COURT OF APPEAL FOR ONTARIO

CITATION: Mullings v. Robertson, 2020 ONCA 369

DATE: 20200611

DOCKET: M51181 (C66780)

Lauwers, Paciocco and Fairburn JJ.A.

BETWEEN

Owen Cornelius Mullings

Appellant (Moving Party)

and

Jacqueline Alice Dian Robertson

Respondent (Responding Party)

Counsel:

Owen Cornelius Mullings, acting in person

Lauri Daitchman, for the respondent

Heard: In writing

REASONS FOR DECISION

[1] The self-represented applicant, Mr. Owen Mullings, appealed a Family Court decision resolving numerous issues between the applicant and his former common law spouse, Ms. Jacqueline Robertson. On December 13, 2019, the applicant’s appeal was dismissed: 2019 ONCA 979. He now moves, pursuant to rr. 37.14(6) and 59.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to have the appeal decision set aside and he seeks leave for a new hearing. He also asks for interim relief and he asks this court to order the payment of sums in his favour, and relief from costs orders made in the appeal and at the Family Court trial.

[2] Rule 61.16(6.1) refers to the two rules the applicant invokes. It provides that a decision of a panel of this court may only be varied or set aside pursuant to rr. 37.14 or 59.06.

[3] For its part, r. 37.14 has no application here. This is not a case involving an order obtained on motion without notice, a failure to appear on a motion, or an order of the registrar: r. 37.14(1).

[4] As for the court’s authority to reconsider a decision under r. 59.06, that authority is “limited and will be exercised sparingly and only where it is clearly in the interests of justice to do so”: Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840, at para. 6., leave to appeal dismissed, [2017] S.C.C.A. No. 366. This court will set aside a decision and rehear a case on its merits only in rare circumstances: see First Elgin Mills Development Inc. v. Romandale Farms Limited, 2015 ONCA 54, 381 D.L.R. (4th) 114, at para. 7.

[5] In support of his application, the applicant argues that the appeal decision contains numerous “errors”. In each case he submits that this court “failed to consider that the trial judge erred” in making findings by arriving at decisions contrary to the preponderance of evidence or based on misapprehensions of the evidence. The misapprehensions of the evidence he identifies amount to no more than the failure by the trial judge to make the findings and orders the applicant advocates. In substance, the grounds the applicant offers in support of his request that this court’s decision be set aside and a new hearing be held amount to expressions of disagreement with the correctness of the appeal decision. Although made in the context of a criminal appeal, Charron J.A.’s comments in R. v. H. (E.), 1997 CanLII 418 (ON CA), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp. 101-102, leave to appeal refused, [1997] S.C.C.A. No. 256, are apt:

[T]o the extent that an application to reopen an appeal is a challenge to the correctness of a decision … the application to reopen is an attempt to vest the Court of Appeal with a jurisdiction which is reserved to the Supreme Court of Canada. … The power to further review the matter no longer belongs to this court.

[6] We see no basis upon which it would be in the interests of justice to set aside the appeal decision. The proper route in contesting the appeal decision was for the applicant to have sought leave to appeal from the Supreme Court of Canada.

[7] The motion is dismissed.

“P. Lauwers J.A.”

“David M. Paciocco J.A.”

“Fairburn J.A.”