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Civil Litigation Dicta - Orders - Varying. SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation
In SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation (Ont CA, 2024) the Ontario Court of Appeal dismissed a contractual appeal, here considering a judge's authority to change their judgment before a formal order is taken out:(ii) The Trial Judge Properly Changed His Unentered Judgment
[68] BNY next argues that the trial judge lacked authority to change his judgment to find that it breached the Mellon Trust Agreement by sharing data with CIBC Mellon. I disagree. The trial judge had broad discretion to reconsider and change his judgment before its entry. He properly exercised that discretion to correct his initial conclusion that CIBC Mellon breached its separate contract with SS&C, which overlooked SS&C’s actual breach of contract claim against BNY and was an outcome-determinative error.
[69] Trial courts sometimes make mistakes in their orders.[3] While parties can appeal these mistakes and appellate courts can correct them, trial courts also have a time-limited opportunity, between making an order and entering it, to change it to rectify those mistakes. Montague v. Bank of Nova Scotia, following longstanding precedent, affirmed that courts have “very broad discretion” to make such changes to “better serve the ends of justice,” either on their own initiative or on a party’s request: (2004), 2004 CanLII 27211 (ON CA), 69 O.R. (3d) 87 (C.A.), at paras. 34, 36, leave to appeal refused, [2004] S.C.C.A. No. 79, citing Holmes Foundry Ltd. v. Village of Point Edward, 1963 CanLII 197 (ON CA), [1963] 2 O.R. 404 (C.A.), at p. 407. This discretion remains broad until the order is entered. Then, trial courts can only amend it if authorized by statute, to correct a drafting slip-up or error in expressing their manifest intention, or if the matter has not been heard on its merits: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, [2021] 2 S.C.R. 785, at para. 33; Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at p. 860.
[70] Montague permits trial judges to change their orders if they overlook outcome-determinative matters: at paras. 21, 38. By focusing on whether trial judges have overlooked a point of law, argument, or fact, this test discourages litigants from rearguing points the trial judge considered and rejected or raising new arguments or facts that they could have raised earlier: Meridian Credit Union Ltd. v. Baig, 2016 ONCA 942, 6 C.P.C. (8th) 33, at para. 8, leave to appeal refused, [2016] S.C.C.A. No. 173; Mujagic v. Kamps, 2015 ONCA 360, 125 O.R. (3d) 715, at para. 13, leave to appeal refused, [2015] S.C.C.A. No. 330. Likewise, because the overlooked point must be outcome-determinative, this test deters litigants from focusing on lesser errors that would not change the result: First Elgin Mills Developments Inc. v. Romandale Farms Ltd., 2015 ONCA 54, 381 D.L.R. (4th) 114, at para. 9, leave to appeal refused, [2014] S.C.C.A. No. 442.
[71] Montague also requires trial courts to clearly explain changes to orders, especially important changes: at para. 40; see also 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, 371 D.L.R. (4th) 643, at para. 72. If trial courts do so, then their discretionary decision to change their orders is owed deference absent a legal error, a palpable and overriding factual error, or an unreasonable exercise of discretion: Montague, at para. 39; Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48, 475 D.L.R. (4th) 274, at para. 41.
[72] Montague has stood the test of time. It accounts for the reality that busy trial judges sometimes make mistakes and overlook outcome-determinative points by giving them an opportunity to correct those mistakes before their orders are entered. I agree with the foundational English precedent Montague followed, Harrison v. Harrison, that denying judges this opportunity is “unworkable”: [1955] 1 Ch. 260 (C.A.), at p. 276; see Montague, at para. 34. Doing so would undermine access to justice and the justice system’s efficient operation by requiring needless appeals and consequent delays and legal costs to remedy overlooked points that trial judges could promptly correct: Gore Mutual Insurance Co. v. 1443249 Ontario Ltd. (2004), 2004 CanLII 27736 (ON SC), 70 O.R. (3d) 404 (S.C.), at para. 8, per Karakatsanis J. (as she then was), aff’d, (2004), 2004 CanLII 43772 (ON CA), 75 O.R. (3d) 477 (C.A.). At the same time, focusing the inquiry on whether trial judges have overlooked an outcome-determinative matter appropriately accounts for litigants’ interest in certainty and finality: ATU, Local 615 v. Saskatoon (City), 2021 SKCA 93, 86 C.L.R.B.R. (3d) 1, at para. 83. Finally, Montague’s clear reasons requirement permits meaningful appellate review and helps negate any suspicions that judges are making changes for improper reasons: Montague, at para. 40; Buckley, at para. 73. This respects the principle that discretionary decisions require adequate reasons: Penate v. Martoglio, 2024 ONCA 166, at para. 21.
[73] BNY argues that a stricter and narrower standard applies. It submits that courts can only change unentered orders to fix technical errors or avoid a miscarriage of justice. In its view, technical errors are restricted to errors that are either mathematical or obvious and inadvertent, and miscarriages of justices require threats to the integrity of the litigation process such as failing to review a party’s materials. It contends that outcome-determinative legal or factual errors do not meet this high threshold, which it maintains this court adopted in FS Partnership/UPI Energy FS v. Mr. Refuel Inc., 2022 ONCA 612.
[74] I disagree because BNY’s argument clashes with precedent and unnecessarily seeks to replace a test that has long worked well with an unworkable stricter standard. BNY attempts, in effect, to transplant the strict restrictions on changing entered orders into the test for changing unentered ones. This contravenes the Supreme Court of Canada’s direction that those strict restrictions only apply after orders are entered: Canadian Broadcasting Corp., at para. 35; Chandler, at p. 860.[4] It contradicts Montague’s holding that courts have wide discretion to amend their orders before entry to further justice: at paras. 34, 36. It is also inconsistent with Montague’s affirmance, without finding a threat to the integrity of the litigation process, of the trial judge’s decision in that case to change her judgment to account for outcome-determinative legal and factual points that she overlooked: at paras. 21, 34, 38. Moreover, the obviousness test it introduces is unworkable and inconsistent with the rule of law, which disfavours requiring parties to accept erroneous decisions simply because the error is not obvious enough: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 40-42. Finally, this stricter standard is unnecessary because Ontario trial courts can be trusted to distinguish meritorious reconsideration motions from meritless ones, which adverse cost consequences will help deter.
[75] BNY’s argument that FS Partnership established a stricter test is wrong. Rather, consistent with Montague’s deferential standard of review, FS Partnership simply deferred to the motion judge’s decision not to change an order: at paras. 26-27. FS Partnership, following the Divisional Court’s Brown decision, also referenced a “miscarriage of justice” test: FS Partnership, at para. 26, citing Brown, at para. 20. But because Brown recognized Montague’s binding force and followed its clear reasons rule (at paras. 20, 24), I read this reference to a “miscarriage of justice” test as paraphrasing Montague’s flexible “better serve the ends of justice” test rather than adopting a stricter standard like the undermine the integrity of the litigation process or obviousness tests that BNY proposes: Montague, at para. 36. Thus, the trial court decisions adopting those stricter tests that BNY cites are no longer good law on this point: see, e.g., Dnaagdawenmag Binnoojiiyag Child and Family Services v. V.S. et al, 2021 ONSC 5562, at paras. 26-28, 36, and Scott, Pichelli & Easter Ltd. v. Dupont Developments Ltd. et al., 2019 ONSC 6789, 59 C.P.C. (8th) 187, at para. 10-13, 20, rev’d, 2021 ONSC 6579, 157 O.R. (3d) 772 (Div. Ct.), aff’d, 2022 ONCA 757, 475 D.L.R. (4th) 364.
[76] FS Partnership’s comment that courts’ authority to change an order is “narrow” also does not change Montague’s test. This merely references Brown’s statement that re-argument is inappropriate, subject to “narrow” exceptions: FS Partnership, at para. 27; Brown, at para. 19. This is consistent with Montague, which also does not favour re-argument but permits reconsideration.
[77] Applying Montague’s test, I would defer to the trial judge’s well-reasoned discretionary decision to change his judgment before its entry. As he explained, he overlooked SS&C’s actual claim that BNY breached the Mellon Trust Agreement by sharing data with CIBC Mellon and instead adjudicated an unpled, never-advanced claim that CIBC Mellon breached the CIBC Mellon Agreement. This mistake was outcome-determinative because it impacted whether BNY or CIBC Mellon bears liability and that liability’s contractual basis. The trial judge reasonably determined that, to correct his mistake, he had to address SS&C’s actual claim that BNY breached the Mellon Trust Agreement. His decision to do so furthered justice as Montague requires by ensuring that the parties could know which entity was liable under which contract before the damages trial.
[78] I reject BNY’s arguments that the trial judge lacked discretion to change his judgment. BNY’s submission that the change did not remedy a technical error or a threat to the integrity of the litigation process fails because Montague requires neither. SS&C also properly sought reconsideration to address its overlooked claim rather than seeking re-argument as BNY wrongly contends. . Rathod v. Chijindu
In Rathod v. Chijindu (Ont CA, 2024) the Ontario Court of Appeal discusses when a costs order is due, even when not specified:[12] Accordingly, I move to the first alternative remedy, which is to require the responding parties on this motion to pay the outstanding costs orders made by Roberts J.A.
[13] The responding parties say that I have no jurisdiction to make this order because it would be akin to varying Roberts J.A.’s costs orders. As she did not place a time limit on paying the costs, the responding parties suggest that I cannot now do so.
[14] I disagree.
[15] The responding parties’ submission implies that a costs order is in the nature of a suggestion that you should pay what you are ordered to pay when you feel that the time is right. Nothing could be further from the reality of the situation. With or without a deadline, when a costs order is made, it is a valid from the time it is made and must be paid, not at a future date convenient to the debtor, but right away and not later than 30 days from the date of the order. This accords with r. 57.03(1):57.03(1) On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,
(a) fix the costs of the motion and order them to be paid within 30 days; or
(b) in an exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid within 30 days after assessment. [16] While the Rule seems to suggest that the judge shall impose the 30-day deadline, an order that is silent on the issue is to be interpreted as having imposed that deadline: Sears v. Sears (2005), 2005 CanLII 5863 (ON SCDC), 195 O.A.C. 376 (Div. Ct.), at para 18; Bank of Nova Scotia v. Gillespie, 2008 CanLII 31415 (Ont. S.C.). Clearly, the presumption is that if an order is silent on the time within which it is to be paid, it is payable within 30 days. The order speaks from the moment it is made and the costs must be paid.
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[19] By making such an order, I am not amending Roberts J.A.’s order, I am simply ordering that the responding parties comply with her outstanding costs orders before their appeal is heard.
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