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Review - Re-opening
COMMENT
'Re-openings' are a broad and understudied common law doctrine, which applies to most court procedures - be they civil, criminal and other. This is because they focus on the 'pending' (ie. pre-formal) order made, and - if granted - essentially operate to set aside this pending order, in a similar fashion to that that a codified Rule-governed set aside of a formal order operates [eg. RCP R2.01(1) 'Effect of Non-Compliance', R19.08(1) 'Setting Aside Default Judgment', and several more].
In terms of availability, 're-openings' are also very similar to rule order set-asides - with a typical criteria/test being that of "only in 'exceptional circumstances' where 'its exercise is clearly called for'" [R. v. R.G. (Ont CA, 2023) (criminal), para 52] or "court will re-open an appeal sparingly and only where it is clearly in the interests of justice" [Bajouco v. Green (Ont CA, 2017), para 24] (civil). Perhaps the most germane of these 'test' cases is that of 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (SCC, 2001), para 63 - where the test for re-opening is contrasted favourable with that for fresh evidence [a joint motion for which they should perhaps prudently be brought with].
A primary feature of re-openings is that, being common law, they are only available until the court is functus officio, that is until a formal order is taken out. This distinguishes them again from rule set-asides [these typically under RCP 59.06(2)] , which can operate only after a formal order is 'taken out': Meridian Credit Union Ltd. v. Baig, 2016 ONCA 942 (Ont CA, 2022), paras 6-7.
I found a counter-intuitive aspect of 're-openings' was that (as they also operate on 'orders') they are available wrt appeal orders, again as long as no formal order has yet been taken out. In that sense they can operate as a simpler, de facto 'appeal to an appeal' - albeit at a much higher standard of review.
CASES
Review - Re-Opening - Trial/Hearing
Review - Re-Opening - Sagaz Cases
Review - Re-Opening - Appeal
Review - Re-Opening - Criminal (+)
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