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Appeal - Set-Aside of Appellate Panel Orders [R61.16(6.1)]. Bowen v. JC Clark Ltd.
In Bowen v. JC Clark Ltd. (Ont CA, 2023) the Court of Appeal considered, but denied a two-pronged R59.06 set aside motion on the basis that the issues raised (costs) were properly the subject of appeal, which here [under CJA 133] required the court's leave to appeal:[2] The appellants now bring a motion to set aside, amend, or vary this court’s order regarding trial costs and seek an order that trial costs of $160,000 be awarded to them. In support of the motion, the appellants rely on rules 59.06(1) and (2)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
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[7] Pursuant to rule 61.16(6.1), “[s]ubject 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.”
[8] This court’s authority under rule 59.06 is limited, and will be exercised “sparingly” and only “where it is clearly in the interests of justice”: Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840, at para. 6.
[9] Rule 59.06(1) is not applicable in the circumstances of this motion. The motion does not raise an issue of an accidental slip or omission or seek an amendment on a particular on which the court did not adjudicate: Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 512, at paras. 7, 9. In their Notice of Appeal and their appeal factum, the appellants sought trial costs. This court adjudicated on trial costs. There was neither an accidental slip or omission nor a failure to adjudicate.
[10] With respect to rule 59.06(2), the appellants rely on subrule (d), which permits a party to bring a motion in a proceeding to “obtain other relief than that originally awarded” (emphasis added). Rule 59.06 cannot be read as being so broad as to apply to any request by a moving party for a different order than that made by the court. If that were sufficient to invoke rule 59.06(2)(d), finality of judgments would be illusory. The appellants are not seeking relief other than that originally awarded. The nature of the relief they seek is the same as what the court ordered – costs. What the appellants challenge is to whom the costs are payable. This is not relief other than that originally awarded. Rather, the appellants are seeking relief that this court considered and declined to grant: Render, at para. 8.
[11] The substance of the appellants’ motion is a challenge to the appropriateness of this court’s discretionary order with respect to trial costs, the procedural fairness of the manner in which this court made its order regarding trial costs, and the adequacy of the court’s reasons for the order in relation to trial costs. That relief is appropriately sought by seeking leave to appeal to the Supreme Court of Canada: Mullings v. Robertson, 2020 ONCA 369, at paras. 4 and 6. . Liu v. Qiu
In Liu v. Qiu (Ont CA, 2022) the Court of Appeal considers the meaning of R61.16(6.1), which limits set aside of an appellate panel order to motions under R37.14 and R59.06:[2] The moving party now moves under rules 37.14 and 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order varying the decision of this court and dismissing the appeal. Under rule 61.16(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.”
[3] Rule 37.14 has no application to this case. It applies only to an order by a registrar, or an order made on motion without notice, or against a party who did not receive sufficient notice, or who did not appear on a motion due to a mistake.
[4] Rule 59.06(1) applies where an order contains an accidental slip or omission or requires amendment on a particular on which the court did not adjudicate. The moving party submits that the court erred by basing its decision on a misreading of the record. He refers to passages from the evidence of the moving party and Mr. Yang, which he argues suggest that their interpretation of their deal was that once the house was sold, they would split not only the profit on the sale, but the entire sale proceeds (minus the construction costs) including the original capital investment. The moving party made the same submission on the appeal. . Mujagic v. Kamps
In Mujagic v. Kamps (Ont CA, 2015) the Court of Appeal considers the meaning of R61.16(6.1), which limits set aside of an appellate panel order to motions under R37.14 and R59.06:[6] Counsel for the respondent has, however, referred the court to rule 61.16(6.1). That rule, brought into force in July 2014 (see O. Reg. 43/14, ss. 19, 21), applies to motions in the Court of Appeal. It reads:61.16(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. [7] The use of the phrase "order or decision" is instructive and renders the taking out of an order irrelevant to the power to reconsider a decision governed by rule 61.16. The inclusion of the word "decision" reflects the practical reality that orders are often not taken out when motions are dismissed in the Court of Appeal.
[8] As rule 61.16(6.1) applies to this motion, the moving parties must bring themselves within rules 37.14 or 59.06 for this court to have jurisdiction to set aside or vary its decision refusing leave to appeal. Rule 37.14 has no application in the circumstances of this case. The moving parties do, however, rely on rule 59.06 and specifically rule 59.06(2)(a), which provides:59.06(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
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may make a motion in the proceeding for the relief claimed. [9] Counsel for the moving parties submits that the change in the jurisprudence effected by Westerhof amounts to a "fact arising" after the decision refusing leave to appeal was made. I cannot accept that submission. The distinction between fact and law is well established. Facts come from evidence, including new testimony and exhibits. Law comes from statute books and case law. The law is applied to the facts to produce a result. Rule 59.06(2)(a), by its plain meaning, speaks to "facts arising or discovered" and not to jurisprudential changes. New facts, like all facts, are found in evidence, not in the statute books or case law.
[10] There is relatively little case law on this exact issue, perhaps because the language of the rule is so clear. The limited [page719] case law is against the moving parties. In Trainor v. Canada (Customs and Revenue Agency), [2011] O.J. No. 5741, 2011 ONCA 794, this court noted, at para. 3, that a change in jurisprudence is not a new fact for the purposes of rule 59.06. The Divisional Court took the same position when the matter went back to that court: see Trainor v. Canada, [2012] O.J. No. 2665, 2012 ONSC 3450 (Div. Ct.), at para. 5. The Federal Court of Appeal, considering a somewhat differently worded rule, came to the same conclusion in Metro Can Construction Ltd. v. Canada, [2001] F.C.J. No. 1075, 2001 FCA 227, 203 D.L.R. (4th) 741. Justice Rothstein observed, at para. 4, that interpreting the phrase "a matter that arose or was discovered" (the language of the operative Federal Court rule) to include changes in the law "would create unacceptable uncertainty for litigants and the public who must be satisfied that, once a judgment is rendered, it is final".
[11] I agree with counsel for the respondent's submission that rule 61.16(6.1) applies to a motion to reconsider this court's decision refusing leave to appeal. The moving parties cannot bring themselves within either rule 37.14 or rule 59.06. This court therefore has no jurisdiction to set aside or vary its prior decision refusing leave to appeal. . Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP
In Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP (Ont CA, 2017) the Court of Appeal considers the meaning of R61.16(6.1), which limits set aside of an appellate panel order to motions under R37.14 and R59.06:[4] In support of its motion, Trillium relies on rr. 1.04, 37.14(6), 59.06 and 61.16 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 61.16(6.1) states: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. [5] Rule 61.16(6.1) applies to the decision that Trillium seeks to vary. Thus, in order for this court to grant the relief sought, Trillium must bring itself within rr. 37.14 or 59.06.
[6] In our view, Trillium is unable to do so. Rule 37.14 has no application to this case. Rule 59.06 permits a party to bring a motion for relief other than that initially awarded. However, this court’s authority under r. 59.06 to reconsider a decision is limited and will be exercised sparingly and only where it is clearly in the interests of justice to do so: see Hoang v. Mann Engineering Ltd., 2015 ONCA 838; First Elgin Mills Development Inc. v. Romandale Farms Ltd., 2015 ONCA 54, 381 D.L.R. (4th) 114; Mujagic v. Kamps, 2015 ONCA 360, 125 O.R. (3d) 715. . Mullings v. Robertson
In Mullings v. Robertson (Ont CA, 2020) the Court of Appeal considers the meaning of R61.16(6.1), which limits set aside of an appellate panel order to motions under R37.14 and R59.06:[2] Rule 61.16(6.1) refers to the two rules the applicant invokes. It provides that a decision of a panel of this court may only be varied or set aside pursuant to rr. 37.14 or 59.06.
[3] For its part, r. 37.14 has no application here. This is not a case involving an order obtained on motion without notice, a failure to appear on a motion, or an order of the registrar: r. 37.14(1).
[4] As for the court’s authority to reconsider a decision under r. 59.06, that authority is “limited and will be exercised sparingly and only where it is clearly in the interests of justice to do so”: Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840, at para. 6., leave to appeal dismissed, [2017] S.C.C.A. No. 366. This court will set aside a decision and rehear a case on its merits only in rare circumstances: see First Elgin Mills Development Inc. v. Romandale Farms Limited, 2015 ONCA 54, 381 D.L.R. (4th) 114, at para. 7. . Hoang v. Mann Engineering Ltd.
In Hoang v. Mann Engineering Ltd. (Ont CA, 2021) the Court of Appeal considers the meaning of R61.16(6.1), which limits set aside of an appellate panel order to motions under R37.14 and R59.06:[6] Rule 61.16(6.1) provides that this court can set aside a prior decision. The circumstances in which it will be appropriate to do so are rare: see Trillium Motor Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840, leave to appeal refused, [2017] S.C.C.A. No. 366, at para. 6; Owen Cornelius Mullings v. Jacqueline Alice Dian Robertson, 2020 ONCA 369, leave to appeal refused, [2020] S.C.C.A. No. 393, at paras. 4-5.
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