In Chuang v Toyota Canada Inc. and Meridian Credit Union Limited v Baig, the Court of Appeal for Ontario dismissed motions to re-open appeals brought by unsuccessful appellants. In both decisions, the Court reaffirmed that the power to re-open an appeal “will be exercised sparingly and only where it is clearly in the interests of justice”. Chuang and Meridian demonstrate that a party seeking to re-open an appeal cannot satisfy that stringent threshold merely by advancing a new legal theory or pointing to alleged errors in a Court’s reasons.

Chuang

The appellants appealed from a trial decision finding that the respondent had unreasonably terminated a contract with the appellants, but did not have to pay any damages because of an exclusion clause in the contract. The appeal was dismissed.

After hiring new counsel, the appellants brought a motion to re-open the appeal so that they could advance a new legal theory. They wanted to argue that the respondent had repudiated the contract, and submitted that a proper legal analysis in light of this new theory would lead to a different result.

The motion was dismissed. The appellants had not argued repudiation at trial or on their appeal. The Court noted that a party should not generally be allowed to raise a new legal argument at the appellate stage, and concluded that it would be unfair to permit the appellants to re-open their appeal to advance this new legal issue after 10 years of litigation.

Meridian

The appellant was found liable for fraudulent misrepresentation. His appeal was dismissed, and he then applied for leave to appeal to the Supreme Court.

However, instead of pursuing his leave application at the Supreme Court, the appellant brought a motion asking the Court of Appeal to re-open his appeal. According to the appellant, the Court’s decision “disclosed a misapprehension or misapplication of a material piece of evidence.”

To begin with, the Court observed that the appellant’s reliance on rule 59.06 of Ontario’s Rules of Civil Procedure was misplaced. All of the grounds for re-opening an appeal in that rule concerned orders, whereas the appellant was challenging the Court’s reasons. However, the Court also stated that it could reconsider its own decision where no order has been taken out and entered.

The appellant’s motion was dismissed. The Court noted that the arguments raised by the appellant had been considered and rejected, and concluded that a losing party’s disagreement with the Court’s reasons was not the kind of “rare circumstance” that would justify re-opening an appeal. The Court also stated that the appellant’s application for leave to appeal to the Supreme Court was the “the normal and proper recourse for a party who wishes to challenge” a Court of Appeal’s reasons.