed by a party who has been noted in default, (

b) set aside, vary or discharge a judgment granted upon application against a defendant who was noted in default, or whose statement of defence was struck out under rule 3.37, or (

c) set aside, vary or discharge a judgment entered in default of defence by the plaintiff for the recovery of property under rule 3.38, or for a debt or liquidated demand under rule 3.39.

(4) The Court may set aside, vary or discharge an interlocutory order (

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. [ 3 ] I agree with Counsel for the Defendant that Rule 9.15 does not apply in this particular matter as Mr. Van Gemert was present when the application was heard , and he argued the application, so that he cannot comply with Rule 9.15(1). [ 4 ] However there are the “corrections” rules found in Rule 9.12, 9.13 and 9.14 which read as follows: 9.12 On application, the Court may correct a mistake or error in a judgment or order arising from an accident, slip or omission. 9.13 At any time before a judgment or order is entered, the Court may (

a) vary the judgment or order, or (

b) on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it. 9.14 On application, the Court may, after a judgment or order has been entered, make any further or other order that is required, if (

a) doing so does not require the original judgment or order to be varied, and (

b) the further or other order is needed to provide a remedy to which a party is entitled in connection with the judgment or order. [ 5 ] Rule 9.13 does not apply as the Order in this matter from October has already been entered, however, I believe that both Rules 9.12 and 9.14 are applicable. [ 6 ] The problem with the October 8 th , 2014 Order I granted is that Mr. Van Gemert is concerned that in that Order Bell West was not expressly named as an entity that was to produce certain employment records.

Counsel for the Defendant argues that Bell West was absorbed by Bell Canada and therefore would now be part of Bell Canada, with the result that any request for the employment records for the period June 2007 to July 2009 would have to be provided by Bell Canada as Bell West no longer exists. [ 7 ] The October Order I granted had stated in part at paragraph 3 that Bell Canada was to forthwith provide to the Defendant all information from June 2007 to July 2011 with respect to employment whether the location of those accounts were with Bell Canada or London Life/Great West Life or elsewhere. [ 8 ] It is also argued by Counsel that the “or elsewhere” includes all entities including Bell West, so that all information produced if the Order was to be complied with would be covered. [ 9 ] Furthermore, Mr.

Gemert is also concerned that Manulife was not explicitly mentioned along with Great West Life and London Life, but Counsel once again argues that the term “or elsewhere” would implicitly include Manulife as a required information source. Counsel advises that his client, Ms. Bogdanov, has advised that Manulife was bought out by both Great West Life and London Life, such that if the Order is to be complied with, the information will cover all of Great West Life, London Life, and Manulife, even if all that information is ultimately provided by or through Manulife.

[ 10 ] The Plaintiff also points out that the October Order I granted mistakenly referred to Mr. Hinton as Counsel for the Plaintiff, when it is he that is the Plaintiff. [ 11 ] I conclude that on this application by the Plaintiff, Mr. Van Gemert, that the Court is able to correct any mistake or error in a judgment arising from what I conclude was clearly an accident, slip or omission.

I conclude that the matters complained of constitute an “accident, slip or omission” pursuant to Rule 9.12. [ 12 ] Furthermore or in the alternative, I conclude that Rule 9.14 applies in that the further or other Order that I am now signing is required to provide a remedy to which a party is entitled to in connection with the original Order, and in doing so also does not require the original Order to be varied substantively.

Therefore I believe that Rule 9.14 can also be invoked. [ 13 ] As for the serious concerns that counsel has as to whether or not this Court still retains any jurisdiction notwithstanding my application of Rule 9.12 and 9.14, I further rely on the majority reasoning in our Court of Appeal’s recent decision Mazepa v Embree , 2014 ABCA 438 . In Mazepa the majority on the Court of Appeal panel stated in paragraph 10 that orders of a Superior Court of Record are never nullities even though they should not have been granted, may be based on procedure irregularities, and they may be undermined by a reviewable error.

It is also noteworthy that the third member of that Court of Appeal panel concurred in the result, but for different reasons not applicable to the present matter before me. [ 14 ] Accordingly the attached Order, marked as Appendix A, will be directed and issued in this matter. Heard on the July 2, 2014, 14 th day of November, 2014 and the 21 st day of November, 2014. Dated at the City of Edmonton, Alberta this 23 rd day of December, 2014. Donald Lee J.C.Q.B.A. Appearances: Terrance Alan Van Gemert Self-Represented Litigant John F. Hinton for the Defendant APPENDIX A