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Amending, Setting Aside or Varying

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

In Mehedi v. 2057161 Ontario Inc. (Job Success) (Ont CA, 2014) the Court of Appeal considered when (and where, and who before) a court, on being presented with fresh evidence unavailable at trial (and in this case even after appeals had been dismissed), should re-open a trial:
[16] In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII), 2001 SCC 59, [2001] 2 S.C.R. 983, the Supreme Court indicated that the discretion to reopen the trial is the trial judge’s. The trial judge is in the best position to decide whether fairness dictates that the trial be reopened. The trial judge should exercise his or her discretion to reopen the trial “sparingly and with the greatest care” so that “fraud and abuse of the [c]ourt’s processes” do not result: Sagaz, at para. 61.

[17] In Sagaz, however, the trial judge was asked to reopen the trial before the appeal, whereas in Mr. Mehedi’s case, the appeal has already been heard and determined.

[18] In Aristocrat v. Aristocrat 2004 CanLII 32256 (ON CA), (2004), 73 O.R. (3d) 275 (C.A.), the moving party’s appeal to the Court of Appeal and his application for leave to appeal to the Supreme Court of Canada had been dismissed, when subsequently he claimed he discovered fresh evidence showing that his wife and daughter had induced the Court of Appeal to dismiss his appeal by reason of “false, fabricated, fraudulent and perjured evidence”. He brought a motion in the Court of Appeal pursuant to rule 59.06(2)(a) to set aside the order dismissing his appeal. The matter was eventually heard by a panel of the court, which said at para. 9:
Based upon his oral submissions and his response to questions from the court, it is apparent that Mr. Aristocrat’s main concern is to re-open and set aside the original judgment of [the trial judge] as a judgment obtained by fraud. In order to accomplish this, he has moved under rule 59.06(2)(a). The Court of Appeal has no jurisdiction to hear such a motion. Such motions should be brought in the action before a judge of the Superior Court.
[19] The court in Aristocrat referred to an earlier case, R. v. Moura 2003 CanLII 46485 (ON CA), (2003), 172 C.C.C. (3d) 340 (Ont. C.A.), in which Morden J.A. held that a motion to set aside an order of the Superior Court, affirmed on appeal, on the basis of newly discovered evidence of fraud should be brought in the Superior Court.

[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.

[21] While a motion under rule 59.06(2) must be brought in the Superior Court, it need not be brought before the trial judge. This is made clear by rule 37.14(4), which provides:
A motion under…any…rule to set aside, vary or amend an order[1] of a judge may be made,

(a) to the judge who made it, at any place; or

(b) to any other judge, at a place determined in accordance with rule 37.03….
[22] Rule 37.03 merely requires that the motion be brought in the county where the proceeding was commenced or to which it has been transferred.

[23] Case law applying rule 59.06(2) confirms that rule 59.06(2) motions “may be made to the trial [j]udge or to a [j]udge in motions Court”: Lac Des Mille Lacs First Nation v. Viherjoki (1996), 50 C.P.C. (3d) 94 (Ont. C.J. (Gen. Div.)), at para. 11.

[24] Canada v. Granitile Inc. (2008), 2008 CanLII 63568 (ON SC), 302 D.L.R. (4th) 40 (Ont. S.C.) is an example of a case where, under rule 59.06(2), a judge of the Superior Court set aside the judgment of another trial judge. Molloy J., the trial judge, found in favour of the plaintiffs in their action against Canada. Canada brought a rule 59.06(2) motion and Lederer J. held a trial on the issue of whether Molloy J.’s judgment in the plaintiffs’ favour should be set aside because of the plaintiffs’ fraud. Lederer J. ultimately concluded that Molloy J.’s judgment must be set aside.

[25] In Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 CanLII 5454 (ON CA), 165 D.L.R. (4th) 268 (Ont. C.A.), Scott J. granted judgment by approving a settlement on behalf of a minor plaintiff. Leitch J., another judge of the Ontario Court (General Division), set aside the judgment on the basis of new evidence under rule 59.06(2). On appeal, the Court of Appeal concluded that Leitch J. erred in doing so because the new evidence at issue was available at the time of the initial judgment. The Court of Appeal did not hold that only Scott J. could set aside her own judgment under rule 59.06(2).

[26] While the law does not require the trial judge whose judgment is at issue to hear the rule 59.06(2) motion, it is preferable for the trial judge to do so. The trial judge is already familiar with all of the evidence at trial, and is well-suited to expeditiously determine whether the alleged fraud or the new evidence requires the trial judgment to be set aside.

[27] In a recent chambers decision, Janjua v. Khan, 2014 ONCA 5, the appellant, who had a rule 59.06(2) motion regarding the trial judgment pending in the Superior Court, also sought leave to appeal the trial judgment in the Court of Appeal. Lauwers J.A. dismissed the leave application to allow the rule 59.06(2) motion to proceed. He held, at para. 11:
…the preferable procedure in these circumstances is to allow the process before the Superior Court to unfold. It would perhaps be especially appropriate for [the trial judge] to hear the [rule 59.06(2)] motion to set aside her judgment on the basis of the fresh evidence. She would be in a superior position to contextualize the fresh evidence and to direct the trial of an issue if so advised.
[28] In A.H. Al-Sagar & Brothers Engineering Project Co. v. Al-Jabouri (1989), 46 C.P.C. (2d) 69 (Ont. H.C.), Sutherland J., while clear that a motion under rule 59.06(2) may be brought before any judge in motions court in the ordinary way, seems to suggest that the motion should be brought before the trial judge where the findings of the trial judge are being called into question and the new evidence must be considered along with the evidence that was before the trial judge

[29] In this case, Mr. Mehedi seeks to undermine the credibility findings made by the trial judge with the new evidence. However, as the trial judge has already declined to hear the motion, Mr. Mehedi must bring his motion before another judge in motions court in the ordinary way.
. RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP

In RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP (Ont CA, 2020) the Court of Appeal considered the manner of errors in an order that may be addressed by R59.06:
The r. 59.06 motion

[40] The appellants argue that the trial judge erred in dismissing their motion under r. 59.06 by applying the wrong test. This was not a case in which they alleged that the judge erred in his reasons, nor did the appellants seek to vary matters that had been decided. The motion concerned four matters that had not been adjudicated upon. In these circumstances, the appellants say, the trial judge had a broad discretion to grant relief on their motion if it was in the interests of justice to do so.

[41] The trial judge did not apply the wrong test. He recognized that r. 59.06 was to be used for the purpose of correcting errors in a judgment, not in the reasons, as this court explained in Meridian Credit Union Ltd. v. Baig, 2016 ONCA 942. In that case, the court explained that there is no jurisdictional impediment to a court reconsidering a decision if an order has not been taken out and entered, but a party seeking to re-open an appeal faces a high hurdle. As the court noted at para. 7, citing Mujagic v. Kamps, 2015 ONCA 360, 125 O.R. (3d) 715, leave to appeal refused, [2015] S.C.C.A. No. 330, a trial judge may re-open an appeal prior to the entering of an order “sparingly and only where it is clearly in the interests of justice” to do so.

[42] In this case, given that a judgment had not been taken out and entered, it was open to the trial judge to entertain the appellants’ motion. He proceeded to consider and reject all the grounds raised by the appellants. I will address the alleged errors in the order raised by the appellants.
. Wellman v. Telus Communication Company

In Wellman v. Telus Communication Company (Div Ct, 2021) the Divisional Court issued what I think is an unusual and questionable order. The parties disagreed about the interpretation of a Supreme Court of Canada (SCC) order with respect to costs, so - after they moved at trial level to resolve it (leading to the present appeal) - the Divisional court ordered (it wasn't simply a suggestion) that they make an application to the SCC to resolve the issue. The required application appears to be within the SCC's jurisdiction, but it bothers me that parties could be ordered to make what is normally highly-deferred-to tactical decision:
[6] As a result, this court orders that the parties jointly apply to the Supreme Court of Canada pursuant to Rule 81 and Rule 6 of the Rules of the Supreme Court of Canada, SOR/2002-156. The parties are to apply for clarification of the terms of the costs order issued by the Supreme Court, and an extension of time if necessary. The decision of Morgan J. is to be included in the application. Although directed as a joint application, the relief sought by each party may differ. This application must be made within 45 days.
. Pourshian v. Walt Disney Company

In Pourshian v. Walt Disney Company (Div Ct, 2021) the Divisional Court considered the amendment of an order, here with respect to costs:
[22] In Kerr v. Danier Leather Inc., 2005 CanLII 23095 (Sup. Ct.), the court relied on Rule 59.06(1) to award costs three years after an unsuccessful motion for summary judgment motion in circumstances where the respondent had failed to raise the issue of costs. In that case, at para. 34, the Court held that “[j]udgments or orders should reflect the true intention of the court and the court retains jurisdiction to amend a judgment or order where it does not reflect the court's intention… In the situation at hand, I would have dealt with the issue of costs had it been raised by the plaintiff before the Orders were finalized.” In my view, the same applies here.
. Asghar v. Toronto (Police Services Board)

In Asghar v. Toronto (Police Services Board) (Ont CA, 2021) the Court of Appeal considered a motion to set aside a chambers judge order:
[5] On this panel review motion, Mr. Asghar seeks to set aside the order of the chambers judge and obtain the same relief sought on the underlying motion. We decline to grant that relief.

[6] A panel review of a chambers judge’s decision is not a de novo determination. Where the chambers judge has made a discretionary decision, the decision is entitled to deference and the reviewing panel will not interfere absent legal error or misapprehension of material evidence: Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9. In addition, if the chambers judge committed an error in principle, the panel may intervene: Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21.
. Xia v. Lakehead University

In Xia v. Lakehead University (Div Ct, 2020) the Divisional Court makes some basic points on the settlement of orders, here with a self-represented party at appeal:
[1] The parties have been unable to settle the form and content of the order reflecting the panel’s decision in this case released October 9, 2020 (Xia v. Lakehead University, 2020 ONSC 6150). Dr Xia is self-represented and this may be why the order could not be settled without recourse to the court. For future reference, Dr Xia should understand that settling an order does not include substantive argument about the content of the order but only whether the draft order accurately reflects the decision of the court.


[8] Appellate proceedings taken from this court do not affect the process for issuing and entering this court’s orders. Thus, Dr Xia’s proceedings in the Court of Appeal are not relevant to settling the terms of the formal order reflecting the Divisional Court’s decision. I do note, for Dr Xia’s information, however, that a notice of motion for leave to appeal does not have the effect of staying an order. If leave to appeal is granted and a Notice of Appeal delivered, then enforcement of the costs ordered by the panel will be stayed pending appeal.

[9] Settling the form and content of an order is usually done on appointment before the Registrar rather than by a judge. I have settled the order in this instance because of the COVID-19 pandemic which makes appointments before the Registrar more difficult to arrange.
. Holterman v. Fish

In Holterman v. Fish (Ont CA, 2017) the test for setting aside an Order of the court [under RCP Rule 59.06(2(a) for fraud], here a consent Order for discontinuance of an action, was set out by the court:
[17] In determining whether there were exceptional circumstances to set aside the discontinuance, the motion judge applied the Sagaz test, which guides the application of r. 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for setting aside or varying an order due to fraud or facts arising or discovered after the order has been made. In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII), [2001] 2 S.C.R. 983, the moving party sought to reopen a trial on the basis of fresh evidence. The Supreme Court ruled against the moving party, and cautioned at para. 61 of its decision that the discretion to reopen a trial should be exercised “sparingly and with the greatest care.”

[18] The test from Sagaz is often reduced to two questions: (1) whether the new evidence, if presented at trial, would probably have changed the result, and (2) whether the evidence could have been obtained before trial by the exercise of reasonable diligence. But more is involved. As this Court stated in Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670 (CanLII), at para. 20, the test “includes considerations of finality, the apparent cogency of the evidence, delay, fairness and prejudice.” Appellate courts must also consider the importance of deferring to trial judges, who are “in the best position to decide whether, at the expense of finality, fairness dictates that the trial be reopened”: Sagaz, at para. 60; Mehedi, at para. 21.

[19] In my view, the factors set out in Sagaz provide an appropriate structure for determining whether to set aside a notice of discontinuance, with the caveat that the interest in finality may pose an even greater obstacle to setting aside a consent discontinuance than reopening a trial. An important aspect of a discontinuance on consent is that the parties, after considering their positions, made a joint decision to end the litigation. Although there may be exceptional circumstances where departure from such a decision will be justified, courts should not allow “significant and considered measures” to terminate litigation to be “lightly undone”: Yancey v. Neis, 1999 ABCA 272 (CanLII), 250 A.R. 19, at para. 25; Philipos v. Canada (Attorney General), 2016 FCA 79 (CanLII), 483 N.R. 328, at paras. 17-20.


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