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Judges - Seizing Jurisdiction. The Russian Federation v. Luxtona Limited
In The Russian Federation v. Luxtona Limited (Div Ct, 2021) the Divisional Court allowed an interlocutory order made by a first application judge to be reversed by a second, who was seized of the issue:[9] I conclude that generally an application judge is not bound by evidentiary rulings of a prior application judge. While it is to be hoped that prior rulings can be used so that matters are not re-litigated when circumstances force a change of judge, there is but one application judge, in the same way that there is but one trial judge for a trial, and a judge at first instance generally may change his interlocutory rulings at any point before he is functus officio.
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Issue #1: Was the Court Below Bound by the Prior Interlocutory Ruling?
[14] I need go no further than the decision of the Court of Appeal written by Paciocco J.A. in R. v. R.V. to explain why the application judge had the jurisdiction to revisit the prior interlocutory ruling.[4] That is because previous application judge could have reconsidered the ruling himself, at any point up to the time he became functus officio for the entire application.[5] “The power of a trial judge to reconsider earlier rulings made within the trial they are presiding over is clear.”[6] The Court of Appeal lists a number of circumstances that could lead a trial judge to change a ruling, including: “A trial judge may also correct a decision that they discover was made in error.”[7]
[15] There is no difference in status between a trial judge and an application judge. Where there is a change in application judge, his discretion to revisit past rulings is coextensive with that of a trial judge in an analogous position.
[16] The appellant pointed to situations described by Paciocco J.A. in R. v. R.V. and argued that the circumstances in this case do not fit within those examples – no new evidence has been discovered and there has been no change of circumstances respecting the record or the law. This argument fails to address the clear statement by Paciocco J.A. that a trial judge may correct an erroneous decision that he has made. That principle is not qualified, nor should it be, except that the trial judge should, of course, exercise this discretion “in the interests of justice”.
[17] The application judge was satisfied that the prior ruling was in error. He concluded that the error would involve the parties assembling and the court adjudicating upon a substantial additional record that should not be considered on a review of the tribunal’s interim award. Thus, he concluded that it was in the interests of justice to revisit the ruling so that the parties and the court would not waste further time and money assembling a potentially extensive record that was not admissible. On this logic this was a sound basis for the application judge to revisit the earlier ruling and he had the jurisdiction to enter into this inquiry and to make the ruling that he did. . McMurter v. McMurter
In McMurter v. McMurter (Ont CA, 2020) the Court of Appeal approves of a judge's discretion to seize themselves of a proceeding (ie. ordering that future attendences be held before that same judge):[31] Finally, I observe that, particularly in family law proceedings, where, as here, parties may appear in court repeatedly, judicial continuity is recognized as promoting both efficiency and fairness.
[32] For example, in D.G. v. A.F., 2015 ONCA 290, 333 O.A.C. 5, this court rejected the appellant’s assertion that the motion judge erred in seizing herself of ongoing issues. At para. 13, this court noted that exercising inherent jurisdiction to seize herself of a case was the best means of ensuring that cases are dealt with justly. Further, at para. 15, this court stated that “the frequent resort to the court in high conflict cases would otherwise rapidly consume too many resources as judge after judge is forced to learn the details of an ever-burgeoning file.”
[33] Here, the motion judge’s knowledge of the history of the matter not only saved judicial resources, it contributed to her ability to determine the appropriate outcome at both the March, April, and October 2018 hearings. She understood the basis for the security order and how it was calculated. Although adverse credibility findings may conceivably give rise to a reasonable apprehension of bias in the specific circumstances of a particular case, I am satisfied that the motion judge’s 2016 change motion findings created no such apprehension in relation to the 2018 security order motions. As the motion judge observed, a recusal motion was not the appropriate forum in which to litigate the propriety of the 2016 security order.
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