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Rule 59.06 and Re-Opening Hearings

By Meryl Rodrigues

Finality in proceedings is generally promoted by the courts. In Tsaoussis (Litigation Guardian of) v. Baetz, the Ontario Court of Appeal stated:

Finality is an important feature of our justice system, both to the parties involved in any specific litigation and on an institutional level to the community at large. For the parties, it is an economic and psychological necessity. For the community, it places some limitation on the economic burden each legal dispute imposes on the system and it gives decisions produced by the system an authority which they could not hope to have if they were subject to constant reassessment and variation.[1]

However, the recent Superior Court decision in Tiny (Township) v. Robitaille[2] highlights some flexibility with respect to finality, and demonstrates circumstances in which the principle of finality may be outweighed by other considerations.

The decision pertained to the respondent Robitaille’s motion to re-open the hearing of an application by the applicant Township pursuant to section 38 of the Building Code Act. Subsequent to the hearing of the application in 2019, in which the respondent was self-represented, Justice McKelvey granted the relief sought by the Township to enforce a zoning by-law requiring the respondent to move or demolish buildings located on his property.

A few weeks following the release of His Honour’s decision in 2019, a lawyer consulted by the respondent advised the Court of an intention to bring the subject motion under Rule 59.06(2) in order to re-open the hearing and raise a constitutional question. The hearing of the motion was delayed until 2022, as a result of the COVID-19 pandemic.

The respondent’s position on the motion was that, being self-represented on the application, he was not familiar with the Rules of Civil Procedure and so did not bring a constitutional challenge to the Township’s zoning by-law at issue. The constitutional challenge would relate to the Township’s jurisdiction, as the respondent, an Indigenous person, asserted that the property in question was part of unceded, un-surrendered Amikwa Algonquin Nation territory.

Justice McKelvey ultimately granted the respondent’s motion to allow re-opening of the hearing to advance a constitutional challenge, taking several legal principles and factors into consideration.

Rule 59.06 provides as follows:

Amending, Setting Aside or Varying Order


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.  R.R.O. 1990, Reg. 194, r. 59.06 (2).

His Honour cited the Court of Appeal decision in Clatney v. Quinn Thiele Mineault Grodzki LLP[3] for the proposition that Rule 59.06 provides an expeditious procedure for setting aside a court order, but does not prescribe or delineate a particular test in that regard. Rather, a party seeking to set aside an order must show “’circumstances which warrant deviation from the fundamental principle that a final [order], unless appealed, marks the end of the litigation line’”.

While appreciating that re-opening a decision once made is a rare occurrence and that Rule 59.06 was not intended to facilitate litigation by installment or provide an opportunity for parties to advance new arguments not previously made, Justice McKelvey noted that “the principle of finality must yield in circumstances where failure to do so will undermine the integrity of the administration of justice.”

His Honour noted further that a court has broader discretion to re-open a matter where an order has not been signed, issued or entered – as was the case in the matter before him. Citing the Court of Appeal decision in Montague v. Bank of Nova Scotia[4], His Honour found that it was settled that an order could be withdrawn, altered or modified by a judge at his or her own initiative, or on the application of a party, until it has been drawn up, issued and entered – subject to the sought change being technical in nature, or necessary to avoid a miscarriage of justice.

In the matter before him, Justice McKelvey accepted that the self-represented respondent on the hearing of the application was not familiar with the Rules or requirements to advance a constitutional question, which merited some leeway. Further, as the proposed constitutional challenge was considered to be a novel issue, His Honour deemed it would be in the interests of justice to allow the discrete question to be considered by him.

His Honour also found there did not appear to be any prejudice to the Township in allowing his consideration of the issue, as the Township had not taken steps to remove the impugned buildings from the property. Finally, His Honour considered it significant that the issue was raised by the respondent in a prompt fashion.

The decision speaks to various potential factors that may bear on a court’s decision to re-open a matter pursuant to Rule 59.06 beyond simply the interests of justice, including the status of an order, representation of a party, and delay in raising an issue subsequent to the decision sought to be re-opened. Counsel may wish to bear these in mind, when faced with situations involving recourse to Rule 59.06.

[1] 1998 CanLII 5454 (Ont CA), 41 O.R. (3d) 257.

[2] 2022 ONSC 2523.

[3] 2016 ONCA 377.

[4] 69 O.R. (3d) 87.