Court of Appeal for Ontario

Citation: Trainor v. Canada (Customs and Revenue Agency), 2011 ONCA 794

Date: 2011-12-15

Docket: C53973

Before: O’Connor A.C.J.O., Epstein J.A. and Pardu J. (ad hoc)

Between:

Richard N. Trainor

Plaintiff (Respondent)

and

Canada Customs and Revenue Agency

Defendant (Appellant)

Counsel:

Alexandre Kaufman, for the appellant

Michael Hebert, for the respondent

Heard and released orally: December 8, 2011

On appeal from the judgment of Justice Roydon Kealy of the Superior Court of Justice dated June 14, 2011.

ENDORSEMENT

[1] This is an appeal from an order made pursuant to Rule 59.06, reopening proceedings that had been terminated by a consent dismissal. The respondent argues that this appeal should have been brought to the Divisional Court, with leave, as the order reopening the action did not finally determine the rights of the parties.

[2] The appellant submits that because the motion judge’s reasons indicate that he set aside the consent dismissal, in the exercise of a discretionary power to relieve against issue estoppel, rather than pursuant to Rule 59.06, his decision finally determined the rights of the parties on that issue and therefore an appeal lies to this court.

[3] While we agree that a change in jurisprudence is not a new fact for the purposes of Rule 59.06, and while both parties agree that Rule 59.06 is the gate through which the respondent/plaintiff must pass in order to reopen the action, it is the nature of the motion and the order made, not the reasons, which govern whether this matter is interlocutory or final. An order made pursuant to Rule 59.06 reopening a matter because of facts arising or discovered after it was made is, by its nature, interlocutory as it does not finally determine the rights of the parties.

[4] Accordingly, the appeal is dismissed without prejudice as a result of this decision, and this appeal to the right of the appellant/defendant if so advised, to seek leave from the Divisional Court. Costs to the respondent are fixed in the amount of $10,000 inclusive.

“D. O’Connor A.C.J.O.”

“G.J. Epstein J.A.”

“G. Pardu J. (ad hoc)”