Court of Appeal for Ontario

Date: 2022-07-05 Docket: M53443 (C67826) Feldman, Pepall and Tulloch JJ.A.

Between:

Mark Render Plaintiff (Appellant/Moving Party)

and

ThyssenKrupp Elevator (Canada) Limited Defendant (Respondent/Responding Party)

Counsel: Chris Foulon and Behzad Hassibi, for the moving party David G. Cowling and Alexander J. Sinclair, for the responding party

Heard: In writing

Reasons for Decision

[1] The moving party, who was the appellant on the appeal, moves for an order to amend or vary the decision of the court on the appeal, following release of the reasons for judgment on April 20, 2022: Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310.

[2] Although the moving party did not claim his statutory Employment Standards Act, 2000, S.O. 2000, c. 41 benefits in his pleadings, nor did his counsel ask for them in his closing at trial, he raised the ESA in his opening statement at trial and asked for the benefits on appeal. This court held that he would not be precluded from an award of ESA entitlements, if they had been proved.

[3] At para. 82, this court found:

The appellant proved his entitlement to eight weeks of termination pay. However, as we were not directed to anywhere in the record of evidence that the respondent has a $2.5 million payroll, as required under s. 64(1)(b), the court is not in a position to award the requested 26 weeks of severance pay.

[4] The moving party has now filed a factum that picks out a number of places in the trial transcript where a number of employees and their approximate salaries are referred to, and from those, now asks the court to infer that the respondent had a $2.5 million payroll.

[5] Rule 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, 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.

[6] The moving party’s materials do not specify which sub-rule of r. 59.06 he relies on. In any event, he has not brought himself within either r. 59.06(1) or r. 59.06(2).

[7] Rule 59.06(1) refers to an accidental slip or omission. There was no accidental slip or omission in this case. Had the moving party wished to rely on the passages he now identifies, he could have done so in his factum on the appeal or in oral argument. He did not do so. It is not the role of the court to scour the record for evidence not relied on by the parties.

[8] Rule 59.06(2) also does not apply to this case. The moving party has not pointed to any fraud or facts arising or discovered after the release of this court’s decision. Rule 59.06(2)(d) similarly has no application. The appellant is not asking for “other relief than that originally awarded”. He is asking for the court to grant relief that it considered and declined to grant.

[9] A motion to reconsider a decision is not an opportunity to reargue the appeal or to “recast or revisit issues that [the party] has already argued”: McDowell v. Barker, [2014] O.J. No. 2363 (C.A.), at paras. 9-11; Hoang v. Mann Engineering Ltd., 2015 ONCA 838, at paras. 13-15.

[10] In its responding materials, the responding party brought forward fresh evidence, without seeking leave to do so, that the moving party had not served the Director of Employment Standards in accordance with s. 8(2) of the ESA. Without bringing a motion, the responding party asked the court to rescind part of its order based on the fresh evidence.

[11] The above cases apply equally to the respondent.

[12] The motion is dismissed with no costs to either party.

“K. Feldman J.A.” “S.E. Pepall J.A.” “M. Tulloch J.A.”