Court of Appeal for Ontario

Citation: Meridian Credit Union Limited v. Baig, 2016 ONCA 942 Date: 2016-12-15 Docket: M46639, C59249

Between:

Meridian Credit Union Limited Plaintiff (Respondent)

and

Ahmed Baig Defendant (Appellant)

Before: Strathy C.J.O., LaForme and Huscroft JJ.A.

Counsel: Milton A. Davis, for the appellant J. Anthony Caldwell, for the respondent

Heard: In writing

Motion for reconsideration of a decision of this court, dated February 25, 2016, with reasons reported at 2016 ONCA 150, 394 D.L.R. (4th) 601, dismissing the appeal from the order of Justice Frederick L. Myers of the Superior Court of Justice, dated August 15, 2014, with reasons reported at 2014 ONSC 4717, 16 C.B.R. (6th) 291.

Endorsement

Introduction

[1] On February 25, 2016, this court dismissed Baig’s appeal and upheld the motion judge’s decision that held Baig liable for fraudulent misrepresentation in an amount to be determined by the Superior Court of Justice: Meridian Credit Union Limited v. Baig, 2016 ONCA 150, 394 D.L.R. (4th) 601. Some eleven months later, Baig seeks leave to re-open his appeal and have this court reconsider its decision.

[2] Baig did not file an affidavit on this motion. However, the notice of motion explains that, on April 22, 2016, Baig applied for leave to appeal this court’s decision to the Supreme Court of Canada. The notice then states that Baig has filed a motion for the Supreme Court to hold his leave application in abeyance pending this motion’s outcome. Baig does not explain when he formed the intention to ask this court to re-open his appeal here, rather than merely appeal this court’s decision to the Supreme Court. We note that the Supreme Court has granted Baig’s request to hold his leave application in abeyance: Baig v. Meridian Credit Union Limited, [2016] S.C.C.A. No. 173. However, this development does not affect our opinion of this motion.

Issues

[3] In his notice of motion to this court, Baig lists the grounds in support of his request to re-open the appeal by repeating some of the background of the case and specific reasons for this court’s decision. In summary, there is one ground that we garner from the notice, namely, the reasons for this court’s decision disclose a misapprehension or misapplication of a material piece of evidence. Or, as Baig puts it in paras. 35 and 36 of his factum:

In its reasons, the Court of Appeal concludes that the misrepresentations found in the closing documents caused the Receiver to seek and obtain court approval of the sale.

[I]t is not possible that the closing documents caused the Receiver to seek and obtain court approval of the sale.

[4] Baig also raises two issues that, he claims, we must consider on this motion. First, can this motion proceed when Baig already has filed an application for leave to appeal to the Supreme Court of Canada? And second, should we permit Baig to re-open his appeal?

Discussion

[5] We need not consider the first issue because Baig has failed to demonstrate an arguable basis for re-opening his appeal. We reach this conclusion for several reasons.

[6] The first observation that we would make is that Baig’s reliance on r. 59.06 of the Rules of Civil Procedure is misplaced. Rule 59.06(1) addresses the jurisdiction of the court to amend an “order” where it contains “an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate”. Rule 59.06(2) allows a party to move for the court to modify or set aside an order under particular conditions; to suspend the operation of an order; to carry an order into operation; or to obtain relief other than that originally awarded. All of these grounds for re-opening an appeal concern orders, whereas Baig alleges errors in this court’s reasons; no order has yet been taken out.

[7] Nevertheless, generally speaking, there is no jurisdictional impediment to this court reconsidering its decision when no order has been taken out and entered: Mujagic v. Kamps, 2015 ONCA 360, 125 O.R. (3d) 715, at para. 5. However, a party seeking to re-open an appeal after the appeal decision has been rendered faces “a high hurdle”: Chuang v. Toyota Canada Inc., 2016 ONCA 852, at para. 7. The court will re-open an appeal prior to the entering of the order “sparingly and only where it is clearly in the interests of justice”: Mujagic, at para. 12. Baig has not raised the kind of “rare circumstance” where “the interests of justice” would require us to withdraw our reasons and rehear the case on the merits: Aviva Canada Inc. v. Pastore, 2012 ONCA 887, 300 O.A.C. 355, at para. 9.

[8] The arguments that Baig makes on this motion were advanced — in writing and in oral argument — and considered, both on the originating motion and on appeal. In both instances they were rejected. The losing party’s disagreement with the court’s reasons is not a “rare circumstance” in appellate litigation. As we have mentioned, Baig already has filed an application for leave to appeal to the Supreme Court of Canada. Such an application is the normal and proper recourse for a party who wishes to challenge this court’s reasons.

Conclusion

[9] For the reasons given, the motion is dismissed with costs to the respondent. If the parties cannot agree on the amount, they may make written submissions of three pages or less within 14 days of the release of these reasons.

“G.R. Strathy C.J.O.”

“H.S. LaForme J.A.”

"Grant Huscroft J.A."