



COURT OF APPEAL FOR ONTARIO

CITATION: Meridian Credit Union Limited v. Baig, 2016 ONCA
    942

DATE: 20161215

DOCKET
:
M46639

C59249

Strathy C.J.O., LaForme and Huscroft JJ.A.

BETWEEN

Meridian Credit Union Limited

Plaintiff (Respondent)

and

Ahmed Baig

Defendant (Appellant)

Milton A. Davis, for the
    appellant

J. Anthony Caldwell, for the respondent

Heard: In writing

Motion for reconsideration of a decision of this court,
    dated February 25, 2016, with reasons reported at 2016 ONCA 150, 394 D.L.R.
    (4th) 601, dismissing the appeal from the order of Justice Frederick L. Myers
    of the Superior Court of Justice, dated August 15, 2014, with reasons reported
    at 2014 ONSC 4717, 16 C.B.R. (6th) 291.

ENDORSEMENT

Introduction

[1]

On February 25, 2016, this court dismissed Baigs appeal and upheld the
    motion judges decision that held Baig liable for fraudulent misrepresentation
    in an amount to be determined by the Superior Court of Justice:
Meridian
    Credit Union Limited v. Baig
, 2016 ONCA 150, 394 D.L.R. (4th) 601. Some
    eleven months later, Baig seeks leave to re-open his appeal and have this court
    reconsider its decision.

[2]

Baig did not file an affidavit on this motion. However, the notice of
    motion explains that, on April 22, 2016, Baig applied for leave to appeal this
    courts decision to the Supreme Court of Canada. The notice then states that
    Baig has filed a motion for the Supreme Court to hold his leave application in
    abeyance pending this motions outcome. Baig does not explain when he formed
    the intention to ask this court to re-open his appeal here, rather than merely
    appeal this courts decision to the Supreme Court.  We note that the Supreme
    Court has granted Baigs request to hold his leave application in abeyance:
Baig
    v. Meridian Credit Union Limited
, [2016] S.C.C.A. No. 173. However, this
    development does not affect our opinion of this motion.

Issues

[3]

In his notice of motion to this court, Baig lists the grounds in support
    of his request to re-open the appeal by repeating some of the background of the
    case and specific reasons for this courts decision. In summary, there is one
    ground that we garner from the notice, namely, the reasons for this courts
    decision disclose a misapprehension or misapplication of a material piece of
    evidence. Or, as Baig puts it in paras. 35 and 36 of his factum:

In its reasons, the Court of Appeal concludes that the
    misrepresentations found in the closing documents caused the Receiver to seek
    and obtain court approval of the sale.

[I]t is not possible that the closing documents caused the
    Receiver to seek and obtain court approval of the sale.

[4]

Baig also raises two issues that, he claims, we must consider on this
    motion. First, can this motion proceed when Baig already has filed an
    application for leave to appeal to the Supreme Court of Canada? And second,
    should we permit Baig to re-open his appeal?

Discussion

[5]

We need not consider the first issue because Baig has failed to
    demonstrate an arguable basis for re-opening his appeal. We reach this
    conclusion for several reasons.

[6]

The first observation that we would make is that Baigs reliance on r.
    59.06 of the
Rules of Civil Procedure
is misplaced. Rule 59.06(1) addresses
    the jurisdiction of the court to amend an order where it contains an error
    arising from an accidental slip or omission or requires amendment in any
    particular on which the court did not adjudicate. Rule 59.06(2) allows a party
    to move for the court to modify or set aside an order under particular
    conditions; to suspend the operation of an order; to carry an order into
    operation; or to obtain relief other than that originally awarded. All of these
    grounds for re-opening an appeal concern
orders
,
    whereas Baig alleges errors in this courts
reasons
;
    no order has yet been taken out.

[7]

Nevertheless, generally speaking, there is no jurisdictional impediment
    to this court reconsidering its decision when no order has been taken out and
    entered:
Mujagic v. Kamps
, 2015 ONCA 360, 125 O.R. (3d) 715, at para.
    5. However, a party seeking to re-open an appeal after the appeal decision has
    been rendered faces a high hurdle:
Chuang v. Toyota Canada Inc
.,
    2016 ONCA 852, at para. 7. The court will re-open an appeal prior to the
    entering of the order sparingly and only where it is clearly in the interests
    of justice:
Mujagic
, at para. 12. Baig has not raised the kind of
    rare circumstance where the interests of justice would require us to
    withdraw our reasons and rehear the case on the merits:
Aviva Canada Inc.
    v. Pastore
, 2012 ONCA 887, 300 O.A.C. 355, at para. 9.

[8]

The arguments that Baig makes on this motion were advanced  in writing
    and in oral argument  and considered, both on the originating motion and on
    appeal. In both instances they were rejected. The losing partys disagreement
    with the courts reasons is not a rare circumstance in appellate litigation.
    As we have mentioned, Baig already has filed an application for leave to appeal
    to the Supreme Court of Canada. Such an application is the normal and proper
    recourse for a party who wishes to challenge this courts reasons.

Conclusion

[9]

For the reasons given, the motion is dismissed with costs to the
    respondent. If the parties cannot agree on the amount, they may make written
    submissions of three pages or less within 14 days of the release of these
    reasons.

G.R.
    Strathy C.J.O.

H.S. LaForme J.A.

"Grant Huscroft J.A."


