



COURT OF APPEAL FOR ONTARIO

CITATION: First Elgin Mills Developments Inc. v. Romandale
    Farms Limited, 2015 ONCA 54

DATE: 20150128

DOCKET: M44238 (C57028)

Epstein, Lauwers and
    Pardu JJ.A.

BETWEEN

First Elgin Mills Developments Inc.

Applicant

(Appellant/Responding
    Party)

and

Romandale
    Farms Limited, Angela Maria Roman,

Anne
    Catherine Ruth Roman, David Andrew Roman,

Stephen
    George Roman, and Helen Elizabeth Roman-Barber

Respondents

(Respondents/Moving
    Parties)

R. Leigh Youd and Adam J. Wygodny, for the moving
    parties

John J. Longo and Martin J. Henderson, for the responding party

ENDORSEMENT

[1]

Reasons
    for judgment in this appeal were released by the court on Wednesday, August 6,
    2014, and are reported at 2014 ONCA 573.  The moving parties, led by Romandale
    Farms, have brought a motion for a re-hearing of the appeal on the basis that
    the court applied the wrong standard of review and that the interests of
    justice require a re-hearing.

[2]

The
    moving parties allege that the Supreme Court of Canadas decision in
Sattva
    Capital Corp. v. Creston Moly Corp
., 2014 SCC 53, released on Friday,
    August 1, 2014, altered the applicable standard of review.

[3]

Our
    decision was released several days after the Supreme Courts decision in
Sattva
. 
    It did not refer to that decision. Writing for the court, Lauwers J.A. described
    the applicable standard of review at para. 29:

In my view, the standard of review on this appeal is
    correctness, since it involves the interpretation of a contract, with due
    deference to be paid to the application judge on those determinations in which
    the facts dominate:
The Plan Group v. Bell Canada
, 2009 ONCA 548, 96
    O.R. (3d) 81, at paras. 19-20, 27, 30, 31.

[4]

In
Sattva,
Rothstein J., writing for the court, held at para. 50 that
    contractual interpretation involves issues of mixed fact and law. Rothstein J.
    went on to leave open the possibility of identifying an extricable question of
    law from within what was initially characterized as a question of mixed fact
    and law, including the application of an incorrect principle, the failure to
    consider a required element of a legal test, or the failure to consider a
    relevant factor (at para. 53).

[5]

The
    moving parties assert that
Sattva
requires a greater degree of appellate
    deference to the decision of the application judge than this court showed in
    its reasons for judgment. Accordingly, they argue that this courts decision
    was made in error, and that the interests of justice require a re-hearing of
    the appeal.

[6]

The
    respondent on the motion, First Elgin Mills Developments Inc., contends that
    our approach to the standard of review was entirely consistent with the
    principles articulated in
Sattva
. The predominant errors made by the
    application judge in this case were properly classified as legal errors, thus
    attracting the standard of correctness in accordance with the principles
    articulated in
Sattva
.

[7]

This
    court has jurisdiction to reconsider and vary its decision before the formal
    order is issued:
McDowell v. Barker
, [2014] O.J. No. 2363 (C.A.), at
    para. 22;
Pastore v. Aviva Canada Inc
., 2012 ONCA 887, at para. 9;
Gore
    Mutual Insurance Co. v. 1443249 Ontario Ltd.
, [2004] O.J. No. 1896 (S.C.),
    at paras. 3, 7. However, the court will re-open an appeal prior to the entering
    of the order only in the type of 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:
Pastore
, at para. 9.

[8]

We agree with the
    British Columbia Court of Appeal that [s]omething in the nature of overlooked
    or misapprehended evidence, or failing that, a clear and compelling case in law
    on the point and the prospect of a very serious injustice absent
    reconsideration would be required to justify withdrawing the courts reasons
    and holding a re-hearing:
Doman Forest Products Ltd. v. GMAC Commercial
    Credit Corp.
, 2005 BCCA 111, 209 B.C.A.C. 197, at para. 6.

[9]

In
    our view, this is not one of those rare circumstances in which it would be in
    the interests of justice to withdraw the reasons of the court and re-hear the
    case on the merits:
Doman Forest Products Ltd.
, at para. 6;
Pastore
,
    at para. 9. The result in the appeal was not driven by the standard of review
    and would not have been different under the application of the
Sattva
test. As found in our reasons, the application judge misapprehended the
    evidence, reached an interpretation of the agreement that was commercially
    unreasonable, and improperly implied a term in the agreement when the legal
    standard for doing so was not met. The standard of review articulated in
Sattva
supports appellate intervention in these circumstances.

[10]

Accordingly,
    there is no serious injustice that will result if the court refuses to re-hear
    the appeal.

[11]

The request to
    re-hear the appeal in this case is denied.

Gloria Epstein J.A.

P. Lauwers J.A.

G. Pardu J.A.


