Simon's Megalomaniacal Legal Resources

The Nature of a Set-Aside

. Salehi v. Association of Professional Engineers of Ontario

In Salehi v. Association of Professional Engineers of Ontario (Ont CA, 2022) the Court of Appeal declined jurisdiction on a R59.06 set aside motion after an appeal had been heard and decided, although it endorsed that the Superior Court retained such jurisdiction despite the appeal being completed:

[4] The short response to this motion is that this court does not have jurisdiction to entertain a motion to set aside an order that was affirmed on appeal where the motion is based on fraud or newly-discovered facts. Such a motion must be brought before a judge of the Superior Court: R. v. Moura, 2003 CanLII 46485 (ON CA), 172 C.C.C. (3d) 340 (Ont. C.A.), at paras. 24-25; Aristocrat v. Aristocrat (2004), 2004 CanLII 32256 (ON CA), 73 O.R. (3d) 275 (C.A.), at paras. 9-10, leave to appeal to S.C.C. refused (2005), 207 O.A.C. 399 (note); Mehedi v. 2057161 Ontario Inc. (Job Success), 2014 ONCA 604, 123 O.R. (3d) 73, at paras. 15-21.

[5] In Mehedi, Juriansz J.A. explained, at para. 20:

The rationale of rule 59.06(2)(a) continues to apply even though an appeal has been determined. An appeal merely concludes there is no reversible error at trial. The rule allows an order to be set aside or varied, not because of any mistake in the proceedings, but because it has become apparent that the decision was wrong due to fraud or other facts discovered after it was made.

. Mehedi v. 2057161 Ontario Inc. (Job Success)

In Mehedi v. 2057161 Ontario Inc. (Job Success) (Ont CA, 2014) the Court of Appeal states plainly the effect of a successful appeal, and that it doesn't necessarily end the original case:

[20] The rationale of rule 59.06(2)(a) [SS: set-aside or varying order] continues to apply even though an appeal has been determined. An appeal merely concludes there is no reversible error at trial. The rule allows an order to be set aside or varied, not because of any mistake in the proceedings, but because it has become apparent that the decision was wrong due to fraud or other facts discovered after it was made.