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Review - Re-Opening - Appeal (2). Bokhari v. FSD Pharma Inc.
In Bokhari v. FSD Pharma Inc. (Ont CA, 2025) the Ontario Court of Appeal considered a 're-opening' motion (here called a 'reconsideration'), here in a refusal to grant leave to appeal context:[7] Dr. Bokhari roots his reconsideration motions in the court’s inherent jurisdiction to reconsider a decision when no formal judgment has been entered: see e.g., McGrath v. Joy, 2023 ONCA 46, 166 O.R. (3d) 302, at para. 14.
[8] In Mujagic v. Kamps, 2015 ONCA 360, 125 O.R. (3d) 715, this court dismissed a motion to reconsider a refusal to grant leave in light of a subsequent decision of the court, relying on r. 61.16(6.1). The court held that the moving parties could not bring themselves under rr. 37.14 or 59.06 and that it therefore had no jurisdiction to set aside or vary its prior decision refusing leave to appeal.
[9] FSD argues that r. 61.16(6.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, applies, and that the rule does not assist Dr. Bokhari:61.16 (6.1) Subject to rules 37.14 and 59.06, an order or decision of a panel of an appellate court may not be set aside or varied under these rules. [10] Rule 37.14 has no application by its plain terms. Rule 59.06 has potential application. It provides:59.06 (1) 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 may be amended on a motion in the proceeding.
(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
(b) suspend the operation of an order;
(c) carry an order into operation; or
(d) obtain other relief than that originally awarded,
may make a motion in the proceeding for the relief claimed. [11] There was no “accidental slip or omission” or “particular on which the court did not adjudicate” within the meaning of r. 59.06(1). Rule 59.06(1) “deals with correcting an order that contains an accidental error or needs correction on a point that was not adjudicated upon. It applies where the court order contains a typo or perhaps where the judge forgot to rule on a point that was raised at the hearing”: Massiah v. Justices of the Peace Review Council, 2018 ONSC 2179 (Div. Ct.), at para. 10, leave to appeal to Ont. C.A. refused, M49133 (October 19, 2018), leave to appeal refused, [2018] S.C.C.A. No. 528.
[12] Consistent with the practice of this court, the panel did not provide reasons for denying Dr. Bokhari leave to appeal. Submissions on the application judge’s decision in Aroma figured prominently in the parties’ factums and formed a central plank of Dr. Bokhari’s argument for granting leave.
[13] It does not appear that the parties specifically noted that Aroma had been appealed in their submissions on the leave applications. However, the panel considered the parties’ submissions on Aroma and knew that the decision had been appealed and was under reserve when it rendered its decision. As a result, r. 59.06(1) does not apply.
[14] Nor does r. 59.06(2) apply. The only potentially applicable section of r. 59.06(2) that could apply in this case is r. 59.06(2)(a) – “facts arising or discovered” after the decision was made. More specifically, the argument would be that the Court of Appeal’s subsequent decision in Aroma is a new “fact” arising after the decision refusing to grant leave. Mujagic, however, forecloses such an argument. As Doherty J.A. explained, at para. 9, r. 59.06(2)(a) speaks to facts, not jurisprudence:Counsel for the moving parties submits that the change in the jurisprudence effected by Westerhof amounts to a “fact arising” after the decision refusing leave to appeal was made. I cannot accept that submission. The distinction between fact and law is well-established. Facts come from evidence, including new testimony and exhibits. Law comes from statute books and case law. The law is applied to the facts to produce a result. Rule 59.06(2)(a), by its plain meaning, speaks to “facts arising or discovered” and not to jurisprudential changes. New facts, like all facts, are found in evidence, not in the statute books or case law. [15] As a result, r. 59.06(2)(a) could not apply. Irrespective of what the court decided in Aroma, it does not amount to a new “fact” arising or being discovered after the decision refusing leave to appeal was made. . McLeod v. Wigwamen Incorporated
In McLeod v. Wigwamen Incorporated (Ont Divisional Ct, 2025) the Divisional Court dismissed a motion to re-open RTA s.210 appeals:[6] This is not an appropriate case to exercise the court’s discretion to reconsider a decision. The power to reopen an appeal after a decision has been rendered will be exercised “sparingly and only where it is clearly in the interests of justice.”: Meridian Credit Union Limited v. Baig, 2016 ONCA 942, at para. 7, citing Mujagic v. Kamps, 2015 ONCA 360. The party seeking to re-open an appeal after a decision has been rendered faces a “high hurdle”: Meridian, at para. 7, citing Chung v. Toyota Canada Inc., 2016 ONCA 852. . Benzacar v. Terk
In Benzacar v. Terk (Ont CA, 2024) the Ontario Court of Appeal dismissed what was characterized as 'reconsideration' motion, but what is more usually referred to as a 'reopening':[3] Although this court has jurisdiction to reconsider a decision before a formal order has been taken out, the circumstances under which it will do so are narrow and limited. “The party seeking to re-open an appeal after the appeal decision has been rendered faces a ‘high hurdle’…. 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”: McGrath v. Joy, 2023 ONCA 46, 166 O.R. (3d) 302, at para. 15 (internal citations omitted).
....
[31] The narrow path to reconsideration left open by the absence of a formal order becomes, if anything, even narrower when a party has had a lengthy opportunity to take out a final order and does not do so while pursuing leave to appeal to the Supreme Court. At some point, the interests of finality trump the desire of a litigant to keep the litigation pot boiling. That point has been reached in this case. . R. v. Prasad
In R. v. Prasad (Ont CA, 2024) the Ontario Court of Appeal dismissed appellant motions to admit the fresh evidence and his motion to reopen the appeal.
Here the court sets out "the principles governing reopening an appeal", emphasizing the need for finality of appeal proceedings:(3) Should the appeal be reopened?
[91] Given the answer on the first two issues, there is no need to address this issue, but I do so on the basis that it was argued and might affect future cases. The tension in a motion to re-open an appeal is between finality and avoiding a miscarriage of justice. Finality is of great weight, as Charron J.A. said in Rhingo, at p. 214: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. [Emphasis added.] [92] Under s. 683(1)(d) of the Criminal Code, an appellate court may receive the evidence of any witness when the court considers it “in the interests of justice to do so.” In the context of reopening an appeal, “[t]he core question is whether the applicant has established a clear and compelling case that a miscarriage of justice will likely occur absent reopening”: Smithen-Davis (2020), at para. 35. This court has reflected on the intersection between reopening an appeal and the reception of fresh evidence: Manasseri, at paras. 200-252; Smithen-Davis (2020), at paras. 58-60; Smithen-Davis, 2022 ONCA 832, per Pepall J.A. at para. 35 and following.
[93] I extract the following governing principles from these cases, which I paraphrase in the interests of brevity:. First, finality carries great weight in the calculus because there has already been a full trial process and an appeal on the merits.
. Second, the moving party must establish a clear and compelling case that a miscarriage of justice will likely occur if the appeal is not reopened.
. Third, that clear and compelling case may be established using fresh evidence. [94] I need not address again the first and third bullets. This appeal turns on the second – whether the moving party has established a clear and compelling case that a miscarriage of justice will likely occur if the appeal is not reopened. For the reasons set out above, the expert evidence is neither necessary nor cogent. I see no ground on which it could be said, based on the fresh expert evidence, that the trial resulted in a miscarriage of justice.
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