



COURT OF APPEAL FOR ONTARIO

CITATION: Paulpillai Estate v. Yusuf, 2021
    ONCA 146

DATE: 20210310

DOCKET: M51881 (C68024)

Doherty, Hoy and Jamal JJ.A.

BETWEEN

Theresa Yogaranie Paulpillai in her capacity as the Estate Trustee
    for the Estate

of
    Richmond Gabriel Paulpillai, Theresa Yogaranie Paulpillai

and Maneharran Paulpillai

Applicants/Respondents

(Responding Parties)

and

Joshua Akanni Yusuf, Meerc Inc.
, All
    Saints University Limited,

All
    Saints University School of Medicine Limited, Avonelle Pinard, David Bruney,

Frankie Bellot and Medical Education Examination Resource Center

Respondents/Appellants

(
Moving Parties
)

Osborne G. Barnwell, for the moving
    parties

Edwin G. Upenieks and Angela H. Kwok,
    for the responding parties

Heard: in writing

REASONS FOR DECISION

[1]

On October 19, 2020, the court released its decision in respect of two
    motions before it. The court granted Theresa Paulpillai and her son Maneharran
    Paulpillais motion to quash the appeal in C68024 on the basis that the order
    under appeal was interlocutory, not final, and thus any appeal lay to the
    Divisional Court. Because the court lacked jurisdiction over the appeal, it
    dismissed Joshua Akanni Yusuf and the other respondents motion to stay the
    order under appeal, without prejudice to the right to seek leave to appeal to
    the Divisional Court and renew the stay motion before that court.

[2]

The respondents had also filed a notice of motion for leave to appeal to
    the Divisional Court and, following the release of the courts decision of
    October 19, 2020, they proceeded with that motion before the Divisional Court.
    On February 1, 2021, the Divisional Court released an endorsement, dated
    January 29, 2021, dismissing their motion for leave to appeal.

[3]

The respondents now move before this court, under r. 59.06 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, seeking a reconsideration of the
    courts decision of October 19, 2020. Mr. Yusuf states that, on reading the
    courts decision he felt that that the court had mischaracterized something in
    the factual matrix, had not looked at the respondents materials, and had misunderstood
    the appropriate elements to be considered in determining whether an order is
    interlocutory or final. The respondents also seek to advance a new argument,
    namely that the judge at first instance showed a preference to the Paulpillais
    because they were represented by a White lawyer, whereas the respondents
    counsel is Black.

[4]

The respondents reliance on r. 59.06 is misplaced. The grounds it sets
    out for re-opening an appeal concern orders, whereas the respondents allege
    errors in the courts reasons:
Meridian Credit Union v. Baig
, 2016 ONCA
    942, at para. 6.  No order has yet been issued and entered with respect to the
    courts decision of October 19, 2020.

[5]

Finality in litigation is important. While the court can reconsider its
    decision when no order has been taken out and entered, it will only do so
    sparingly and where the interests of justice would require it to withdraw its
    reasons and rehear the case on its merits:
Meridian Credit
, at para.7.

[6]

The interests of justice do not require the court to withdraw its
    reasons and rehear the motions that were the subject of its decision of October
    19, 2020.

[7]

Approximately four months have elapsed since that decision was released.
    In the interim, the respondents accepted that decision and proceeded to seek leave
    before the Divisional Court. Judicial time and resources were expended and,
    presumably, the Paulpillais incurred expenses as a result. For that reason
    alone, it is not in the interests of justice for this court to reconsider its
    decision. Further, on February 16, 2021 the respondents took a further step, serving
    a Notice of Motion for leave to Appeal the Divisional Courts decision to this
    court. (That Notice of Motion is not before this panel.)

[8]

In their reply factum, the respondents advise that they raised the issue
    of anti-Black racism on their motion for leave to appeal to the Divisional
    Court. While an important issue, the issue of anti-Black racism is not relevant
    to the question of whether the order under appeal was interlocutory or final
    which was determined by this court. Perhaps this is why the respondents raised
    the issue before the Divisional Court, and not this court.

[9]

The respondents seek an opportunity to re-argue their position. As the
    court noted in
Meridian
, at para. 8, [t]he losing partys disagreement
    with the courts reasons is not a rare circumstance in appellate litigation
    and an application for leave to appeal to the Supreme Court of Canada is the
    normal and proper recourse for a party who wishes to challenge this courts
    reasons.  In fact, the respondents acknowledge that this is the normal
    recourse but argue that it would have been time consuming and expensive to do
    so and this warrants the court now reconsidering its decision. We reject this
    argument.

[10]

Accordingly, the respondents motion is dismissed, with costs to
    the Paulpillais. If the parties cannot agree on the amount, they may make
    written submissions of not more than three pages within 14 days of the release
    of these reasons.

Doherty
    J.A.

Alexandra
    Hoy J.A.

M.
    Jamal J.A.


