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Review - Re-Opening - Appeal (2). 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).
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[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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