Ontario Superior Court of Justice

Court File No.: CV-18-1894
Date of Judgment: March 25, 2025
Heard: March 13, 2025

Between:
Adam Drew and Evelyn Drew, Plaintiffs
– and –
Aaron Topple o/a “Future Perfect Construction”, Future Perfect Construction Inc., and Town Brewery Inc., Defendants

Adam Drew, Self-Represented
Aaron Topple, Self-Represented

Reasons for Decision: Rule 59.06 Motion and Costs
R.E. Charney

Introduction

[1] On January 16, 2025, I issued Reasons for Decision in this case, granting Judgment in favour of the Plaintiffs in the amount of $193,496, payable by both Defendants on a joint and several basis and dismissing the Defendants’ counterclaim: Drew v. Topple, 2025 ONSC 367.

[2] The decision followed a five-day trial in which both parties were self-represented.

[3] Following the release of my Reasons, the Defendant, Aaron Topple, wrote to the Court asking me to reconsider my decision on the basis of perceived inconsistencies between my Reasons and the evidence. He took the position that the evidence I relied on to reach my decision was not correct. In particular, he argues that I misinterpreted the September 18, 2017 Agreement between the parties when I held that building the roof trusses across the cathedral window in the dining room rather than conforming to the angle of the peak in the roof was inconsistent with the agreement and an obvious construction flaw.

Legal Framework for Reconsideration

[4] In this regard, the Defendant relied on the decision of Ramsay J. in Serravalle v. Duggan, 2023 ONSC 4872, where the Court discussed the “rare circumstances” when a Court can reconsider and withdraw its reasons. The Court stated, at paras. 11–17:

Notwithstanding the fact that rr. 37.14 and 59.06 of the Rules of Civil Procedure do not apply, the jurisprudence establishes that until an order is formally entered in the court record, the court has a broad discretion to vary or withdraw it, but only if it is in the interests of justice to do so: Montague; Pastore v. Aviva Canada Inc., 2012 ONCA 887, para. 9; Mujagic v. Kamps, 2015 ONCA 360, para. 5, leave to appeal refused, [2015] S.C.C.A. No. 330; Meridian Credit Union Limited v. Baig, 2016 ONCA 942, para. 7; and First Elgin Mills Developments Inc. v. Romandale Farms Limited, 2015 ONCA 54, paras. 7-8.

The discretion to re-open a matter is one that should be resorted to “sparingly and with the greatest care”: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, para. 61; Clayton v. British American Securities Ltd..

The party seeking to re-open a hearing after a decision has been rendered faces a “high hurdle”: McGrath v. Joy, 2023 ONCA 46, para. 15; Meridian, at para. 7. The court will re-open an appeal prior to the entering of the order only in the rare circumstance where it is in the interests of justice to withdraw the reasons of the court and re-hear the case on the merits: First Elgin Mills, at para. 7; Pastore, at para. 9.

The plaintiffs rely on the following passage from Montague in support of their argument that this court has jurisdiction to reconsider and withdraw its reasons:
“There can be no doubt that until a judgment is formally entered in the court record, the judge has a very broad discretion to change it.”

As for the merits of the motion, the Ontario Court of Appeal has in fact articulated that the right to reconsideration and withdrawal of a court’s reasons is a narrow one. In the result, I adopt the reasons of the unanimous Court of Appeal in El-Khodr, at para. 11, as follows:

Although we have addressed this motion on its merits, that fact should not be taken as any indication that this was a proper motion to be brought. It was not. The issues raised here, in their essence, were that the moving party was treated unfairly because the court decided matters that were not raised by the parties and without notice to them. Such issues are properly the subject for a further appeal, and not a motion for reconsideration. The right to reconsideration and/or withdrawal of the court’s reasons is a narrow one. It is only in rare circumstances and where it is in the interests of justice that a court, having decided a matter, will reconsider: First Elgin Mills Development Inc. v. Romandale Farms Ltd., 2015 ONCA 54, paras. 7 and 8.

What are some of the rare circumstances in which reconsideration is justified? The court may reconsider its reasons where it is in the interest of justice to do so. In Schmuck v. Reynolds-Schmuck, para. 25, Himel J. referred to the restrictions on the jurisdiction to reopen a case as follows:

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.

The jurisprudence indicates that these rare circumstances include where a mathematical error is made, where a judge has failed to advert to a key statutory provision, or where there is an obvious error and correcting the error would change the outcome of the decision.

[5] While this is an accurate summary of the law, the difficulty with the language used by the courts in these cases is that vague references to “rare circumstances” and “in the interests of justice” do not provide much guidance, particularly to self-represented litigants who are unfamiliar with the legal process. No doubt many unsuccessful, self-represented litigants believe that theirs is one of the rare cases in which the interests of justice demand reconsideration and withdrawal.

[6] No doubt many unsuccessful, self-represented litigants (and many unsuccessful lawyers) will be of the view that the decision contains “an obvious error and correcting the error would change the outcome of the decision”. That is usually the job of the Court of Appeal.

Rule 59.06 and Its Application

[7] Rule 59.06(1) does provide some particularized guidance on when a Court can reconsider its decision, even after an Order is signed. The Rule states:

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.

[8] Rule 59.06(2)(a) permits a party who seeks to “have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made” to make a motion in the proceeding for the relief claimed.

[9] I advised the parties that I would only consider motions brought under Rule 59.06 if a formal notice of motion was brought.

[10] Mr. Topple brought a motion seeking reconsideration on the basis that my Reasons for Decision “mischaracterized the construction plans” and were contradicted by other evidence. He argued that this “misapprehension led to an incorrect finding regarding the placement of roof trusses and the alleged breach of contract”.

[11] The Plaintiff, Adam Drew, responded, and brought his own motion to request a re-calculation of the damages to complete the costs of the scope of the contract, unjust enrichment, and misrepresentation.

[12] In Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc., 2013 ONSC 1502, paras. 30–33, Perell J. provided a thorough analysis of the purpose and proper scope of Rule 59.06 as follows:

• Rule 59.06(1) is designed to amend judgments containing a slip or error, errors which are clerical, mathematical or due to misadventure or oversight. The rule is designed to amend judgments containing a slip, not to set aside judgments resulting from a slip in judicial reasoning.
• Rule 59.06(1) is not designed to be a disguised means to review errors in the making of the Reasons for Decision; rather, it is designed to correct errors in memorializing the Reasons into a formal order or judgment.
• Generally speaking, the court’s inherent and statutory jurisdiction to amend an order or judgment is limited to: (1) cases of fraud; (2) where there has been a slip in drawing up the order; and (3) where there has been an error in the order expressing the manifest intention of the court from its reasons for decision.
• The rule is only operative in exceptional circumstances given the public interest in the principle of finality to the litigation process.
• Under rule 59.06(1), the Court has the power to amend an order where there has been an error in expressing the manifest intention of the Court.
• The rule permits amendments where the order obviously or indubitably does not reflect what the court intended to do, either by error or oversight. [Citations omitted and bullet points added.]

[13] Rule 59.06 is not intended as an opportunity for a party to re-argue his case. Nor is Rule 59.06 intended to authorize the trial judge to sit on appeal from his own decision. A court under Rule 59.06 is not entitled to consider issues properly dealt with by way of an appeal, such as alleged errors in law: Zsoldos v. Ontario Assn. of Architects, [2004] O.J. No. 309 (C.A.), para. 3.

[14] In this regard, I adopt the caveat of Granger J. in Rickett v. Rickett, paras. 2, 4:

As the formal judgment had not been issued and entered, counsel in their submissions requested that I consider amending or varying my judgment. There can be little doubt that prior to judgment being issued and entered, I have jurisdiction to amend or vary my judgment.

In my opinion, I should avoid the temptation of tinkering with my judgment unless I have inadvertently failed to deal with a claim or made a mathematical error. If it is obvious that an error or omission has been made, counsel should always feel free to approach the trial judge and request that he or she reconsider his or her judgment in order to avoid the necessity of an appeal. On the other hand, counsel should not attempt to reargue their case prior to the formal judgment being issued and entered…

[15] See also National Trust Co. v. Saks, [1995] O.J. No. 853, per Borins J., at para. 6:

My reasons for judgment reflected the result which I intended, based on my understanding of the submissions of counsel and the authorities which he provided, and other authorities which he did not provide. What…counsel did, in essence, was to reargue his client’s position with respect to its damages and attempt to convince me that the approach taken in my reasons for judgment was wrong. In my view, I was asked to review my own reasoning. It may be that I was wrong. If I was, no doubt the Court of Appeal will correct the error.

Application to the Present Case

[16] In the present case, I set out in some detail the evidentiary basis for my findings of breach of contract and the calculation of damages. I concluded that building the roof trusses across the cathedral window in the dining room was a breach of the Agreement and an obvious construction flaw.

[17] The Defendant disagrees with my interpretation of the Agreement and my factual findings. He argues that reference to the cathedral ceiling in the Agreement refers only to the great room and not to the dining room. There is, however, nothing in the Agreement that so limits the relevant reference.

[18] There may well be other evidence that might have supported a different result. The evidence in this trial included many hundreds of pages of exhibits in addition to the oral testimony of the parties. “There is no onus on a trial judge to refer to every piece of evidence adduced by the parties”: MacKinnon v. Sharkey, 2009 ONCA 265, para. 23. See also: Housen v. Nikolaisen, 2002 SCC 33, para. 46:

The full record was before the trial judge and we can presume that she reviewed all of it, absent further proof that the trial judge forgot, ignored or misapprehended the evidence, leading to an error in law. It is open to a trial judge to prefer the evidence of some witnesses over others... Mere reliance by the trial judge on the evidence of some witnesses over others cannot on its own form the basis of a “reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion”. [Citations omitted.]

[19] I made no accidental slip or omission in finding a breach of contract or in calculating damages. In making these determinations, I relied on evidence that was introduced at trial. My Reasons for Decision reflected the result I intended, and “if I made an error, it is an error for the Court of Appeal to address and not for this court to fix”: Shaw Satellite G.P. v. Pieckenhagen, 2011 ONSC 5968, para. 26.

[20] The Plaintiff complains that I did not address his “unjust enrichment” argument. I set out the legal principles by which I calculated the damages owed in paras. 74–75 of my Reasons for Decision. The Plaintiffs’ allegations of “unjust enrichment” were not relevant to the assessment of damages and were therefore not commented upon. “A judge need not deal with every issue raised in a proceeding”: O’Loan v. Risinger, 2009 ONCA 842.

Conclusion

[21] For the foregoing reasons, the parties’ motions under Rule 59.06 are dismissed.

Costs

[22] While the Plaintiffs were self-represented at trial, they did have legal counsel through much of the litigation process, including drafting the Statement of Claim, Reply and Defence to Counterclaim, discoveries, motions, and pre-trial conference.

[23] The Plaintiffs seek costs of $132,854, payable on a full indemnity basis. They have provided the invoices from their lawyers to support this claim. These costs include the costs for the motion heard by Woodley J. in 2021, as per para. 60 of her decision: Drew v. Topple, 2021 ONSC 367. In arriving at this amount, the Plaintiffs have deducted the legal fees paid in relation to their claim against Town Brewery, which settled early in these proceedings.

[24] The Defendant argues that the Plaintiffs pursued multiple claims, including allegations of fraud, breach of trust, misrepresentation, unjust enrichment, and punitive damages. Their only success was on the breach of contract claim, and the total damages awarded—$193,496—was significantly less than the $1,329,966 claimed.

[25] In Davies v. Clarington (Municipality) et al., 2009 ONCA 722, para. 40, the Court of Appeal held that “Apart from the operation of rule 49.10, elevated costs [full or substantial indemnity] should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made.” There was no such conduct in this case.

[26] Accordingly, the Plaintiffs’ costs must be awarded on a partial indemnity basis.

[27] As the Ontario Court of Appeal observed in its leading decision in Boucher v. Public Accountants Council for the Province of Ontario, para. 26: “Overall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.”

[28] The total costs must be proportional to the amount awarded, but costs may exceed the award of damages in appropriate circumstances. “Proportionality should not override other considerations, and determining proportionality should not be a purely retrospective inquiry based on the award”: Doyle v. Zochem Inc., 2017 ONSC 920, para. 26.

[29] The Court must also consider the factors set out in Rule 57.01.

[30] While the Plaintiffs were not successful in certain parts of their claim, the multiple heads of damages did not contribute significantly to the Plaintiffs’ legal fees, all of which pre-dated the trial. No expert evidence was called by the Plaintiffs, and all legal costs relate to the pre-trial conduct of the litigation. As indicated, these pre-trial costs included drafting the Statement of Claim, Reply and Defence to Counterclaim, discoveries, motions, and pre-trial conference.

[31] In applying the proportionality principle and exercising my discretion in awarding costs based upon what is fair and reasonable and the factors set out in Rule 57.01, costs are fixed on a partial indemnity basis in the amount of $70,000 inclusive of fees and disbursements, payable by the Defendants on a joint and several basis within 30 days.

Justice R.E. Charney
Released: March 25, 2025