Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210310 DOCKET: M51881 (C68024)

Doherty, Hoy and Jamal JJ.A.

BETWEEN

Theresa Yogaranie Paulpillai in her capacity as the Estate Trustee for the Estate of Richmond Gabriel Paulpillai, Theresa Yogaranie Paulpillai and Maneharran Paulpillai Applicants/Respondents (Responding Parties)

and

Joshua Akanni Yusuf, Meerc Inc. , All Saints University Limited, All Saints University School of Medicine Limited, Avonelle Pinard, David Bruney, Frankie Bellot and Medical Education Examination Resource Center Respondents/Appellants (Moving Parties)

Counsel: Osborne G. Barnwell, for the moving parties Edwin G. Upenieks and Angela H. Kwok, for the responding parties

Heard: in writing

Reasons for Decision

[1] On October 19, 2020, the court released its decision in respect of two motions before it. The court granted Theresa Paulpillai and her son Maneharran Paulpillai’s motion to quash the appeal in C68024 on the basis that the order under appeal was interlocutory, not final, and thus any appeal lay to the Divisional Court. Because the court lacked jurisdiction over the appeal, it dismissed Joshua Akanni Yusuf and the other respondents’ motion to stay the order under appeal, without prejudice to the right to seek leave to appeal to the Divisional Court and renew the stay motion before that court.

[2] The respondents had also filed a notice of motion for leave to appeal to the Divisional Court and, following the release of the court’s decision of October 19, 2020, they proceeded with that motion before the Divisional Court. On February 1, 2021, the Divisional Court released an endorsement, dated January 29, 2021, dismissing their motion for leave to appeal.

[3] The respondents now move before this court, under r. 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking a reconsideration of the court’s decision of October 19, 2020. Mr. Yusuf states that, on reading the court’s decision he felt that that the court had mischaracterized something in the factual matrix, had not looked at the respondents’ materials, and had misunderstood the appropriate elements to be considered in determining whether an order is interlocutory or final. The respondents also seek to advance a new argument, namely that the judge at first instance showed a preference to the Paulpillais because they were represented by a White lawyer, whereas the respondents’ counsel is Black.

[4] The respondents’ reliance on r. 59.06 is misplaced. The grounds it sets out for re-opening an appeal concern orders, whereas the respondents allege errors in the court’s reasons: Meridian Credit Union v. Baig, 2016 ONCA 942, at para. 6. No order has yet been issued and entered with respect to the court’s decision of October 19, 2020.

[5] Finality in litigation is important. While the court can reconsider its decision when no order has been taken out and entered, it will only do so sparingly and where the interests of justice would require it to withdraw its reasons and rehear the case on its merits: Meridian Credit, at para.7.

[6] The interests of justice do not require the court to withdraw its reasons and rehear the motions that were the subject of its decision of October 19, 2020.

[7] Approximately four months have elapsed since that decision was released. In the interim, the respondents accepted that decision and proceeded to seek leave before the Divisional Court. Judicial time and resources were expended and, presumably, the Paulpillais incurred expenses as a result. For that reason alone, it is not in the interests of justice for this court to reconsider its decision. Further, on February 16, 2021 the respondents took a further step, serving a Notice of Motion for leave to Appeal the Divisional Court’s decision to this court. (That Notice of Motion is not before this panel.)

[8] In their reply factum, the respondents advise that they raised the issue of anti-Black racism on their motion for leave to appeal to the Divisional Court. While an important issue, the issue of anti-Black racism is not relevant to the question of whether the order under appeal was interlocutory or final which was determined by this court. Perhaps this is why the respondents raised the issue before the Divisional Court, and not this court.

[9] The respondents seek an opportunity to re-argue their position. As the court noted in Meridian, at para. 8, “[t]he losing party’s disagreement with the court’s reasons is not a “rare circumstance” in appellate litigation” and an application for leave to appeal to the Supreme Court of Canada “is the normal and proper recourse for a party who wishes to challenge this court’s reasons.” In fact, the respondents acknowledge that this is the normal recourse but argue that it would have been time consuming and expensive to do so and this warrants the court now reconsidering its decision. We reject this argument.

[10] Accordingly, the respondents’ motion is dismissed, with costs to the Paulpillais. If the parties cannot agree on the amount, they may make written submissions of not more than three pages within 14 days of the release of these reasons.

“Doherty J.A.” “Alexandra Hoy J.A.” “M. Jamal J.A.”