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Civil Litigation - Orders - R59.06 Set-Asides - Standard of Review. Rabbani v. Furney
In Rabbani v. Furney (Ont CA, 2026) the Ontario Court of Appeal dismissed a motion to set aside [under RCP R59.06], here after the matter has progressed to a SCC leave denial.
The court considers the R59.06 set aside motion, referring to it as a 'reconsideration':[2] The appellants now ask this court to set aside the order dismissing their appeal pursuant to rr. 59.06(2)(a) and (b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. They claim to have discovered new facts and that the dismissal of their appeal was obtained by fraud. They ask us to reopen the appeal and dismiss the responding party’s originating claim.
[3] A motion to reconsider is not an opportunity to reargue the appeal or to recast or revisit issues that have already been decided: Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 512, at para. 9. A court will reopen an appeal “sparingly and only where it is clearly in the interests of justice”. This is a “high hurdle”: Meridian Credit Union Limited v. Baig, 2016 ONCA 942, 6 C.P.C. (8th) 33, at para. 7; Mujagic v. Kamps, 2015 ONCA 360, 125 O.R. (3d) 715, at para. 5; Chuang v. Toyota Canada Inc., 2016 ONCA 852, 66 C.L.R. (4th) 177, at para. 7.
[4] The appellants submit that they have discovered new documents which support their allegations of “systemic fraud, unlawful conduct, and procedural misconduct that were not previously available and fundamentally alter the evidentiary and legal landscape.” They rely primarily on documents that have been available throughout this litigation, as well as judicial endorsements and submissions in the court below. None of these materials satisfy the stringent test to reopen an appeal.
[5] The appellants’ claims, which they have reiterated in their notice of motion and throughout the materials filed in support of the motion, were advanced in the court below and on appeal, and have already been rejected.
[6] There is no basis to set aside the order dismissing the appeal and to rehear the case on its merits.
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