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Civil Litigation - Orders - R59.06 Set-Asides - General

. Grogan v Ontario College of Teachers

In Grogan v Ontario College of Teachers (Div Court, 2023) the Divisional Court faced a R59.06 set aside motion with respect to a several years old Divisional Court appeal (a dismissal) of a revocation of a teacher's certificate under the Education Act. The case was unique as the applicant sought to introduce fresh evidence from one of the-then adjudicators of the Discipline Committee of the Ontario College of Teachers who ordered the revocation, such adjudicator resigning in the course of that adjudication. This present R30.06 motion ["Where Affidavit Incomplete or Privilege Improperly Claimed"] was in aid of this set aside motion, and sought to determine "whether this court should order the College to produce notes created by Ms. Ferenczy while she was a member of the Discipline Committee adjudicating the case".

In this quote the court considers that the underlying R59.06 set aside motion is grounded in fresh evidence ["Rule 59.06(2)(a) “on the ground of fraud or of facts arising or discovered after it was made[.]”"], and holds that the applicant's reliance on evidence to be produced in the discovery process was improper. Essentially the court is saying that the applicant should have such evidence before they make the R30.06 motion:
[13] In addition, I note that Ms. Grogan seeks the production of documents in the context of her motion to set aside the Decision under Rule 59.06(2)(a) “on the ground of fraud or of facts arising or discovered after it was made[.]” The very basis for the Applicant’s motion to set aside is facts that arose or were discovered after the decision was made. A motion under Rule 59.06(2)(a) must thus be grounded in facts, which the moving party bears the burden of proving. In bringing a motion to set aside, the moving party is representing that they have sufficient evidence to support that the outcome would have been different had that evidence been available. A motion to set aside under Rule 59.06(2)(a) is not an opportunity to seek discovery of facts that would enable a party to set aside an order. Such an application of the rule would significantly undermine the principle of the finality of decisions, as further discussed below.
. Kim v. McIntosh

In Kim v. McIntosh (Ont CA, 2023) the Court of Appeal noted, here in a family law case, that the court could adjourn an appeal pending the bringing of a set aside ["change"] motion [this under Family Court Rule 25(19)]:
[29] In March 2022, Rouleau J.A. heard a motion brought by the appellant to de-list the appeal so that he could bring a proceeding under r. 25(19) of the Family Law Rules, O. Reg. 114/99 (“FLRs”) in the trial court to set aside the decision of Steele J. Rouleau J.A. dismissed the motion (M53227, M53271), holding that the order of Steele J. was a final order, appealable to the Court of Appeal.

[30] We agree with the reasons of Rouleau J.A. The order of Steele J. clearly determined the substantive rights in the proceedings and stands as a final order. The appellant relies on Gray v. Gray, 2017 ONCA 100, 137 O.R. (3d) 65. That case confirms the final nature of the order in issue here: see Gray, at para. 34. Gray also stands for the proposition that this court may, in the exercise of its discretion, adjourn an appeal to allow a party to bring a motion in the trial court under r. 25(19) of the FLRs. Gray does not suggest that this court must delay pending appeals whenever a party indicates a desire to bring a motion under r. 25(19).

[31] Rule 25(19) does allow for a motion in the trial court to “change” an order. That authority can be exercised only in certain situations. Section 25(19)(d) would appear to be the only provision applicable here. It provides
The court may on motion, change an order that,

(d) was made without notice
. 1758704 Ontario Inc. v. Priest

In 1758704 Ontario Inc. v. Priest (Ont CA, 2022) the Court of Appeal considered a motion to re-open a decided appeal case:
[4] Five months later, in February 2022, the same respondents brought this motion seeking to re-argue the appeal. They raise issues the court already said would not be entertained. For that reason alone, the motion must fail. In any event, the respondents have not come close to the high hurdle required to cause the court to reopen the appeal: see Meridian Credit Union Ltd. v. Baig, 2016 ONCA 942, at para. 7; RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP, 2020 ONCA 182, at para. 41. Nor did they establish an “accidental slip or omission” of the court’s order to satisfy r. 59.06: Baig, at para. 6.
. Mullings v. Robertson

In Mullings v. Robertson (Ont CA, 2020) the Court of Appeal considered it's authority to reconsider it's own appeal order, here under R59.06:
[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.

[5] In support of his application, the applicant argues that the appeal decision contains numerous “errors”. In each case he submits that this court “failed to consider that the trial judge erred” in making findings by arriving at decisions contrary to the preponderance of evidence or based on misapprehensions of the evidence. The misapprehensions of the evidence he identifies amount to no more than the failure by the trial judge to make the findings and orders the applicant advocates. In substance, the grounds the applicant offers in support of his request that this court’s decision be set aside and a new hearing be held amount to expressions of disagreement with the correctness of the appeal decision. Although made in the context of a criminal appeal, Charron J.A.’s comments in R. v. H. (E.), 1997 CanLII 418 (ON CA), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp. 101-102, leave to appeal refused, [1997] S.C.C.A. No. 256, are apt:
[T]o the extent that an application to reopen an appeal is a challenge to the correctness of a decision … the application to reopen is an attempt to vest the Court of Appeal with a jurisdiction which is reserved to the Supreme Court of Canada. … The power to further review the matter no longer belongs to this court.
. Render v. ThyssenKrupp Elevator (Canada) Limited

In Render v. ThyssenKrupp Elevator (Canada) Limited (Ont CA, 2022) the Court of Appeal considers a R59.06 set aside motion:
[4] The moving party has now filed a factum that picks out a number of places in the trial transcript where a number of employees and their approximate salaries are referred to, and from those, now asks the court to infer that the respondent had a $2.5 million payroll.

[5] Rule 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides:
59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

(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;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,

may make a motion in the proceeding for the relief claimed.
[6] The moving party’s materials do not specify which sub-rule of r. 59.06 he relies on. In any event, he has not brought himself within either r. 59.06(1) or r. 59.06(2).

[7] Rule 59.06(1) refers to an accidental slip or omission. There was no accidental slip or omission in this case. Had the moving party wished to rely on the passages he now identifies, he could have done so in his factum on the appeal or in oral argument. He did not do so. It is not the role of the court to scour the record for evidence not relied on by the parties.

[8] Rule 59.06(2) also does not apply to this case. The moving party has not pointed to any fraud or facts arising or discovered after the release of this court’s decision. Rule 59.06(2)(d) similarly has no application. The appellant is not asking for “other relief than that originally awarded”. He is asking for the court to grant relief that it considered and declined to grant.

[9] A motion to reconsider a decision is not an opportunity to reargue the appeal or to “recast or revisit issues that [the party] has already argued”: McDowell v. Barker, [2014] O.J. No. 2363 (C.A.), at paras. 9-11; Hoang v. Mann Engineering Ltd., 2015 ONCA 838, at paras. 13-15.
. Liu v. Qiu

In Liu v. Qiu (Ont CA, 2022) the Court of Appeal considered a R59.06 set aside motion in an effort to set aside an appeal. The motion was dismissed on the grounds that R59.06 required "an order contains an accidental slip or omission or requires amendment on a particular on which the court did not adjudicate":
[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.


[7] There was no error, accidental slip or omission. Rule 59.06 has no application. ...


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