Simon's Megalomaniacal Legal Resources

Appeals - Motion Set-Asides - The Problems

This is a discussion piece of the problems I have interpreting the law around set asides of appellate motions.

First off (procedurally at least), appellate motions rely on trial court motion procedure, which is set out in R37 - although "with necessary modifications [R61.16(1)]. In turn, in R37 set asides of motions are dealt with in R37.14, but - similar to the general order set-aside authority in R59.06 - R37.14 is limited as to the substantive grounds upon which it may be based (ie. ex parte motions, inadvertent non-attendence and registrar's order).

Then, in the Courts of Justice Act (CJA) itself, which - as the parent statute to the Rules of Civil Procedure (RCP) is necessarily more authoritative - provides for additional [ie. beyond R37.14] appellate motion set aside authorities [in CJA 21(5) Divisional Ct and CJA 7(5) Court of Appeal]. These CJA provisions do not provide for any specific grounds, so you would think that R37.14's grounds (above) - not being excepted from R61.16(1)'s adoption of R37 - would apply.

But the case law doesn't do that, it adopts wholly common law grounds [see the cases at the links for CJA 7(5) and 21(5)]. This may make some sense as the appellate adoption of R37 for motions is done "with necessary modifications", but it is odd that R37.14 is not more fully addressed in R61.16(1), even to the point of exclusion - as otherwise it seems that the R37.14 adoption is meaningless, a major statutory interpretation faux pas.

It gets worse. The involved CJA provisions [CJA 7(5) and 21(5)] authorize a panel to set aside an appellate motion order of only a single judge. This makes initial sense, as when you get into the appellate courts you can either have a single judge or a panel make the motion order than you wish to set aside.

But, what about setting aside a panel set aside? Here R61.16(6.1) ['No Review of Panel’s Order'] provides that:

R61.16(6.1)
Subject to rules 37.14 and 59.06, an order or decision of a panel of an appellate court may not be set aside or varied under these rules.

An unavoidable concern on first reading R61.16(6.1) is that it is not limited to motion orders, despite it being located in sub-rule R61.16 ['Motions in Appellate Court']. That's another problem for another day, but for now let's just assume that it only applies to motions, which makes the most sense.

The prohibition against panel set asides alone is quite sensible, but still allowing R37.14 and R59.06 ["Subject to rules 37.14 and 59.06, ..."] to apply to panel set asides seems bizarre. Are we to tolerate the re-starting of the 'set aside cycle' all over again? Is it an feature of set-asides that - unlike appeals - they must remain open into perpetuity?

At this point all I can do is refer you to the case doctrine on the main page (back one). Frankly, I haven't seen any cases which grapple with these 'problems' yet, especially the R61.16(6.1) cases, which seem to duck the issue vigorously.