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Review - Re-Opening - Appeal
COMMENT
While I have positioned 're-openings' as another option when considering a review (appeal-JR) of a trial level proceeding, they are also available at the appeal level itself.
MORE CASES
Part 2
. Athanassiades v. Rogers Communications Canada Inc.
In Athanassiades v. Rogers Communications Canada Inc. (Ont CA, 2024) the Ontario Court of Appeal dismisses an action against Rogers Communication for "damages allegedly arising from Rogers’s failure to provide him with internet service and its subsequent collection attempts" under causes of action: "1) spoliation, 2) intentional infliction of mental suffering, 3) defamation and 4) breach of contract." The defendants responded with a summary judgment motion, which resulted in two causes of action being dismissed (which were final judgments) and an order for a 'mini-trial' (an interlocutory order, here under R20.04(2.2)). The plaintiff then appealed to the Court of Appeal before the mini-trial was conducted.
Interestingly, here the court treats a simple letter from the appellant - "requesting an opportunity to make further submissions" - as a request to 're-open' the case, despite it's lack of motion-formality:D. Request to Reopen Argument
[20] Following the hearing, counsel for the appellant wrote to the court, requesting an opportunity to make further submissions. The appellant was informed that the appeal has been decided and that the court would not receive further submissions.
[21] The basis for the appellant’s request for an opportunity to make further submissions was a suggestion that there was a lack of procedural fairness in the manner in which the court disposed of the appeal.
[22] I disagree. There was no procedural unfairness. The court notified counsel ahead of time regarding the concern over whether the appeal should be heard before the completion of the mini-trial. Counsel were given an opportunity to address this issue at the beginning of the hearing. Most importantly, the dismissal of this appeal does not preclude the appellant from appealing the disposition of the motion for summary judgment, including the dismissal of the claims for intentional infliction of mental distress and spoliation, at a later date once the motion for summary judgment is completed. There has been no prejudice to the appellant. The only issue decided by this court is the proper timing and procedure to be followed for appeal in this case. . R. v. Scott
In R. v. Scott (Ont CA, 2023) the Court of Appeal extensively considered an application to re-open an appeal, here in a criminal context:[2] An application to reopen an appeal raises two questions: whether this court has jurisdiction to reopen, and if it does, whether the jurisdiction should be exercised in the interests of justice.
[3] When an appeal has been dismissed and a formal order reflecting that disposition has been issued, the jurisdiction to reopen is narrow and exceptional. It has been described as being limited to cases that were not “heard on the merits” or that were not “heard and decided on the merits”. The issue raised in this case is whether this narrow and exceptional jurisdiction to reopen extends to an appeal that was heard on the merits but the panel deciding it allegedly failed to consider one of the arguments that was raised because it thought the argument had not been raised. The applicant argues that in such a situation the case has not been “decided on the merits”.
[4] For the reasons that follow, I conclude there is no jurisdiction to reopen an appeal in these circumstances. The phrases “heard on the merits” and “heard and decided on the merits” describe the same category of case – one in which the panel heard argument on the merits and decided the case based on its appreciation and assessment of the merits, as opposed to on a procedural or administrative ground unconnected to the merits. The correctness of the panel’s appreciation and assessment of the merits is irrelevant to the existence of jurisdiction to reopen.
[5] The applicant’s appeal was decided after it was argued on its merits. The panel dismissed the appeal based on its appreciation and assessment of the merits. A formal order was issued.[1] The correctness of the panel’s decision to dismiss the appeal, including the correctness of its appreciation of the arguments that were made, could thereafter be challenged only in the Supreme Court of Canada, not before this court. The applicant pursued an application for leave to appeal to the Supreme Court, unsuccessfully. Although that Court could have granted leave and remanded the matter back to this court, it did not.
[6] I would therefore dismiss the application to reopen for lack of jurisdiction. It is unnecessary to decide whether, if there were jurisdiction to reopen, it should be exercised, and nothing in these reasons should be taken to suggest that this would be an appropriate case to do so.
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[11] The applicant sought leave to appeal to the Supreme Court of Canada, arguing that this court had denied him procedural fairness by failing to consider whether the verdict was reasonable. As part of the request for leave to appeal, the applicant made a request under s. 43(1.1) of the Supreme Court Act, R.S.C. 1985, c. S-26, to remand the case to this court for a new hearing.
[12] On January 12, 2023, the application for leave to appeal was dismissed by the Supreme Court: R. v. Scott, [2022] S.C.C.A. No. 292.
[13] On May 5, 2023, this application to reopen was launched.
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[22] Second, whether a formal order has been issued recording the result of the appeal is important to the scope of the jurisdiction to reopen. It is therefore important to underscore that in this case, there is a formal order reflecting the panel’s decision.
[23] Where an appeal has been argued on its merits and a decision has been rendered, but a formal order has not been issued, the court is not functus. It remains seized of the matter and retains a limited power to reconsider and vary its decision until the formal order is issued: at R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707, at para. 29; R. v. Smithen-Davis, 2020 ONCA 759, 68 C.R. (7th) 75, at para. 34. Thus, even after argument on the merits, and reasons for decision addressing the merits, in the absence of a formal order disposing of the appeal the court may permit the appeal to be reopened if it is in the interests of justice to do so. Consideration will be given to the principle of finality, the risk of a miscarriage of justice, the cogency of the case for re-opening, the nature of the error or omission alleged to require re-opening; and the significance of the error to the disposition of the appeal: Smithen-Davis, at paras. 40-41, 45, and 56-7.
[24] The jurisdiction to reopen is much narrower, however, after a formal order has been issued: Smithen-Davis, at paras. 37, 43-44. Only if that narrow test for jurisdiction is met does one consider the “interests of justice”.
[25] Third, at issue in this case is reopening the appeal in the sense of setting aside the merits-based decision and permitting further argument. This is different from a situation where the court is asked to correct a slip or error in the formal order itself so that it accords with the intention of the court as reflected in its reasons. It is not suggested that the formal order in this case fails to reflect the panel’s decision on the appeal.
[26] Against that backdrop I turn to the applicable jurisdictional test.
(2) The Jurisdiction to Reopen After a Formal Order
[27] The source of the power to reopen plays a principal role in explaining its very limited scope. There is no statutory authority to reopen an appeal. “[A]ny jurisdiction in this respect must come within the scope of the appellate court’s inherent or ancillary powers”: R. v. H. (E.) (1997), 1997 CanLII 418 (ON CA), 33 O.R. (3d) 202 (C.A.) (“Rhingo”), at para. 30, leave to appeal refused, [1997] S.C.C.A. No. 256 and [1997] S.C.C.A. No. 274.
[28] At issue in Rhingo were two applications to reopen previously dismissed appeals. In one, the applicant had been represented by counsel on the appeal, but the representation was alleged to have been inadequate. In the other, the applicant was alleged to have been seriously prejudiced by having to argue his own appeal. In each case it was argued that the interests of justice, especially the need to prevent what might have been a miscarriage of justice, required the appeal to be reopened. In each case a formal order reflected the dismissal of the appeal.
[29] The applications were each dismissed for lack of jurisdiction.
[30] The court held in Rhingo that where an issued order has disposed of an appeal, the jurisdiction to reopen exists only in cases where the appeal was not heard on its merits: at pp. 219-220. As an example of that situation, the court referred to the dismissal of an appeal due to the non-attendance of counsel for the appellant at the hearing: at p. 215, citing The Queen v. Jacobs, 1970 CanLII 143 (SCC), [1971] S.C.R. 92.[3] The jurisdiction to reopen does not, however, extend to cases that were heard on their merits and finally disposed of by the issuance of an order, which was the case for the two applications at issue: at pp. 214, 220.
[31] Strong reasons of policy and principle drove these conclusions, including Parliament’s legislated choices as to avenues of recourse from court decisions in criminal matters and the public’s interest in finality of criminal proceedings. Charron J.A. (as she then was), speaking for the court, explained, at pp. 214-215:Once the appeal has been heard on its merits and finally disposed of by the issuance of an order, the statutory right of appeal has been exhausted. Any subsequent reopening of the same proceeding would involve the creation of further substantive or procedural rights, which only Parliament can enact.
There are sound policy reasons for so limiting the power to reopen appeals. An unlimited discretion to reopen appeals that have been heard on their merits is not only unjustifiable as an ancillary power of the court, but would do significant harm to the criminal justice system. Finality is an important goal of the criminal process. Statutory rights of appeal provide a carefully crafted exception to the general rule that trial decisions are final. By providing broad rights of appellate review in criminal matters, Parliament recognizes that fairness and justice interests require that the accused have a full opportunity to challenge a conviction even though that opportunity will prolong the process. Once those broad appellate rights have been exercised and the merits of the appeal decided, then absent an appeal to a higher court, finality concerns must become paramount. Those affected by the process should be entitled to rely on the appellate decision and conduct themselves accordingly. The appellate process cannot become or even appear to become a never-closing revolving door through which appellants come and go whenever they propose to argue a new ground of appeal.
Furthermore, to the extent that an application to reopen an appeal is a challenge to the correctness of a decision made by an earlier panel, as is the case in the Rhingo application, the application to reopen is an attempt to vest the Court of Appeal with a jurisdiction which is reserved to the Supreme Court of Canada. It is not the function of one panel of this court to sit on appeal from a decision of another panel. The power to further review the matter no longer belongs to this court. [Emphasis added.] [32] In applying Rhingo this court has sometimes used the formulation that jurisdiction to reopen an appeal after a formal order has been issued exists where the appeal “was not decided on its merits”, has “not been heard and decided on the merits”, or was not “argued and decided on the merits”: R. v. Dennis (2005), 2005 CanLII 44168 (ON CA), 208 O.A.C. 8 (C.A.), at para. 4; R. v. Perkins, 2017 ONCA 152, 347 C.C.C. (3d) 58, at para. 11; Smithen-Davis, at para. 37. These alternative formulations do not change the limited scope of the jurisdiction laid down by Rhingo.
[33] Under any formulation, jurisdiction to reopen after a formal order has been issued is precluded where there has been a hearing at which merit based arguments were made and a decision that is based on the panel’s appreciation and assessment of the merits of the appeal, as opposed to a basis independent of the merits. For example, an appeal that was heard on the merits but was then dismissed because the appellant abandoned it would not fall into the Rhingo formulation or any of the later formulations of when jurisdiction is precluded.
[34] But none of the formulations extend to establish jurisdiction for the applicant’s case. None suggest that there is jurisdiction to reopen an appeal when there is not a perfect, or correct, concordance between the merit-based arguments made at the hearing of the appeal and the merits-based decision. Nor do they suggest that there will be jurisdiction to reopen where the decision does not reveal a correct appreciation or assessment of the arguments.
[35] There is a limited jurisdiction to reopen after a formal order so that an appeal that was disposed of other than on the merits can be addressed on the merits (assuming it also is in the interests of justice to do so). This limited jurisdiction to reopen does not exist to allow a second, better or more correct look at the merits. As Rhingo makes clear, this court is without jurisdiction to reconsider the correctness of a decision of a panel after a hearing on the merits and the issuance of a formal order: “It is not the function of one panel of this court to sit on appeal from a decision of another panel. The power to further review the matter no longer belongs to this court”: at pp. 214-215. To hold that, after a final order, there is nevertheless a power to reopen an appeal because the original panel was incorrect in its appreciation or assessment of one of the arguments made on the appeal would create a jurisdiction to review for correctness where none exists.
[36] There is a distinction between getting the decision on the merits wrong and not making a decision on the merits at all. The applicant’s position collapses that distinction. This approach would have the effect of usurping the appellate jurisdiction of the Supreme Court.
E. CONCLUSION
[37] A party who believes a panel’s reasons show it misunderstood that an argument was made has remedies. They may, before a formal order is issued, ask for the appeal to be reopened in the interests of justice under the principles in Smithen-Davis. They may apply for leave to appeal to the Supreme Court of Canada.
[38] But the applicant, having not pursued the first avenue of recourse and having unsuccessfully pursued the second cannot, after the formal order has been issued, request reopening of the appeal. At that point, the interests of finality prevail even in the face of an argument that the original panel got it wrong. . Pomata Investment Corp. (Treasure Hill Homes) v. Yang
In Pomata Investment Corp. (Treasure Hill Homes) v. Yang (Ont CA, 2023) the Court of Appeal granted a motion to re-open an appeal:[8] Based on the circumstances surrounding the proceedings of this matter, we agree with the moving parties that the appeal should be re-opened.
[9] In Meridian Credit Union Limited v. Baig, 2016 ONCA 942, at para. 7, this court confirmed its jurisdiction to re-open an appeal where it is clearly in the interests of justice to do so:[G]enerally 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. [10] Although the bar to re-opening an appeal is high, it is clearly in the interests of justice to grant the moving parties the relief they seek. The moving parties had no intent to abandon their appeal, but through no fault of their own were not informed of their hearing date.
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[12] Moreover, this appeal was not heard and decided on its substantive merits but dismissed as abandoned. It is unlike the case in Baig, where the arguments made on the motion to re-open the appeal had already been advanced and considered on appeal. As such, allowing the motion to re-open the appeal would not result in unfairness to the responding party.
[13] Additionally, at the hearing of this motion, counsel for the responding party consented to reopening the appeal, subject to the condition that the appeal proceed on the existing record and that no new materials are filed for the appeal hearing. The moving parties agreed to this condition. . Ghasempoor v. ICapital Financial Services Corp.
In Ghasempoor v. ICapital Financial Services Corp. (Ont CA, 2023) the Court of Appeal considered an appeal court 'reconsideration', which appears to be the same as a 're-opening':[2] It is only in very exceptional cases that a panel of this court will revisit a decision already made: First Elgin Mills Developments Inc. v. Romandale Farms Limited, 2015 ONCA 54, 381 D.L.R. (4th) 114, at paras. 7 to 10. This is not one of those exceptional cases.
[3] The motion for reconsideration is therefore dismissed with costs to the responding party fixed at $500.00. . R. v. S.M.J.
In R. v. S.M.J. (Ont CA, 2023) the Court of Appeal considers the law of re-opening appeals, here in a criminal context:(1) The Test to Reopen an Appeal
[6] This court has jurisdiction to reopen an appeal that has not been decided on its merits. The test is whether “it is in the interests of justice” for the court to do so: R. v. Rhingo (1997), 1997 CanLII 418 (ON CA), 33 O.R. (3d) 202 (C.A.), leave to appeal refused, [1997] S.C.C.A. No. 274; R. v. Simmons, 2012 ONCA 94, 289 O.A.C. 39, at para. 15.
[7] The onus is on the applicant to prove that it would be in the best interests of the administration of justice to reopen his appeal. Several factors are relevant to this determination including: (1) the reason and circumstances that led to the dismissal of the appeal without a hearing on its merits; (2) the length of the delay before the applicant sought to reopen the appeal and the applicant’s explanation for the delay; (3) the merits of the proposed appeal; (4) the seriousness of the deprivation of liberty faced by the applicant; (5) the Crown’s position on the application; and (6) public confidence in the administration of justice: R. v. Henry, 2009 BCCA 12, 264 B.C.A.C. 244, at para. 13; Simmons, at paras. 16-17.
[8] The two main factors that the applicant asks this court to consider are his reasons for abandoning the appeal and the merits of the appeal. In our view, neither of the applicant’s arguments are persuasive and, as such, it is not in the interests of justice to reopen this abandoned appeal. . McGrath v. Joy
In McGrath v. Joy (Ont CA, 2023) the Court of Appeal considers it's 'reconsideration' (aka re-opening) jurisdiction and procedure, here at the Court of Appeal level:Jurisdiction to Reconsider
[11] As the moving party, Mr. Ramsundarsingh submits that this court has jurisdiction to reconsider its decision before a formal order is issued based on rr. 37.14(6) and 59.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. However, neither rule applies.
[12] Rule 37.14(6) has no application because it applies only to motions to set aside an order made by this court (or the Divisional Court). No order has yet been taken out.
[13] The moving party’s reliance on r. 59.06(2) is also misplaced. Rule 59.06(1) addresses the court’s power to amend 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”. Rule 59.06(2) allows a party to move to have an order set aside or varied, among other things. Again, however, no order has yet been taken out in this case.
[14] Nonetheless, this court has jurisdiction to reconsider its decision before a formal order has been taken out because the court is not functus officio. See, for example, Pastore v. Aviva Canada Inc., 2012 ONCA 887, 300 O.A.C. 355, at para. 9; Mujagic v. Kamps, 2015 ONCA 360, 125 O.R. (3d) 715, at para. 5, leave to appeal refused, [2015] S.C.C.A. No. 330; Meridian Credit Union Limited v. Baig, 2016 ONCA 942, at para. 7; and, First Elgin Mills Developments Inc. v. Romandale Farms Limited, 2015 ONCA 54, 381 D.L.R. (4th) 114, at para. 7.
The Test to be Met
[15] The party seeking to re-open an appeal after the appeal decision has been rendered faces a “high hurdle”: Meridian, at para. 7. The court will re-open an appeal prior to the entering of the order only in the rare circumstance where it is in the interests of justice to withdraw the reasons of the court and re-hear the case on the merits: First Elgin Mills, at para. 7, citing Pastore, at para. 9.
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Procedural Points
[18] Two procedural points are worthy of note.
[19] First, in the ordinary course, a motion to re-open an appeal is heard by the panel that heard the appeal. It is not a single judge motion. Thus, when bringing such a motion, counsel are well-advised to make clear in their materials that the motion is to be placed before the panel that heard the appeal. One method for achieving this is to direct the materials to the attention of the office of the court’s Executive Legal Officer.
[20] Second, in this court, a motion to re-open before an order has been taken out is generally heard in writing. Even if an oral hearing is requested, it is for the panel to determine whether that is necessary: Antonyuk v. Antonyuk, 2022 ONCA 145, at para. 3; Midland Resources Holding Limited v. Shtaif, 2018 ONCA 743, 81 B.L.R. (5th) 191, at para. 14, leave to appeal refused, [2018] S.C.C.A. No. 541. . R. v. Smithen-Davis
In R. v. Smithen-Davis (Ont CA, 2022) the Court of Appeal considers re-opening a criminal appeal:(i) Re-opening an Appeal
[31] In R. v. Hummel, 2003 YKCA 4, 182 B.C.A.C. 93, which also involved a conviction appeal on the merits and an order that had not yet been entered, the Yukon Court of Appeal described the re-opening of an appeal at para. 3 as “an extraordinary power to be exercised rarely”. In Strichen et al v. Stewart, 2005 ABCA 201, 367 A.R. 188, at para. 5, the Court of Appeal of Alberta stated that “the general test for leave to re-argue requires exceptional, special or unusual circumstances.” In the motion to quash, Watt J.A. described the circumstances in which a court may permit the re-opening of an appeal as being closely circumscribed. As he noted at para. 35, “[t]he core question is whether the applicant has established a clear and compelling case that a miscarriage of justice will likely occur absent re-opening.” He went on to discuss factors a court might consider in deciding whether to permit the re-opening of an appeal previously argued and decided on the merits:i. the principle of finality;
ii. the interests of justice including finality and the risk of a miscarriage of justice;
iii. whether the applicant has established a clear and compelling case to justify a re-opening;
iv. whether, in hearing and deciding the appeal on the merits, the court overlooked or misapprehended the evidence or an argument advanced by counsel; and
v. whether the error alleged concerns a significant aspect of the case. [Citations omitted.] [32] An application to re-open involves a tension between the finality principle, which promotes the integrity of decisions already made on the basis of the merits of an appeal and the risk of a miscarriage of justice absent a re-opening of the appeal. Charron J.A., as she then was, described the former in R. v. Rhingo (1997), 1997 CanLII 418 (ON CA), 33 O.R. (3d) 202 (C.A.), leave to appeal ref’d, [1997] S.C.C.A No. 274, at p. 214:There are sound policy reasons for so limiting the power to reopen appeals. An unlimited discretion to reopen appeals that have been heard on their merits is not only unjustifiable as an ancillary power of the court, but would do significant harm to the criminal justice system. Finality is an important goal of the criminal process. Statutory rights of appeal provide a carefully crafted exception to the general rule that trial decisions are final. By providing broad rights of appellate review in criminal matters, Parliament recognizes that fairness and justice interests require that the accused have a full opportunity to challenge a conviction even though that opportunity will prolong the process. Once those broad appellate rights have been exercised and the merits of the appeal decided, then absent an appeal to a higher court, finality concerns must become paramount. Those affected by the process should be entitled to rely on the appellate decision and conduct themselves accordingly. The appellate process cannot become or even appear to become a never-closing revolving door through which appellants come and go whenever they propose to argue a new ground of appeal. [33] I would also add that the finality principle is a particularly important factor in a case where the appeal was already dealt with on the merits but the court maintained jurisdiction as the order had not been entered.
[34] On the other hand, our system of criminal justice must avoid wrongful convictions. An appellant must establish a clear and compelling case to justify a re-opening: motion to quash, para. 36; Hummel, at para. 24 and R. v. Chow, 2003 BCCA 248, 182 B.C.A.C 88, at paras. 9 and 11, but a probing examination of the issues is required.
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