Case commented on: Montes v. Al-Shiraida, 2011 ABQB 54
Manuel and Teresa Montes were injured in a motor vehicle accident. They each filed a statement of claim alleging that the accident was caused either by Al-Shiraida or by an unknown person operating a motor vehicle owned by Al-Shiraida. The Montes and the Administrator of the Motor Vehicles Accident Claims Act obtained consent judgments against Al-Shiraida. Al-Shiraida made two applications to set aside each of the consent judgments.
Rule 9.16 of the New Rules provides that an application under 9.15 to set aside a judgment “must be decided by the judge or master who granted the original judgment unless the Court otherwise orders.” In this case, to avoid any further delay and as the original judge was unlikely to have any independent recollection of the two consent judgments granted more than four years ago, Mr. Justice Eric F. Macklin found it unnecessary that the original judge hear the matter.
Rule 9.15 of the New Rules allows a court to set aside a judgment made without notice to one of the parties or following a hearing at which a party does not appear because of a mistake. Justice Macklin applied the New Rules to the application to set aside. In determining whether or not to set aside the consent judgments, however, he considered (at para. 20) whether, under the former rules, the consent judgments were obtained properly.
With respect to the consent judgment obtained by Manuel Montes, Al-Shiraida was on notice that he had been found in default and took no steps to set aside the default judgment and enter a statement of defence. Under former Rule 144, after being noted in default and with no order setting aside the notice of default, Al -Shiraida was not entitled to notice of any subsequent proceedings in the action. Accordingly, Justice Macklin found (at para. 26) there was nothing improper in the procedure followed to obtain the consent judgment and it, therefore, found no basis to set aside the judgment under Rule 9.15.
With respect to the consent judgment obtained by Teresa Montes, Al-Shiraida filed a valid statement of defence to the action commenced by Teresa Montes. Accordingly, pursuant to former Rule 144, Al-Shiraida was entitled to notice of any actions or proceedings being taken in that action. Justice Macklin found (at para. 33) that Al-Shiraida did not receive notice of the application and it was a mistake for Teresa Montes and the Administrator of the Motor Vehicle Accidents Claim Act to agree to a consent judgment without serving Al-Shiraida or bringing an application to substitutionally serve him or to dispense with service. He therefore set aside the consent judgment obtained by Teresa Montes.
