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Federal Court - Reconsiderations. Jawad v. Canada (Attorney General)
In Jawad v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the earlier dismissal of "the appellant’s request for an extension of time to file a motion for reconsideration":[3] Rule 397(1) of the Federal Courts Rules, S.O.R./98-106 provides that a motion to reconsider an order must be filed within "“10 days after the making of an order, or within such other time as the Court may allow”". The appellant filed the motion for reconsideration on November 12, 2024, after the deadline.
[4] To be granted an extension of time, the moving party must establish: (1) a continuing intention to pursue the matter; (2) that the matter has merit; (3) that no prejudice arises from the delay; and (4) a reasonable explanation for the delay: Canada (Attorney General) v. Hennelly, 1999 CanLII 8190 at para. 3 (F.C.A.) [Hennelly]; Greenblue Urban North America Inc. v. Deeproot Green Infrastructure, LLC, 2024 FCA 19 at paras. 5–6.
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[9] Granting an extension of time is a discretionary decision, subject to considerable deference on appeal. We are not permitted to redo the motion that was decided by the Federal Court judge. Unless an extricable question of law can be identified, which is reviewed on a standard of correctness, the Federal Court’s order is reviewed on a standard of palpable and overriding error: Qualizza v. Canada, 2025 FCA 222 at para. 9; Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at para. 79; Canada (Transportation Safety Board) v. Carroll Byrne, 2022 SCC 48 at para. 41.
[10] To identify a palpable and overriding error, it is not enough to disagree with the Federal Court’s interpretation of the evidence: Nelson (City) v. Mowatt, 2017 SCC 8 at para. 38. To be palpable, an error must be truly obvious. To be overriding, an error must affect the core of the outcome of the case: Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 at paras. 61–62; Canada v. South Yukon Forest Corporation, 2012 FCA 165 at para. 46, cited with approval in Benhaim v. St‑Germain, 2016 SCC 48 at para. 38. . Promotion in Motion, Inc. v. Hershey Chocolate & Confectionery LLC
In Promotion in Motion, Inc. v. Hershey Chocolate & Confectionery LLC (Fed CA, 2024) the Federal Court of Appeal considered grounds of 'reconsiderations' under R397:[19] The appellant submits that Hershey should have sought an order to vary the judgment, pursuant to Rule 397 of the Federal Courts Rules, to include the outcome of the motion, thereby granting Hershey a foundation for a cross-appeal.
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[21] In any event, a Rule 397 motion to reconsider is not applicable in the circumstances. Rule 397 motions are available only on vary narrow grounds where an order is unsupported by the reasons (South Yukon Forest Corporation v. Canada, 2006 FCA 34, at para. 39), or the Court overlooked or accidentally omitted a matter that should have been addressed (Novopharm Limited v. Janssen-Ortho Inc., 2007 FCA 105, at paras. 4, 6). .... . Haynes v. Canada (Attorney General)
In Haynes v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considers the rules regarding 'reconsideration' [R397]:[3] In the Order, the Federal Court held that the appellant’s request for reconsideration was outside the purview of rule 397 of the Federal Courts Rules, SOR/98-106 (the Rules). It explained that rule 397 permits reconsideration only where “(a) an order does not accord with any reasons given for it; (b) a matter that should have been dealt with was overlooked or accidentally omitted; or (c) clerical mistakes, errors or omissions are in need of correction”. Being satisfied that the appellant had been granted the sole remedy he was seeking in his notice of application for judicial review, which remedy did not include costs, the Federal Court concluded that it was not open to it, on that basis, to reconsider the Judgment.
[4] Motions for reconsideration under rule 397 call for the exercise of judicial discretion. Therefore, absent an error on a question of law or an extricable legal principle, they are reviewable on the highly deferential standard of palpable and overriding error (Sharma v. Canada (Revenue Agency), 2020 FCA 203, 325 A.C.W.S. (3d) 145 at para. 2).
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[6] The appellant conceded at the hearing of this appeal that the failure to seek costs in his notice of application was an oversight. This is something that cannot be remedied through a rule 397 motion, which mainly “addresses injustice if the Court, not a party, has overlooked or accidentally omitted something” (Abbud v. Canada (Citizenship and Immigration), 2007 FC 223, 155 A.C.W.S. (3d) 939 at para. 10). When this Court or the Federal Court renders a decision, it is functus officio, meaning that they do not have jurisdiction to revisit their decisions outside the very narrow circumstances of rule 397 (Janssen Inc. v. Abbvie Corporation, 2016 FCA 176, 242 A.C.W.S. (3d) 11 at para. 35; Taker v. Canada (Attorney General), 2012 FCA 83, 213 A.C.W.S. (3d) 529 at para. 5). On this point alone, I cannot find any error, whether on the law or the facts, on the part of the Federal Court. . Oleynik v. Canada (Attorney General)
In Oleynik v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the vexed issue of effect of the filing of a reconsideration and the running of the time limit for filing appeals. While this issue occurs primarily in administrative proceedings, in this court situation the Federal Court of Appeal holds that the filing of a reconsideration does not delay the timeline for filing an appeal:[31] The Attorney General argues that Dr. Oleynik’s Rule 397 motion before the Federal Court did not relieve him of the obligation to timely file a notice of appeal for the First Decision, citing Pharmascience Inc. v. Canada (Minister of Health), 2003 FCA 333 and Sivakumar v. Canada (Minister of Citizenship and Immigration) (1998), 150 F.T.R. 299, 81 A.C.W.S. (3d) 215 (FCTD). As a result, Dr. Oleynik’s appeal of the First Decision is too late.
[32] I agree.
[33] In my view, bringing a Rule 399 motion similarly does not affect the timeline for instituting an appeal. Had Dr. Oleynik filed an appeal of the First Decision, the Federal Court nonetheless would have had the discretion to entertain his reconsideration motion: Étienne v. Canada (1993), 164 N.R. 318, 45 A.C.W.S. (3d) 813 at 318 (N.R.) (FCA); Musqueam Indian Band v. Canada (Governor in Council), 2004 FC 931 at para. 22; In re motion for reconsideration of the Court’s Order in Peshdary v. AGC (2018), 2020 FC 137 at para. 12. . Oleynik v. Canada (Attorney General)
In Oleynik v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal contrasts the role of a reconsideration [under R397] and an appeal:[29] I agree with the Federal Court that “Rule 397 is not meant to be an appeal in disguise, allowing [Dr. Oleynik] to re-argue an issue a second time in the hope that the Court will change its mind” (Second Decision at para. 5). A claim that the Federal Court applied the wrong legal test in the First Decision is a subject matter for appeal, not a reconsideration motion. ... . Sharma v. Canada (Revenue Agency)
In Sharma v. Canada (Revenue Agency) (Fed CA, 2020) the Federal Court of Appeal reviews the status of reconsiderations under Rule 397 of the Federal Court Rules:[1] Mr. Sharma appeals from a decision of the Federal Court, dated November 1, 2018, dismissing his motion to reconsider an Order dated August 28, 2018. In that Order, Justice Bell denied his request for an extension of time to apply for judicial review of a decision by the CRA.
[2] It is well established that a motion for reconsideration pursuant to Rule 397 of the Federal Courts Rules, SOR/98-106, calls for the exercise of judicial discretion: Ruffolo v. Fraser Valley Institution for Women, 2016 FCA 91, at paras. 7-8. Accordingly, absent an error on a question of law or an extricable legal principle, this Court will only intervene with the exercise of that discretion if a palpable and overriding error can be demonstrated. No such error has been made out in the case at bar.
[3] Rule 397 provides that a party may request that the Federal Court reconsider the terms of an order on the grounds that the order does not accord with any reasons given for it, or that a matter that should have been dealt with has been overlooked or accidentally omitted. It is clearly not meant to be an appeal in disguise, allowing a litigant to re-argue an issue a second time, in the hope that the Court will change its mind: Bell Helicopters Textron Canada Limitée v. Eurocopter, 2013 FCA 261, at para. 15.
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