Simon's Megalomaniacal Legal Resources

Federal Court - Reconsiderations

. Oleynik v. Canada (Attorney General)

In Oleynik v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the vexed issue of effect of the filing of a reconsideration and the running of the time limit for filing appeals. While this issue occurs primarily in administrative proceedings, in this court situation the Federal Court of Appeal holds that the filing of a reconsideration does not delay the timeline for filing an appeal:

[31] The Attorney General argues that Dr. Oleynik’s Rule 397 motion before the Federal Court did not relieve him of the obligation to timely file a notice of appeal for the First Decision, citing Pharmascience Inc. v. Canada (Minister of Health), 2003 FCA 333 and Sivakumar v. Canada (Minister of Citizenship and Immigration) (1998), 150 F.T.R. 299, 81 A.C.W.S. (3d) 215 (FCTD). As a result, Dr. Oleynik’s appeal of the First Decision is too late.

[32] I agree.

[33] In my view, bringing a Rule 399 motion similarly does not affect the timeline for instituting an appeal. Had Dr. Oleynik filed an appeal of the First Decision, the Federal Court nonetheless would have had the discretion to entertain his reconsideration motion: Étienne v. Canada (1993), 164 N.R. 318, 45 A.C.W.S. (3d) 813 at 318 (N.R.) (FCA); Musqueam Indian Band v. Canada (Governor in Council), 2004 FC 931 at para. 22; In re motion for reconsideration of the Court’s Order in Peshdary v. AGC (2018), 2020 FC 137 at para. 12.

. Oleynik v. Canada (Attorney General)

In Oleynik v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal contrasts the role of a reconsideration [under R397] and an appeal:

[29] I agree with the Federal Court that “Rule 397 is not meant to be an appeal in disguise, allowing [Dr. Oleynik] to re-argue an issue a second time in the hope that the Court will change its mind” (Second Decision at para. 5). A claim that the Federal Court applied the wrong legal test in the First Decision is a subject matter for appeal, not a reconsideration motion. ...

. Sharma v. Canada (Revenue Agency)

In Sharma v. Canada (Revenue Agency) (Fed CA, 2020) the Federal Court of Appeal reviews the status of reconsiderations under Rule 397 of the Federal Court Rules:

[1] Mr. Sharma appeals from a decision of the Federal Court, dated November 1, 2018, dismissing his motion to reconsider an Order dated August 28, 2018. In that Order, Justice Bell denied his request for an extension of time to apply for judicial review of a decision by the CRA.

[2] It is well established that a motion for reconsideration pursuant to Rule 397 of the Federal Courts Rules, SOR/98-106, calls for the exercise of judicial discretion: Ruffolo v. Fraser Valley Institution for Women, 2016 FCA 91, at paras. 7-8. Accordingly, absent an error on a question of law or an extricable legal principle, this Court will only intervene with the exercise of that discretion if a palpable and overriding error can be demonstrated. No such error has been made out in the case at bar.

[3] Rule 397 provides that a party may request that the Federal Court reconsider the terms of an order on the grounds that the order does not accord with any reasons given for it, or that a matter that should have been dealt with has been overlooked or accidentally omitted. It is clearly not meant to be an appeal in disguise, allowing a litigant to re-argue an issue a second time, in the hope that the Court will change its mind: Bell Helicopters Textron Canada Limitée v. Eurocopter, 2013 FCA 261, at para. 15.