COURT FILE NO.: 2-2015AP

DATE: 2015/08/11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HURON-PERTH CHILDREN’S AID SOCIETY

(Applicant)

And:

R.C.K. and C.G.C.

(Respondents)

BEFORE: Justice I. F. Leach

COUNSEL:
A.M. Tymec for the Applicant (Respondent in appeal)

Philip B. Cornish for the Respondent R.C.K. (Appellant)

No one appearing for the Respondent C.G.C.

T. Macdonald, for the Office of the Children’s Lawyer, (representing the child J.K.)

HEARD: August 6, 2015

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.

ENDORSEMENT

[1] On May 11, 2015, I heard a motion by the applicant and respondent in appeal herein, (the Huron-Perth Children’s Aid Society), for an order dismissing the appeal herein by the respondent R.C.K., on the ground of delay.

[2] On May 12, 2015, (the following day), I released my decision, granting the requested order dismissing the appeal. My decision and reasons have since been reported as Huron-Perth Children’s Aid Society v. R.C.K., [2015] O.J. No. 2395 (S.C.J.).

[3] R.C.K. now brings this further motion, in the otherwise dismissed proceeding before this court, formally requesting:

• an order setting aside my order of May 11, 2015, (sic), “pursuant to Rule 37.14 and Rule 59(2)” (sic);

• an order “granting a re-hearing (sic) of the appeal”;

• costs of this motion and the motion on May 11, 2015; and

• such further and other relief the court may deem just.

[4] In the course of submissions, it was made clear that the relevant notice of motion was intended to refer:

• to my order of May 12, 2015;

• to Rule 59.06(2), rather than the non-existent Rule 59(2); and

• to a “hearing” of the appeal rather than a re-hearing.

[5] The relevant notice of motion is dated June 23, 2015, (i.e., six weeks after release of my decision dismissing the appeal), and initially indicated that the motion would be heard on “a date to be assigned by the Trial Co-ordinator”.

[6] Although the notice of motion and supporting affidavit sworn by R.C.K. were both dated June 23, 2015, the affidavits of service indicate the motion material was not formally served on the Society or the child’s lawyer until July 1, 2015. (The responding material filed by the child’s lawyer indicates that the motion nevertheless was received on June 29, 2015.)

[7] The notice of motion subsequently was amended to indicate a return date of August 6, 2015. During oral submissions, R.C.K.’s counsel Mr Cornish indicated the August 6th hearing date was chosen and set by the Goderich trial co-ordinator, (although the trial co-ordinator herself subsequently disputed that assertion when it was brought to her attention by other court staff who were present in my courtroom when the assertion was made).

Background and further evidence

[8] The circumstances giving rise to my order dismissing the appeal for delay are set forth in detail in my earlier decision, and therefore will not be repeated here.

[9] The parties nevertheless filed further affidavit evidence in relation to this further motion.

[10] In the supporting affidavit sworn by R.C.K. on June 23, 2015:

• she emphasizes her view that the interim order she wishes to appeal was inappropriate, as the court below considered affidavit evidence containing “substantial hearsay”, with a great deal of “unverified third party innuendo, speculation and error”;

• she explains that she agreed “to initiate a notice of appeal” with the assistance of Mr Cornish, but without having the benefit of a financial retainer that she hoped to obtain, (but subsequently was unable to obtain), through Legal Aid;

• she describes numerous “overwhelming” circumstances in her life, (e.g., the birth and apprehension of additional children, an extended hospital stay, and criminal proceedings), as reasons why she admittedly did “not keep very good contact” with Mr Cornish; and

• she repeats information, provided to her by Mr Cornish, emphasizing why he was unable to appear before Justice Hockin on April 29, 2015, that the motion was only “to be spoken to” on May 11, 2015, and that it “was wrong for the Society to push for it to proceed and for the Court to allow or even force it to proceed” on that date.

[11] The Society filed responding affidavit evidence which included confirmation, (supported by the details of texts exchanged between a Society worker and R.C.K.), that R.C.K. knew as of May 13, 2015, that her appeal had been dismissed.

[12] The child’s lawyer filed responding affidavit evidence, which included information outlining how the underlying child protection proceeding had moved forward following my order on May 12, 2015. In particular:

• The settlement conference proceeded as scheduled on May 29, 2015, before Justice Caspers. It was attended by R.C.K., and her counsel Mr Cornish. The matter then was adjourned to June 12, 2015, to be spoken to.

• On June 12, 2015, the matter was put over to July 7, 2015, for argument of a motion by the Society seeking an order placing the child in the temporary care and custody of his father, (i.e., instead of foster care). A timetable was set for the filing of the Society’s material and responding material.

• On July 7, 2015, after argument, and for reasons orally delivered, Justice Brophy granted the order requested by the Society, effective the following day, placing the child in the temporary care and custody of his father, (with provision for access to his mother, R.C.K.). In the same ruling, Justice Brophy scheduled a trial management conference for August 21, 2015. That was done in anticipation of available trial dates, in the Ontario Court of Justice, as soon as October and November of this year.

[13] The affidavit evidence filed by the child’s lawyer also confirms that, between the release of my decision and making of my order on May 12, 2015, and the hearing before me on August 6, 2015, there were no less than nine separate motion and conference hearing dates on which a judge of the Superior Court of Justice was present in Goderich. (The first such hearing date after May 12, 2015, was on May 21, 2015.)

[14] The formal copy of my order of May 12, 2015, contained in the court file and bearing the court’s seal, indicates that the order was formally entered on May 26, 2015.

Analysis

[15] With the above in mind, I turn now to the various arguments counsel for R.C.K. advanced in an effort to persuade me that my order of May 12, 2015, should be set aside or varied.

REQUEST FOR GENERAL RECONSIDERATION OF EARLIER DECISION

[16] With respect, it seemed to me that many of the submissions made by Mr Cornish in support of the current motion were merely general attempts to revisit and pursue arguments already advanced unsuccessfully before me on May 11, 2015.

[17] For example:

• Mr Cornish once again argued that it would be wrong to “over-emphasize” reliance on what was said to be merely a “technical” procedural failure, (i.e., the ongoing failure to provide and file proof of a transcript being ordered to pursue and perfect the appeal), to deny his client a hearing of her desired appeal on its merits.

• Mr Cornish once again indicated during the course of his oral submissions that the transcript has been ordered, (despite ongoing failure to file any documentary or affidavit evidence providing confirmation in that regard), and again suggested that indication should be sufficient.

• Mr Cornish once again argued that there was in fact no established prejudice or urgency that warranted a substantive hearing of the Society’s motion on May 11, 2015.

[18] To the extent such submissions simply renew the same arguments advanced before me on May 11, 2015, and ask me to reconsider my earlier decision in that regard, it seems to me that this falls outside the scope of the limited jurisdiction I now have, in the current context.

[19] In that regard, numerous authorities have confirmed that the court has broad discretion to reconsider a decision before an order or judgment is formally entered. See, for example: Holmes Foundry Ltd. v. Point Edward, 1963 197 (ON CA), [1963] 2 O.R. 404 (C.A.); Saginur v. Sbrocchi, [1979] O.J. No. 3937 (Master); and Griffin v. Dell Canada Inc., [2009] O.J. No. 1592 (S.C.J.), affirmed 2010 ONCA 29, [2010] O.J. No. 177 (C.A.), leave to appeal refused [2010] S.C.C.A. No. 75.

[20] However, as noted above, a formal order in relation to my earlier decision has been entered, (on May 26, 2015), well before the bringing of this motion.

[21] I therefore now lack jurisdiction to simply revisit and reconsider the merits of my earlier decision in the broad manner effectively suggested by Mr Cornish. Any setting aside, variation or amendment of my earlier order must be squarely based on the more limited jurisdiction provided in the Rules of Civil Procedure.

RULE 37.14(1)

[22] In that regard, Mr Cornish relied in large measure on Rule 37.14(1), which reads as follows:

37.14 (1) A party or other person who,

(a) is affected by an order obtained on motion without notice;

(b) fails to appear on a motion through accident, mistake or insufficient notice; or

(c) is affected by an order of a registrar,

may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.

[23] In my view, however, the situation before me does not fall within the provisions of Rule 37.14(1).

[24] My order of May 11, 2015, was not “an order obtained on motion without notice”. To the contrary, there was formal, proper and timely service of not only the Society’s original motion material, but of successive written confirmation forms, from both the Society and the child’s lawyer, indicating that both intended to ask the court to deal with “all issues” raised by the motion, (first on April 29, 2015, and then on May 11, 2015).

[25] In particular, the Society and the child’s lawyer each served a formal confirmation on May 7, 2015, indicating that each would be asking the court to proceed with hearing of the Society’s motion on “all issues” on May 11, 2015.

[26] Mr Cornish says this should not be taken as any notice to him and his client that the motion might proceed on its merits on May 11, 2015. He says he was entitled to rely instead on the prior indication in Justice Hockin’s endorsement of April 29, 2015, (said to be binding on the parties and the court), that the motion would only “be spoken to” on May 11, 2015.

[27] Mr Cornish went so far as to accuse counsel for the Society and the child’s lawyer of “sharp practice” in asking the court to proceed with a substantive hearing of the motion on May 11, 2015, in the face of that earlier endorsement by Justice Hockin.

[28] For numerous reasons, I fundamentally disagree with these assertions.

[29] First, I find it difficult to accept that Mr Cornish was relying on Justice Hockin’s endorsement that the matter was only “to be spoken to” on May 11, 2011. When he appeared before me on that earlier date, Mr Cornish candidly acknowledged that he had looked at the endorsement only “fleetingly”, and was not even aware of its indication that the motion was going to be before the court again on May 11, 2015.

[30] Second, whatever Justice Hockin’s endorsement may have said, both the Society and the child’s lawyer subsequently gave formal, proper and timely notice of their intention to ask the court for a substantive hearing of the Society’s motion when the matter came back before the court on May 11, 2015. It seems those two formal motion confirmation forms and corresponding notice also failed to register with Mr Cornish. However, that does not detract from the reality that proper notice was given.

[31] Third, I reject the suggestion that the court’s earlier endorsement somehow precluded any consideration, on May 11, 2015, of the request being made by the Society and the child’s lawyer for a substantive hearing of the motion on the basis of urgency. In my view, the court must retain the ability to control its own process, and that includes the ability to at least entertain a request by parties to have a matter substantively determined on the basis of urgency, (especially in relation to a child protection proceeding where, as noted in my earlier decision, delay in process is inherently prejudicial to the best interests of a child). That certainly is not to say that such a request will always or frequently be granted, especially if the party asking to proceed is unable to substantiate claims of urgency. For present purposes, however, the point is that the Society and the child’s lawyer had the right to ask the court to proceed with a substantive hearing of the motion on May 11, 2015, and such a hearing therefore was a possibility. Mr Cornish and his client were provided with formal, timely and proper notice in that regard.

[32] The order of May 12, 2015, accordingly was not “an order obtained on motion without notice”, and Rule 37.14(1)(a) therefore does not apply.

[33] In my view, this also is not a situation falling within Rule 37.14(1)(b), which deals with situations where a party “fails to appear” on a motion. In that regard:

• R.C.K.’s counsel of record self-evidently did appear at the return of the motion on May 11, 2015; and

• although Mr Cornish emphasized repeatedly that R.C.K. was not present at the hearing on May 11, 2015, in my view her presence clearly was not required, given her formal representation by counsel of record.

[34] In my view, Rule 37.14(1)(c) also clearly does not apply, as R.C.K. may be “affected” by my order of May 11, 2015, but it was not “an order of a registrar”.

[35] In the result, none of the preconditions for application of Rule 37.14 are engaged in the particular circumstances of this case.

[36] Even if they were, in my view there also has been no compliance with the further Rule 37.14 requirements that an aggrieved party move to set aside or vary the relevant order by a notice of motion that:

• “is served forthwith after the order comes to the person’s attention”; and

• “names the first available hearing date that is at least three days after service of the notice of motion”.

[37] In this case, my decision and order dismissing the appeal were communicated to counsel on May 12, 2015, and R.C.K. confirmed that she was aware of the order no later than May 13, 2015. Yet the notice of motion was not prepared until June 23, 2015, (six weeks later), and not formally served until July 1, 2015, (seven weeks later).

[38] In my view, a delay of 6-7 weeks in preparing and serving such a notice of motion, after learning of the relevant decision and order, cannot properly be viewed as compliance with the Rule 37.14 requirement that a notice of motion pursuant to that rule must be served “forthwith”.

[39] In Goderich alone, that delay of 6-7 weeks meant that R.C.K. and her counsel let at least 3-4 Superior Court of Justice hearing dates go by before preparation and service of the notice of motion.

[40] Moreover, once prepared, the relevant notice of motion also failed to name the first available Superior Court of Justice hearing date at least three days after service of the notice of motion.

[41] Again, the notice of motion was formally served on July 1, 2015, according to the moving party’s own affidavits of service. The next Superior Court of Justice hearing date available thereafter in Goderich, after at least three clear days of service, was July 8, 2015. However, rather than specifying that date, the notice of motion left the return date unspecified and effectively open ended.

[42] In the result, failure to abide by the timing requirements of Rule 37.14(1) produced an initial delay of 6-7 weeks before the notice of motion was served, followed by a further one month delay before the motion was ever brought before the court.

[43] Mr Cornish sought to minimize the significance of those Rule 37.14 timing failures and resulting delays by emphasizing:

• that he was focused on bringing the matter back before me personally; and

• that, as far as he knew, my first known sitting in Goderich, after release of my earlier decision and order, would be on August 6, 2015.

[44] However, that position is problematic for a number of reasons.

[45] First, the position does not explain, in any way, why preparation and service of the notice of motion were delayed initially for 6-7 weeks.

[46] Second, although it may be preferable to have such a Rule 37.14(1) motion heard by the same judge who made the original order, sitting in the same venue, Rule 37.14(4) makes it clear that such a motion to set aside or vary an order may be made “to the judge who made it, at any place”, or “to any other judge, at a place to be determined in accordance with rule 37.03 (place of hearing of motions)”. [Emphasis added.] Coupled with the express timing requirements of Rule 37.14(1), the rule as a whole makes it clear, I think, that expedience generally is to take precedence over venue or prior familiarity, at least insofar as motions pursuant to Rule 37.14(1) are concerned. Mr Cornish and his client therefore could have taken steps to have the motion heard by me at an earlier date in a venue other than Goderich, or to have the motion heard by another judge at an earlier date in Goderich.

[47] Third, even if it was considered preferable for me to hear this new motion, pursuit of that preference was not precluded by or incompatible with efforts to comply with the express timing requirements of Rule 37.14(1). In particular, Mr Cornish could have prepared and served the notice of motion forthwith after May 12, 2015, naming the first hearing date in Goderich that was more than three clear days after service of the notice of motion, before then making a formal request, at the first indicated return date, for adjournment of the motion to the first date when I might be able to hear it in Goderich. Responding parties then would have had an opportunity to address whether such an adjournment was appropriate; e.g., having regard to the fact that there were pressures to have the underlying child protection proceeding move forward, in ways that might not be easily “undone”.

[48] In my opinion, that last mentioned consideration provides an example of why Rule 37.14(1) generally emphasizes that a motion of this nature must be brought before the court promptly.

[49] In particular, a party seeking to invoke the rule generally must do so as soon as possible, given the reality that “time marches on” in relation to other events which understandably may follow the making of an order that otherwise appears to be final.

[50] That reality is on display in this case, where the court below now has proceeded with a settlement conference, and the making of a further interim temporary care and custody order placing the young boy with his father.

[51] Those are developments which effectively may have to be reversed and undone, or done over, if the order of May 12, 2015, dismissing the appeal, is now belatedly revisited.

[52] Moreover, even if court orders can be formally reversed, and hearings may be held again, such formal litigious changes seem unlikely to “undo” the practical impact of such reversals on the life of the young boy whose fate is being determined by these various court proceedings.

[53] For all these reasons, I do not think Rule 37.14 can or should be invoked, in the particular circumstances of this case, to set aside or vary my order of May 12, 2015.

RULE 59.06

[54] As noted above, Mr Cornish also asked that my earlier order be set aside or varied pursuant to Rule 59.06(2).

[55] In particular, reliance was placed on Rules 59.06(2)(a) and 59.06(2)(d), which read as follows:

59.06 (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; … or

(d) obtain other relief than that originally awarded,

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

[56] The authorities suggest a number of general principles to be borne in mind in relation to Rule 59.06(2), which include the following:

• The court has discretion to reopen a motion to prevent a miscarriage of justice, where the integrity of the process is at risk or a principle of justice is at stake that requires reconsideration of the matter. This includes, but is not limited to, preventing a fraud on the court, the deliberate misleading of the court, and/or abuse of the court’s process.[^1]

• While a court therefore may re-open a motion or other matter when it is just to do so, for such reasons. However, the court should do so only “sparingly”, in “exceptional circumstances”, and “with the greatest of care”.[^2]

• In exercising its discretion to re-open a motion based on “new’ evidence, after an order has been made, the court will ask:

o whether the evidence probably would have changed the result had it been presented to the court at first instance; and

o whether the evidence could have been obtained, by the exercise of reasonable diligence, before the original hearing and disposition of the motion.[^3]

• It may be preferable for the judge whose order is at stake to hear a Rule 59.06(2) motion, as that judge already is familiar with all of the evidence that led to the original order, and is well-suited to expeditiously determine whether an alleged fraud or new evidence requires the original order to be set aside. However, as with motions brought pursuant to Rule 37.14(1), the law does not require motions brought pursuant to Rule 59.06(2)(a) to be brought before the judge who made the original order. Rule 37.14(4) instead similarly permits such motions to be heard by “the judge who made it, at any place”, or “to any other judge, at a place determined in accordance with Rule 37.03”.[^4]

[57] With the above principles in mind, I turn to the potential application of Rule 59.06(2) to the circumstances of this particular case.

[58] In that regard, I begin with the argument by Mr Cornish that efforts by the Society and child’s lawyer to proceed substantively with the Society’s motion on May 11, 2015, (in the face of Justice Hockin’s earlier endorsement contemplating that it would merely “be spoken to” on that date), were tantamount to “fraud”; i.e., therefore bringing the matter within that aspect of Rule 59.06(2)(a).

[59] I disagree completely with that characterization.

[60] Alternative general definitions of “fraud” are set forth in Black’s Law Dictionary, (9th ed.), and include:

• “a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment”;

• “a misrepresentation made recklessly without belief in its truth to induce another person to act”; and

• “unconscionable dealing”, (although the focus in that regard usually is on contract law, and situations involving “the unfair use of the power arising out of the parties’ relative positions and resulting in an unconscionable bargain”).

[61] The essence of such definitions is clearly deliberate or reckless deception, in order to gain an unfair advantage.

[62] For the reasons outlined above, I think it was entirely permissible and proper for the Society and the child’s lawyer to ask the court to proceed with the Society’s motion on May 11, 2015, after having given timely, formal, written notices to Mr Cornish of their shared intention to make and pursue that request. There was absolutely nothing that was false, concealed, deceptive or otherwise untoward about their stated intentions and conduct in that regard.

[63] In my view, the provisions of Rule 59.06(2)(a) relating to fraud accordingly have no application whatsoever to the situation before me. The allegations advanced in that regard were entirely unwarranted.

[64] I turn next to the aspects of Rule 59.06(2)(a) which permit an order to be set aside or varied on the ground of “facts arising or discovered after it was made”.

[65] In that regard, I turn first to a consideration of whether the “new” evidence filed in support of the current motion would have changed the result, had it been presented to me when the Society’s motion to dismiss the appeal for delay was argued on May 11, 2015.

[66] Full details of the “new” evidence tendered in support of the current motion are set out in the affidavit sworn by R.C.K. on June 23, 2015.

[67] I have reviewed and have considered that affidavit in its entirety, and my general description and summary of its contents, (set forth in paragraph 10 of these reasons), should not suggest otherwise.

[68] On balance, I find that the “new” evidence would not have changed the result, had it been before me during argument of the original motion, and/or before the rendering of my decision on May 12, 2015.

[69] In saying that, I am mindful of the fact that the sworn evidence now supplied by R.C.K. addresses at least some of the noticeable “gaps” I considered when determining whether or not to extend the time for R.C.K.’s compliance with the provisions of Rule 38 of the Family Law Rules.

[70] For example, R.C.K. now confirms under oath that she has always wished to undertake an appeal of Justice Brophy’s decision, and provides confirmation of the reasons, (already informally conveyed to the court by Mr Cornish on May 11, 2015), why she was unable to “keep very good contact” with her lawyer. She also provides at least some information, (albeit in a very broad way), as to why she feels her appeal had merit.

[71] In my view, however, the considerations addressed by the “new” evidence still would not have changed, on balance, my ultimate decision.

[72] Without limiting the generality of the foregoing, the motion to dismiss for delay centred primarily on the ongoing and unexplained failure of R.C.K. and her counsel to comply with Rule 38(12), requiring the filing of proof that a transcript of the proceeding below has been ordered for purposes of the appeal, and the reality that failure to move the appeal forward in a timely way was threatening real prejudice to the interests of the young boy at the heart of the underlying child protection proceeding.

[73] In my view, the “new” evidence does not address or explain, in any way whatsoever, the ongoing failure to comply with Rule 38(12).

[74] As noted in my earlier decision:

• that failure cannot be treated as a mere “technicality” that can or should be overlooked, (despite Mr Cornish’s renewed arguments to the contrary);

• the securing and filing of such proof is not something that required the instructions or involvement of R.C.K., and is something Mr Cornish readily could have done if such proof exists, (which makes the evidence of R.C.K. as to her “overwhelming” experiences and lack of contact with Mr Cornish largely tangential and irrelevant in relation to the fundamental failure that brought the matter before the court); and

• it was astounding to me that appellate counsel, having been provided with more than adequate notice of the failings identified in the Society’s motion material, still had taken no steps whatsoever to file, even belatedly, the proof of transcript ordering required by Rule 38(12).

[75] Despite the intervening passage of almost two additional months, the “new” evidence placed before the court on this motion remarkably still fails to tender any documentary or sworn affidavit evidence confirming that the relevant transcript of the proceedings below has in fact been ordered. (The affidavit sworn by R.C.K. does not mention or address, in any way, the ordering of a transcript.)

[76] That failure is even more surprising in light of the further and more detailed unsworn statements and assurances made by Mr Cornish, (during the course of oral submissions on August 6, 2015), that he now has spoken again with the relevant reporter and obtained an indication that a draft of the ordered transcript has been prepared, with its finalization simply waiting on Justice Brophy’s review and approval of the draft.

[77] If that is indeed the case, I fail to understand why the proof required by Rule 38(12) has not been obtained, served and filed with opposing counsel and the court well before now.

[78] As noted in my earlier decision, the proof required by Rule 38(12) is important, for reasons that include the usual provision of information of particulars as to whether, when and how a transcript was ordered. That in turn assists parties and the court in determining whether or not there has been a delay, the extent of any delay, and whether that delay raises concerns that militate against an extension of time for compliance with the rules concerning the timely perfection and pursuit of appeals.

[79] However, the “new” evidence really does nothing to address the primary failing which prompted the Society to move for dismissal of the appeal on the ground of delay, and all the consequential uncertainties and concerns in that regard remain.

[80] More to the point, for present purposes: the same primary failing and associated concerns would have remained had the same “new” evidence been before me on May 11, 2015.

[81] Similarly, the “new” evidence also does nothing, (and would have done nothing on May 11, 2015), to address the concern that unexplained and indeterminate delay in advancement of the appeal was inherently prejudicial to the best interest of the child, and threatening to substantially delay progress of the underlying child protection proceeding.

[82] In my view, the “new” evidence tendered in support of the current motion therefore fails to satisfy what has been described as the first test for setting aside or varying an order based on fresh evidence. The “new” evidence probably would not have changed the result, had it been provided to me when the original motion was argued and decided.

[83] As the Supreme Court of Canada noted in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., supra, at paragraph 65, if fresh evidence probably would not have changed the result at first instance, it is unnecessary to examine whether the evidence could have been obtained by the exercise of reasonable diligence.

[84] In my view, however, the “new” evidence filed in support of the current motion was obtainable by the exercise of reasonable diligence before May 11, 2015.

[85] In particular, a review of R.C.K.’s affidavit makes it clear that all of the information it contains was known by R.C.K. and/or her counsel before May 11, 2015. The problem was not that the information was unknown or reasonably incapable of being discovered, with the exercise of reasonable diligence.

[86] To the contrary, it was known, and it therefore was “obtainable”.

[87] From the perspective of R.C.K. and her counsel, the real problem is that they failed to put such available and obtainable evidence before the court on May 11, 2015, (i.e., by preparing, serving and filing a similar short affidavit before then), notwithstanding the fact that the Society’s motion had been served almost a month earlier.

[88] In my opinion, that is not the sort of problem or concern intended to be addressed by authorities dealing with the filing and consideration of fresh evidence said to have been “unobtainable” at the time of an earlier hearing.

[89] For the above reasons, I therefore do not accept that application of Rule 59.06(2)(a) justifies setting aside or varying my earlier order.

[90] That leaves, for consideration, the residual reliance Mr Cornish placed on Rule 59.06(2)(d), which allows a party to “obtain other relief than that originally awarded” at the earlier hearing.

[91] However, when pressed for further information in that regard, during the course of oral submissions, Mr Cornish was unable to provide details as to how and why reliance was being placed on that particular sub-rule.

[92] At best, it seemed to me that Mr Cornish was saying that Rule 59.06(2)(d) applied because R.C.K. generally now was seeking an order other than the one I granted on May 12, 2015; i.e., an order dismissing rather than granting the relief requested by the Society’s original motion.

[93] In my view, Rule 59.06(2)(d) was not intended to confer such an open-ended and unfettered discretion to review and reverse an earlier order; i.e., in response to a simple request for relief completely inconsistent with the relief originally granted.

[94] Such an interpretation would make any and all orders amenable to revisitation and review simply because a litigant did not like the original outcome.

[95] I think it more likely that Rule 59.06(2)(d) instead contemplated requests for relief, “other … than that originally awarded”, which is not inherently incompatible or inconsistent with the court’s earlier disposition; e.g., to vary a judgment of specific performance so as to award damages or compensation instead.[^5]

[96] In this case, the relief sought by R.C.K. pursuant to the current motion is entirely inconsistent with the relief granted in my original ruling. In effect, I am simply asked to reconsider my earlier decision, and now do the opposite of what I did then; i.e., by rejecting the request for dismissal of R.C.K.’s appeal on the ground of delay, thereby allowing it to proceed to a hearing.

[97] In such circumstances, I do not accept that application of Rule 59.06(2)(d) justifies setting aside or varying my earlier order.

[98] In the result, I therefore am not satisfied that the Rules provide any basis for me to set aside or vary my now issued and entered order of May 12, 2015.

Conclusion

[99] For the reasons set out above, the motion by R.C.K. is dismissed.

Justice I F. Leach

Date: August 11, 2015

[^1]: See, for example: Degroote v. Canadian Imperial Bank of Commerce, 1999 4115 (ON CA); 1307347 Ontario Inc. v. 2354068 Ontario Inc.; and Strugarova v. Kissiov, 2009 40552 (ON SC).

[^2]: See: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59; Strugarova v. Kissiov, supra; and Mehedi v. 2057161 Ontario Inc.

[^3]: See: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., supra; Strugarova v. Kissiov, supra; and Scott v. Cook, 1970 331 (ON SC).

[^4]: See Lac Des Mille Lacs First Nation v. Viherjoki; and Mehedi v. 2057161 Ontario Inc.

[^5]: See Lesyork Holdings Ltd. v. Munden Acres Ltd. (1976), 1976 793 (ON CA).