Set Aside Rules Pro Tip: Admit if you’re out of town Anderson v. Novhaus Inc. 2024 ABKB 95

In Anderson v. Novhaus Inc. 2024 ABKB 95 the plaintiff sued the builder of sea can homes, Novhaus after the plaintiff paid in advance for a sea can home but failed to receive it.

The plaintiff obtained a summary judgment after Novhaus failed to attend court. In turn, Novhaus applied to set aside the summary judgment on the basis that they were not present. Justice Mah denied Novhaus’ application.

The owner of Novhaus had argued that Rule 9.15 applied to his situation because he was unable to attend the conference due to his location in a remote region of Africa with limited technological resources.

After the plaintiffs' application for summary judgment was served, Novhaus initiated communication with their counsel to request a postponement. Novhaus's justification was that he was attending to the care of his ailing mother and had been unable to secure alternative legal representation. The counsel for the plaintiffs was amenable to a brief adjournment but declined to provide consent for Novhaus's request for a longer adjournment. Novhaus's presence in Cameroon remained undisclosed.

Justice Mah observed that Rule 9.15 is designed to rectify the injustice done to a non-attending party who would have been present but for a "interfering" event or circumstance, or to address unintentional or accidental non-attendance that occurs "by accident or mistake." Justice Mah determined that Novhaus's justifications did not amount to error or inadvertence. Rather, they stemmed from his own choice to remain silent and from neglecting to notify the plaintiffs of his precise location and anticipated date of return. Novhaus was able to communicate with plaintiffs' counsel despite having limited internet access, and he had more than two months to arrange for new counsel to handle an adjournment request or appear in his place.

In reaching his final decision Justice Mah noted that "If one is going to ask the other side for indulgences, one has to be forthcoming about the reasons why ... [and] being unavailable for the Court date on which the other side insists on proceeding behooves the unavailable party to do something."