On May 20, 2015, the Ontario Court of Appeal decided in Mujagic v. Kamps that it has no jurisdiction to set aside its prior decision refusing leave to appeal a Divisional Court ruling on the basis of a subsequent Court of Appeal decision changing the law. For the Court, Justice Doherty held that a change in the law did not amount to a “fact arising” after the decision was made that would allow the Court of Appeal to vary its decision. He also refused to grant an extension of time to seek leave to appeal to the Supreme Court of Canada. Though the Court of Appeal has this power, he held it should be exercised only in “the most unusual circumstances”.

Background

The case emerged from a car accident. A jury found the Defendant 30% responsible for the accident, but awarded the Plaintiff zero damages. The Plaintiff’s appeal to the Divisional Court was unsuccessful, as was her motion for leave to appeal the Divisional Court’s decision to the Court of Appeal. She then brought a motion to reconsider the denial of granting leave, asserting that a recent Court of Appeal case changed the law related to her claim.

Court of Appeal’s Jurisdiction

The fact that neither party took out an order dismissing the motion for leave to appeal did not inhibit the Court from reconsidering its decision. The Defendant, however, relied on Rule 61.16(6.1) of the Rules of Civil Procedure, which reads:

Subject to rules 37.14 and 59.06, an order or decision of a panel of an appellate court may not be set aside or varied under these rules.

Justice Doherty analyzed this Rule:

[7]        The use of the phrase “order or decision” is instructive and renders the taking out of an order irrelevant to the power to reconsider a decision governed by rule 61.16. The inclusion of the word “decision” reflects the practical reality that orders are often not taken out when motions are dismissed in the Court of Appeal.

[8]        As rule 61.16(6.1) applies to this motion, the moving parties must bring themselves within rules 37.14 or 59.06 for this court to have jurisdiction to set aside or vary its decision refusing leave to appeal. Rule 37.14 has no application in the circumstances of this case. The moving parties do, however, rely on rule 59.06 and specifically rule 59.06(2)(a), which provides:

A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

may make a motion in the proceeding for the relief claimed.

[9]        Counsel for the moving parties submits that the change in the jurisprudence effected by Westerhof amounts to a “fact arising” after the decision refusing leave to appeal was made. I cannot accept that submission. The distinction between fact and law is well-established. Facts come from evidence, including new testimony and exhibits. Law comes from statute books and case law. The law is applied to the facts to produce a result. Rule 59.06(2)(a), by its plain meaning, speaks to “facts arising or discovered” and not to jurisprudential changes. New facts, like all facts, are found in evidence, not in the statute books or case law. [emphasis added]

Justice Doherty added that he concluded that the motion would fail on the merits in any event, and the interests of justice therefore did not favour reconsidering the decision.

Extending Time to Seek Leave to Appeal to the Supreme Court of Canada

Justice Doherty, in conclusion, considered the Plaintiff’s claim for “alternate relief”:

[17]      Counsel for the moving parties asked this court to extend the time for delivery of an application for leave to appeal to the Supreme Court of Canada, should this court decline to reconsider its earlier decision refusing leave. This court would appear to have jurisdiction to grant the requested extension: Supreme Court Act, R.S.C. 1985, c. S-26, s. 59(1).

[18]       The Supreme Court of Canada, as the court of last resort, has total control over its own docket in civil matters. Except in the most unusual circumstances, questions relating to access to that court should be addressed by that court. The moving parties have not advanced any persuasive reason for this court to make an order in respect of a proceeding in the Supreme Court of Canada. I would not make any order extending the time for delivery of an application for leave to appeal to the Supreme Court of Canada.

[19]       I would dismiss the motion with costs, if requested. …