This was an Application pursuant to Rule 9.13 to reopen or reargue an earlier Application. The earlier Application had been made pursuant to Rule 14.47, to restore Appeals which were struck for failure to meet deadlines. The earlier Application to restore was denied on the basis that the Applicants had failed to adequately explain their failure to meet applicable deadlines or demonstrate their intention to Appeal. After the Application to restore was denied, the Applicants sought permission to Appeal the Court’s determination, pursuant to Rule 14.5, which permission was also denied. The Application to reopen or reargue the earlier Application to restore was the Applicants’ third attempt to rescue their Appeals.

The Respondent argued that the Rules do not contemplate or permit an Application to reopen or reargue a previous Application in respect of which permission to Appeal has already been denied. The Respondent argued that Rule 14.5, which contemplates Appeals from a single Appeal Judge’s Decision to a panel of Appeal Judges, with permission, displaced the right to seek to reopen or reargue otherwise available pursuant to Rule 9.13. Noting Rule 1.2 and policy concerns as to efficiency, the Respondent further argued that permitting an Applicant to apply to reopen or reargue an Application after having already been denied permission to Appeal invited abuse and waste of judicial resources.

Noting Rule 9.13’s function of affording litigants an opportunity to correct errors or present newly available evidence, and Rule 14.2, which states that, unless otherwise provided, the general Rules govern Appeals, the Court held that Rule 9.13 was available for Applicants to seek to reopen or reargue an earlier Application in appropriate circumstances. However, having regard to the valid policy concerns noted by the Respondent, the Court held that the test for reopening or rearguing the Application must be high.

The Court observed that there was a paucity of case law considering requests to reopen or reargue Applications for which permission to Appeal has previously been refused. Having regard to the nature of the request, the Court held that it was appropriate that the Application be heard by the same single Appeal Judge that heard the earlier Application and the Application for permission to Appeal. Next, the Court held that the request should be considered applying the same factors operative in respect of a request to reopen or reargue an Appeal, pursuant to Rule 14.38(2)(c); namely, whether the outcome in the Application sought to be reopened or reargued resulted from the Court being misled regarding the record before or the nature of the issues, whether the Court overlooked or misapprehended the evidence in a significant respect, or whether patent errors were in the Decision or calculations. The Court emphasized the high burden resting on the Applicant.

Considering the circumstances before it, the Court held that this was not one of the rare cases in which it is appropriate to permit an Application for which permission to Appeal which has previously been denied to be reopened or reargued. In so concluding, the Court noted that in the earlier Application, the Applicants had failed to satisfy any of the criteria for restoring their Appeal. No evidence was submitted in support and the circumstances did not indicate an appropriate case for restoration. As a result, the Application to restore was denied. In their request for permission to Appeal the determination, the Applicants adduced some evidence; however, that evidence was insufficient and, in any event, did not meet the test for admission of new evidence. In their Application to reopen or reargue the original Application, the Applicants introduced further evidence to the effect that their counsel had misled them about the status of their Appeal; however, the Court found that that evidence was neither newly available nor reliable. In the result, the Application to reopen or reargue was denied.

In closing remarks, the Court observed that, had the Orders at issue been entered following their pronouncement, the Court would have been functus officio and the only recourse available to the Applicants would have been an Application for leave to Appeal to the Supreme Court of Canada. The Court noted that where a dispute arises between parties as to the form of an Order, counsel can contact the Court’s Case Management Officers, who have authority to settle the form of an Order, pursuant to Rule 14.77(2). The Court reminded that where a party wishes to dispense with the need for approval as to form of Order or Judgment, permission must be sought pursuant to Rule 9.4(2)(c).