Court File and Parties
COURT FILE NO.: 7578/15 (Sarnia) DATE: 20160908 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: The Corporation of the City of Sarnia Applicant – and – Bluewater Health Respondent
Counsel: Joe Hoffer and Laura M. McKeen, for the Applicant John A. MacDonald and Mark Sheeley, for the Respondent
HEARD: Written Submissions
S.K. Campbell J.:
Reasons on Motion
[1] The applicant, The Corporation of the City of Sarnia (“the City”) brings this motion for:
a) An order setting aside or varying the Reasons on Application given by this court and dated May 30, 2016;
b) A declaration that the applicant has an equitable right to indemnity against the respondent for all costs associated with the respondent’s failure to operate and maintain property known as the Mitten site;
c) An interim or interlocutory mandatory order that the respondent is required to operate and maintain the Mitten site until the hearing of the motion has been decided.
[2] The background of this matter is set out in the court’s reasons, dated May 30, 2016. In that decision I set out that the applicant sought a declaration that the City holds the title to two properties for the respondent, Bluewater Health. I also noted it sought alternate relief including a right to indemnity for costs associated with the respondent’s failure or refusal to maintain the properties.
[3] The factual background of this matter is set out in my reasons. In my view it is not necessary to review that decision in detail. At the conclusion of my reasons I dismissed the application.
[4] I noted in my reasons that the applicant sought, among other relief, “a declaration that the applicant has an equitable right to indemnity against the respondent for all costs associated with the respondent’s failure to operate and maintain the Mitton site”. However, in its factum and oral argument, the applicant submitted that that obligation arose out of what it alleged was a Trust.
[5] At para. 100, I stated, “[w]hat the applicant did not appear to consider was any alternate basis for making such a claim. Certainly, they were not argued.” In the penultimate paragraph of my decision I stated it would be inappropriate for me to consider alternate remedies.
The Current Motion
[6] After the release of my decision the applicant brought this motion, dated June 27, 2016, originally returnable at Sarnia on July 21, 2016. It was arranged that the parties be before me by way of teleconference to consider this motion. On the initial conference I did not have the materials necessary and the matter was adjourned to August 3, 2016. On that date I adjourned the motion to September 9, 2016, and set certain timelines for the filing of the materials. I directed the respondent to file material on the issue of the court’s jurisdiction and the parties to file written submissions on that issue.
Issue
[7] The threshold issue is whether or not this court has the jurisdiction to deal with the applicant’s motion.
Position of the Parties
[8] The applicant takes the position that the court has jurisdiction to hear and grant the claim for relief pursuant to r. 59.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The judgment has not been formally entered and the court has a broad discretion to change it. The City asserts that the relief sought is within the same proceeding as the original application and the court is not functus officio.
[9] The City argues that what it is currently seeking was contemplated in its initial application. In the court’s reasons it made certain determinations of fact that support its current request. It would not be unfair or prejudicial to the respondent to deal with the City’s declaration for indemnification.
[10] The respondent argues that the court does not have jurisdiction to grant the requested relief and that what the applicant seeks is beyond the ambit of r. 59.06. The respondent agrees that until a judgment has been formally entered the presiding judge is not functus officio and can amend his or her judgment. However, a judge may not vary an order to provide relief for a cause of action that was not pleaded. Changes are limited to technical slips or to prevent a miscarriage of justice.
[11] They further argue that a motion to vary is not an appropriate means to raise new arguments that could have been made initially. Here, the applicant makes new claims in tort that were not included in its notice of application which was premised entirely on a finding of a trust.
[12] The respondent also argues that those new causes of action raise limitation issues and are not appropriate for adjudication but by way of application. Fundamentally, they argue that the applicant has to satisfy a high threshold to vary an order and should not be allowed to do so and must live with the result. The integrity of the litigation process is not at risk nor is there some principle of justice to override the value of finality of litigation.
Analysis
[13] Rule 59.06 of the Rules of Civil Procedure 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. R.R.O. 1990, Reg. 194, r. 59.06 (1).
Setting Aside or Varying
(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.
[14] There is no doubt and the parties agree, that the court has jurisdiction to change or amend its judgment before it is formally drawn and signed. However, a court should be reluctant to do so and should exercise its jurisdiction only in exceptional cases: see Re Nortel Networks Corporation et al, 2015 ONSC 4170.
[15] Himel J. in Schmuck v. Reynolds-Schmuck, 46 O.R. (3d) 702, [2000] O.J. No. 247 (Sup. Ct. J.) noted that the court is confined to re-opening cases in rare circumstances. She summarized that view, at para. 25, of her decision:
It is my view that a party who wishes a reconsideration alone would have to establish that the integrity of the litigation process is at risk unless it occurs, or that there is some principle of justice at stake that would override the value of finality in litigation, or that some miscarriage of justice would occur if such a reconsideration did not take place. No such reasons exist in this case. The questions raised by counsel may be the subject of appeal. As such, I decline to exercise my discretion to reconsider any of the issues raised by the husband.
[16] Generally, it can be stated that our system of litigation requires each party to put their best case forward. A judgment will be rendered after each party has done so. There is a strong desire for finality from which we should depart only in exceptional circumstances. The parties may make strategic decisions in the course of litigation and they should be held to those decisions. As stated by the Divisional Court in Risorto v. State Farm Automobile Insurance Co., 2009 ONSC 1200 (Div. Ct.), litigation by installment should not be encouraged.
[17] Here, the applicant founded its case on the position that there existed between the parties a Trust relationship. That is the case which the respondent’s defended. To allow the applicant in the context of this application to re-open and re-litigate new issues raised by them is in my view outside the jurisdiction a court has under r. 59.06.
[18] I do not find that this is one of the rare circumstances in which the applicant should be allowed to re-open its case. The integrity of the litigation process is not at risk. Indeed to allow the applicant to proceed in this motion would foster litigation in stages.
[19] In my view I am functus officio. I do not believe there is anything in my reasons or the language of my reasons inconsistent with that finding. I conclude I do not have jurisdiction to deal with the applicant’s motion.
Original signed by Justice Scott K. Campbell Scott K. Campbell Justice Released: September 8, 2016