An Order Granted…But Not Sought

Sometimes it actually happens.  Sometimes the Court, of its own volition will grant an Order for relief that has not been sought by a party to a matter.

Procedurally, if a litigant wishes to have the Court grant them relief, they are required to file an Application with the Court supported by evidence, which is typically in the form of a sworn Affidavit.  A foundation of our legal system is that any litigant should know the case against them and have the opportunity to properly respond.  This is because to grant an order against a litigant who has not been given notice or an opportunity to respond to an application is, in essence, to permit legal ambush.  This is most often seen when a party brings an application to the Court without giving the other side notice of the application, what is called an ex parte application.

The Courts have written extensively in respect of ex parte applications, noting that such applications should only be granted in extraordinary circumstances in which giving notice the other party might bring significant prejudice to the applicant.  These types of applications  are often brought in situations where one party is attempting to preserve property from an improper transfer or sale – the argument being that notice to a litigant of an application for an order to seize, preserve, or freeze property will give the responding litigant the opportunity to transfer, sell, or dispose of the property before the application is even heard.  The Courts have also been very clear that once an ex parte order is granted, it is crucial that the affected party have the right to have the Order against them reviewed forthwith – this is so that that party will have the opportunity to respond to the initial application, present their own evidence, and move to set the Order aside.

This opportunity to respond to an Order that has been granted without notice is so important that it has been enshrined in the Alberta Rules of Court at Rule 9.15(1)(a), giving litigants the right to apply to set aside Orders granted without notice, and giving the Court discretion to set aside or discharge such orders.

However, when the Court grants an Order that neither party has sought, such an action is highly irregular from a procedural perspective as it goes beyond even an ex parte order where one party has actually brought an application and presented evidence (albeit without notice to the other).  In the case where the Court grants an Order without such Order being sought, neither party has applied for the relief in question.

In circumstances like this, the Court of Appeal in Alberta has variously held that, in general, it is inappropriate to decide an issue that has not been expressly raised in an application by a litigant, and that a judge has no jurisdiction to impose relief which no party has sought, and of which no notice has been given.  Such reasoning has been predicated on the recognition that, in the absence of a proper application and evidence, the Court would likely be lacking the information needed to render a fully informed decision, and the result of such an Order could be unfairness to the party prejudicially affected by such an Order.

While the Court of Appeal has historically been consistent in recognizing and upholding this reasoning, the fact is that to revoke these types of Orders, litigants have been put to the time and expense of having to Appeal such Orders to the Court of Appeal.

However, in the recent case of Wruth v. Wilson, 2018 ABCA 181, the Court of Appeal has given litigants an alternate and simpler means by which to challenge Orders that are granted in the absence of an application by either party.

In Wruth v Wilson, the parties cohabited for a significant period of time and had three children together.  Wruth was the sole shareholder of a very successful trucking company and earned approximately $2 million per year.  Upon separation, Wilson brought an application against Wruth for significant child and spousal support.  Wilson also worked for Wruth at his company, and in order to fund her litigation, she withdrew $73,000 from a bank account belonging to Wruth’s company.  In return, Wruth’s company sued Wilson on the grounds of theft.

Wilson brought an application to have the theft claim consolidated with her application for child and spousal support.  Upon hearing Wilson’s Application for consolidation, the Chambers Justice did not order consolidation, but on his own volition, in the absence of any application by either party, Ordered that the claim against Wilson alleging theft be stayed until the child and spousal support application was heard.

As has been traditional with other cases where the Court has granted Orders that neither party has applied for, Wruth appealed this decision to the Court of Appeal.

Upon hearing this appeal the Court acknowledged the issue of the Order being granted in the absence of an application by either party, but the Court also suggested that an Appeal of the Order was not necessary.  Rather, the Court instead held that an Order granted by a Judge in the absence of any application for such an Order is essentially the same thing as an Order being granted in the absence of Notice, thereby drawing a parallel between Orders of this type and those granted on an ex parte basis.

As a result, the Court positively held that litigants who are subject to an Order granted by the Court in the absence of an Application may avail themselves of the procedure under Rule 9.15(1)(a) of the Alberta Rules of Court.  As a result, litigants who find themselves in this position are not subject to the necessity of the time and expense of bringing an appeal of the Order in question, but have the right to simply bring an Application before the originating Court to have the Order set aside – a procedure that the Court of Appeal has noted as being “a speedier, more economic route by way of a fresh application to the Court making the original order.”

In the end, the decision of Wruth v. Wilson does not change the substantive law that litigants have the right to know the case against them and be able to respond and offer evidence in respect of that, but it does create a procedural shift in which litigants have a simpler and streamlined option to challenge Orders that have issued from a Court in the absence of any application for same.

The lawyers at Mincher Koeman LLP have significant experience in dealing with ex parte and without notice Orders.  If you need smart and effective help with your family law matter, we are the firm for you.  Give us a call at (403) 910-3000 or contact us at reception@mincherkoeman.com