Court of Appeal for Ontario

Date: 2025-04-11
Docket: M54948 (COA-23-OM-0274) & M54949 (COA-23-OM-0275)
Before: Peter Lauwers, Katherine van Rensburg, and Julie Thorburn

Appearances

• James Zibarras, for the moving party, Raza Bokhari
• R. Seumas M. Woods, Doug McLeod, and Sahil Kesar, for the responding party, FSD Pharma Inc.

Heard: In writing

Reasons for Decision

Background

[1] The moving party, Dr. Bokhari, initially sought leave to appeal two decisions, the first refusing to set aside an arbitral award under s. 46 of the Arbitration Act, 1991, S.O. 1991, c. 17, and the second granting an enforcement application against the moving party under s. 50 of the Act. Dr. Bokhari argued there was a reasonable apprehension of bias because the arbitrator accepted appointments before and during the arbitration from other lawyers at the law firm representing the responding party, FSD Pharma Inc.

[2] Dr. Bokhari sought leave to appeal both decisions. He argued leave should be granted to address:

1. the conflict between the application judge’s decision and the decisions in Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc., 2023 ONSC 1827, and Vento Motorcycles, Inc. v. United Mexican States, 2023 ONSC 5964;
2. the conflict between the application judge’s decision and the plain words of the Arbitration Act which impose on arbitrators a duty to disclose circumstances that may give rise to a reasonable apprehension of bias; and
3. the uncertainty and confusion caused by the application judge’s decision incorrectly stating that there are not established standards regarding the duty to disclose and that a party’s right to disclosure is extinguished if it fails to make certain inquiries regarding potential conflicts of interest to an arbitrator during the appointment process.

[3] This panel of the court dismissed the leave motions on February 2, 2024, without reasons. At the time of dismissal, another panel of this court had heard an appeal of the Aroma decision and the decision was under reserve. Vento had also been appealed, but not yet perfected. The decision in Aroma was ultimately released on November 19, 2024 (having been heard on December 6, 2023, with additional written submissions on August 19, 2024): Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc., 2024 ONCA 839, leave to appeal requested, [2025] S.C.C.A. No. 5. The decision in Vento was released on February 4, 2025 (being heard November 4, 2024): Vento Motorcycles, Inc. v. Mexico, 2025 ONCA 82.

The Reconsideration Motions

[4] On March 18, 2024, before this court’s decision in Aroma was released, Dr. Bokhari brought motions to reconsider the denial of his leave motions. In his factum, he argued that, because the panel did not provide reasons for denying leave, “there is a substantial risk that the Honourable panel was unaware that Aroma remained under reserve at the Court of Appeal”. Further, he asserted that it was “contrary to the interests of justice to reject Dr. Bokhari’s Leave Motions and then decide Aroma in a manner that would have substantially, if not wholly, determine Dr. Bokhari’s Leave Motions”. FSD filed submissions arguing there was no merit to the reconsideration motions.

[5] The panel was aware that Aroma was under reserve at the time the leave applications were denied.

[6] On June 5, 2024, this panel heard the reconsideration motions in writing. Through a regrettable oversight, the panel did not issue its decision.

[7] Dr. Bokhari roots his reconsideration motions in the court’s inherent jurisdiction to reconsider a decision when no formal judgment has been entered: see e.g., McGrath v. Joy, 2023 ONCA 46, para 14.

[8] In Mujagic v. Kamps, 2015 ONCA 360, this court dismissed a motion to reconsider a refusal to grant leave in light of a subsequent decision of the court, relying on r. 61.16(6.1). The court held that the moving parties could not bring themselves under rr. 37.14 or 59.06 and that it therefore had no jurisdiction to set aside or vary its prior decision refusing leave to appeal.

[9] FSD argues that r. 61.16(6.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, applies, and that the rule does not assist Dr. Bokhari:

61.16 (6.1) 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.

[10] Rule 37.14 has no application by its plain terms. Rule 59.06 has potential application. It provides:

59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

(2) 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;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,

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

[11] There was no “accidental slip or omission” or “particular on which the court did not adjudicate” within the meaning of r. 59.06(1). Rule 59.06(1) “deals with correcting an order that contains an accidental error or needs correction on a point that was not adjudicated upon. It applies where the court order contains a typo or perhaps where the judge forgot to rule on a point that was raised at the hearing”: Massiah v. Justices of the Peace Review Council, 2018 ONSC 2179, para 10, leave to appeal to Ont. C.A. refused, M49133 (October 19, 2018), leave to appeal refused, [2018] S.C.C.A. No. 528.

[12] Consistent with the practice of this court, the panel did not provide reasons for denying Dr. Bokhari leave to appeal. Submissions on the application judge’s decision in Aroma figured prominently in the parties’ factums and formed a central plank of Dr. Bokhari’s argument for granting leave.

[13] It does not appear that the parties specifically noted that Aroma had been appealed in their submissions on the leave applications. However, the panel considered the parties’ submissions on Aroma and knew that the decision had been appealed and was under reserve when it rendered its decision. As a result, r. 59.06(1) does not apply.

[14] Nor does r. 59.06(2) apply. The only potentially applicable section of r. 59.06(2) that could apply in this case is r. 59.06(2)(a) – “facts arising or discovered” after the decision was made. More specifically, the argument would be that the Court of Appeal’s subsequent decision in Aroma is a new “fact” arising after the decision refusing to grant leave. Mujagic, however, forecloses such an argument. As Doherty J.A. explained, at para. 9, r. 59.06(2)(a) speaks to facts, not jurisprudence:

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.

[15] As a result, r. 59.06(2)(a) could not apply. Irrespective of what the court decided in Aroma, it does not amount to a new “fact” arising or being discovered after the decision refusing leave to appeal was made.

[16] In any event, Dr. Bokhari’s motions to reconsider fail on the merits. The interests of justice do not favour reconsidering this panel’s refusal to grant leave.

[17] The reconsideration motions are dismissed.

“P. Lauwers J.A.”
“K. van Rensburg J.A.”
“Thorburn J.A.”