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Civil Litigation - Orders - R59.06 - Best By Original Judge

. Mehedi v. 2057161 Ontario Inc. (Job Success)

In Mehedi v. 2057161 Ontario Inc. (Job Success) (Ont CA, 2014) the Court of Appeal considered when (and where, and who before) a court, on being presented with fresh evidence unavailable at trial (and in this case even after appeals had been dismissed), should re-open a trial:

[16] In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII), 2001 SCC 59, [2001] 2 S.C.R. 983, the Supreme Court indicated that the discretion to reopen the trial is the trial judge’s. The trial judge is in the best position to decide whether fairness dictates that the trial be reopened. The trial judge should exercise his or her discretion to reopen the trial “sparingly and with the greatest care” so that “fraud and abuse of the [c]ourt’s processes” do not result: Sagaz, at para. 61.

[17] In Sagaz, however, the trial judge was asked to reopen the trial before the appeal, whereas in Mr. Mehedi’s case, the appeal has already been heard and determined.

[18] In Aristocrat v. Aristocrat 2004 CanLII 32256 (ON CA), (2004), 73 O.R. (3d) 275 (C.A.), the moving party’s appeal to the Court of Appeal and his application for leave to appeal to the Supreme Court of Canada had been dismissed, when subsequently he claimed he discovered fresh evidence showing that his wife and daughter had induced the Court of Appeal to dismiss his appeal by reason of “false, fabricated, fraudulent and perjured evidence”. He brought a motion in the Court of Appeal pursuant to rule 59.06(2)(a) to set aside the order dismissing his appeal. The matter was eventually heard by a panel of the court, which said at para. 9:

Based upon his oral submissions and his response to questions from the court, it is apparent that Mr. Aristocrat’s main concern is to re-open and set aside the original judgment of [the trial judge] as a judgment obtained by fraud. In order to accomplish this, he has moved under rule 59.06(2)(a). The Court of Appeal has no jurisdiction to hear such a motion. Such motions should be brought in the action before a judge of the Superior Court.

[19] The court in Aristocrat referred to an earlier case, R. v. Moura 2003 CanLII 46485 (ON CA), (2003), 172 C.C.C. (3d) 340 (Ont. C.A.), in which Morden J.A. held that a motion to set aside an order of the Superior Court, affirmed on appeal, on the basis of newly discovered evidence of fraud should be brought in the Superior Court.

[20] The rationale of rule 59.06(2)(a) continues to apply even though an appeal has been determined. An appeal merely concludes there is no reversible error at trial. The rule allows an order to be set aside or varied, not because of any mistake in the proceedings, but because it has become apparent that the decision was wrong due to fraud or other facts discovered after it was made.

[21] While a motion under rule 59.06(2) must be brought in the Superior Court, it need not be brought before the trial judge. This is made clear by rule 37.14(4), which provides:

A motion under…any…rule to set aside, vary or amend an order[1] of a judge may be made,

(a) to the judge who made it, at any place; or

(b) to any other judge, at a place determined in accordance with rule 37.03….

[22] Rule 37.03 merely requires that the motion be brought in the county where the proceeding was commenced or to which it has been transferred.

[23] Case law applying rule 59.06(2) confirms that rule 59.06(2) motions “may be made to the trial [j]udge or to a [j]udge in motions Court”: Lac Des Mille Lacs First Nation v. Viherjoki (1996), 50 C.P.C. (3d) 94 (Ont. C.J. (Gen. Div.)), at para. 11.

[24] Canada v. Granitile Inc. (2008), 2008 CanLII 63568 (ON SC), 302 D.L.R. (4th) 40 (Ont. S.C.) is an example of a case where, under rule 59.06(2), a judge of the Superior Court set aside the judgment of another trial judge. Molloy J., the trial judge, found in favour of the plaintiffs in their action against Canada. Canada brought a rule 59.06(2) motion and Lederer J. held a trial on the issue of whether Molloy J.’s judgment in the plaintiffs’ favour should be set aside because of the plaintiffs’ fraud. Lederer J. ultimately concluded that Molloy J.’s judgment must be set aside.

[25] In Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 CanLII 5454 (ON CA), 165 D.L.R. (4th) 268 (Ont. C.A.), Scott J. granted judgment by approving a settlement on behalf of a minor plaintiff. Leitch J., another judge of the Ontario Court (General Division), set aside the judgment on the basis of new evidence under rule 59.06(2). On appeal, the Court of Appeal concluded that Leitch J. erred in doing so because the new evidence at issue was available at the time of the initial judgment. The Court of Appeal did not hold that only Scott J. could set aside her own judgment under rule 59.06(2).

[26] While the law does not require the trial judge whose judgment is at issue to hear the rule 59.06(2) motion, it is preferable for the trial judge to do so. The trial judge is already familiar with all of the evidence at trial, and is well-suited to expeditiously determine whether the alleged fraud or the new evidence requires the trial judgment to be set aside.

[27] In a recent chambers decision, Janjua v. Khan, 2014 ONCA 5, the appellant, who had a rule 59.06(2) motion regarding the trial judgment pending in the Superior Court, also sought leave to appeal the trial judgment in the Court of Appeal. Lauwers J.A. dismissed the leave application to allow the rule 59.06(2) motion to proceed. He held, at para. 11:

…the preferable procedure in these circumstances is to allow the process before the Superior Court to unfold. It would perhaps be especially appropriate for [the trial judge] to hear the [rule 59.06(2)] motion to set aside her judgment on the basis of the fresh evidence. She would be in a superior position to contextualize the fresh evidence and to direct the trial of an issue if so advised.

[28] In A.H. Al-Sagar & Brothers Engineering Project Co. v. Al-Jabouri (1989), 46 C.P.C. (2d) 69 (Ont. H.C.), Sutherland J., while clear that a motion under rule 59.06(2) may be brought before any judge in motions court in the ordinary way, seems to suggest that the motion should be brought before the trial judge where the findings of the trial judge are being called into question and the new evidence must be considered along with the evidence that was before the trial judge

[29] In this case, Mr. Mehedi seeks to undermine the credibility findings made by the trial judge with the new evidence. However, as the trial judge has already declined to hear the motion, Mr. Mehedi must bring his motion before another judge in motions court in the ordinary way.