On July 15, 2014, the Nova Scotia Court of Appeal decided in MacQueen v. Canada that it did not have jurisdiction to reconsider its previous order granting an appeal. The motion to reconsider was brought by the respondents on the basis that the Supreme Court of Canada had issued two highly relevant judgments in the weeks following the Court of Appeal’s decision.

In dismissing the motion, Oland J.A. first noted that once a court has issued its order, it cannot, as a general rule, re-open that decision. This is the common law doctrine of functus officio. Oland J.A. observed that there are at least two exceptions to the functus officio doctrine: to allow a court to (1) correct slips and (2) address errors in expressing its manifest intent. The Civil Procedures Rules also contain provisions to the same effect.

Oland J.A. then considered the inherent jurisdiction of the Court of Appeal. After reviewing the jurisprudence, she concluded that:

whatever inherent jurisdiction this Court may possess to re-open a decision after its order issued, it will exercise it only in “extraordinary, compelling and exceptional circumstances” “where justice manifestly so requires (para. 28).

In response to the respondents’ argument that the Court should reconsider its decision because the Supreme Court hears few civil cases, Oland J.A. stated:

[40] The respondents’ argument that the Supreme Court of Canada cannot hear “all of the appeals, however meritorious or broadly important” that are placed before it, amounts to a submission that the possibility or likelihood that it will not be granted leave to appeal to that court should be taken into consideration. With respect, I disagree. Whether – or not – the Supreme Court of Canada will grant leave cannot be more than speculative. In my view, that makes this an inappropriate factor to be considered in determining whether circumstances are such that justice manifestly requires a reconsideration.

Oland J.A. concluded that the respondents had not establish any extraordinary, compelling and exceptional circumstances, which would compel the Court to reconsider its decision. She added that acceding to the respondents’ request for reconsideration would negatively impact the need for the finality of judgments and the integrity of the court’s process.