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Civil Litigation - Orders - Re-openings versus R59.06 Set-Asides Re-Openings
'Re-openings' are just what they sound like, a 're-opening' of a civil legal proceeding (an action or an application, including judicial reviews) after it is normally concluded. Re-openings have a complex but limited litigation role, being only available before the formal order is 'taken out' (signed and entered), after which your closest similar option is a statutory 'set-aside' motion (typically a R59.06 motion). What are colloquially called 'set-asides' are more accurately motions seeking to 'amend, set aside or vary' orders, and the criteria that govern them are restricted by the Rules of Civil Procedure. Re-openings are more remedially-broad than set-asides - they can be thought of as you convincing the judge to 'change their mind', which they can only do without a formal order yet in place to 'tie them down'.
The case law has held that the trial judge is in best position to decide a re-opening motion, largely because the trial judge is in the 'best position' to decide the motion issue due to their familiarity with the file. However, another good reason why
a judge from the original court level is required is that re-openings aren't available after an order is 'signed and entered' (ie. formally 'taken-out'). But it is a necessary step in an appeal proceeding that a formal order be taken out at the lower court/tribunal being appealed from [R61.10(1)(c)], so it is hard to imagine situations where re-opening is still available once an appeal has been commenced.
The test for re-opening is similar to the 'fresh evidence' test, which is also covered in it's own section in this Civil Appeals guide. This similarity makes sense, as the effect of a successful fresh evidence motion is usually to allow the moving party to 're-open' their otherwise finished litigation.
Perhaps the best statement of the distinction between a re-opening and a set-aside may be this [Meridian Credit Union Ltd. v. Baig (Ont CA, 2016), para 6-7]:[6] The first observation that we would make is that Baig’s reliance on r. 59.06 of the Rules of Civil Procedure is misplaced. Rule 59.06(1) addresses the jurisdiction of the court to amend an “order” where it contains “an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate”. Rule 59.06(2) allows a party to move for the court to modify or set aside an order under particular conditions; to suspend the operation of an order; to carry an order into operation; or to obtain relief other than that originally awarded. All of these grounds for re-opening an appeal concern orders, whereas Baig alleges errors in this court’s reasons; no order has yet been taken out.
[7] Nevertheless, generally speaking, there is no jurisdictional impediment to this court reconsidering its decision when no order has been taken out and entered: Mujagic v. Kamps, 2015 ONCA 360, 125 O.R. (3d) 715, at para. 5. However, a party seeking to re-open an appeal after the appeal decision has been rendered faces “a high hurdle”: Chuang v. Toyota Canada Inc., 2016 ONCA 852, at para. 7. The court will re-open an appeal prior to the entering of the order “sparingly and only where it is clearly in the interests of justice”: Mujagic, at para. 12. Baig has not raised the kind of “rare circumstance” where “the interests of justice” would require us to withdraw our reasons and rehear the case on the merits: Aviva Canada Inc. v. Pastore, 2012 ONCA 887, 300 O.A.C. 355, at para. 9. Cases on re-openings reflect the following themes:- re-opening appeals is about re-opening orders, not challenging reasons;
- when the appeal court is functus officio ('functus'), re-opening is barred;
- the taking-out of a formal order, insofar as it renders the court functus officio, is such a barring act;
- whether the case was decided on it's merits, which - if so - is an indicator that re-opening is barred;
- the substantive 'merits' of re-opening.
R59.06 Set-Asides
R59.06 set-asides are available both in first-level trial/hearing litigation (both actions and applications), and as well in appellate and judicial review (JRs) litigation (in Ontario appeals can be heard in any of the Superior Court, the Divisional Court and the Court of Appeal, and most JRs are heard in the Divisional Court).
The application of R59.06 set aside motions is broad because they apply to 'orders' (which includes by definition 'judgments'), which are what courts mainly 'do'. As well, the appellate jurisdiction for R59.06 set-asides is implicit in this provision: "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" [R61.16(6.1)].
A useful comment about R59.06 set asides is made in RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP (Ont CA, 2020), where the judge states: "... r.59.06 was to be used for the purpose of correcting errors in a judgment, not in the reasons,...". This point emphasizes that when an order is already signed and entered it is pretty much all the court cares about, and consequently when that happens the court's jurisdiction is more limited than before. Changing a formal order is restricted by the statutory provisions that authorize set-asides, much more than by a 're-opening' of a non-formal order like a verbal judge's ruling. This is evidence when you consider the R59.06 itself:Amending, Setting Aside or Varying Order
Amending
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.
Setting Aside or Varying
(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.
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