Mujagic v. Kamps et al., 2015 ONCA 360

• Judge: Doherty, Gillese and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 20, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 360;(2015), 335 O.A.C. 195 (CA)

Mujagic v. Kamps (2015), 335 O.A.C. 195 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MY.029

Mirsada Mujagic , Armela Mujagic and Belmir Mujagic (plaintiffs/ moving parties ) v. Annette Kamps and State Farm Mutual Automobile Insurance Company (defendants/ responding party )

(M44355; M44948; 2015 ONCA 360)

Indexed As: Mujagic v. Kamps et al.

Ontario Court of Appeal

Doherty, Gillese and Lauwers, JJ.A.

May 20, 2015.

Summary:

Mujagic was in a car accident in 2001. She sued. The action was tried in 2011. The defence argued that Mujagic's significant pain and disability associated with spine and neck problems were not caused by the 2001 car accident. The jury found the defendant 30% responsible for the accident, but awarded zero damages. Mujagic appealed.

The Ontario Divisional Court, in a decision reported at [2014] O.A.C. Uned. 785, dismissed the appeal. Mujagic sought leave to appeal.

The Ontario Court of Appeal refused leave to appeal. Mujagic brought a motion asking the Court of Appeal to reconsider the refusal to grant leave to appeal from the judgment of the Divisional Court. Counsel submitted that the decision in Westerhof v. Gee Estate (2015 ONCA), which was released after leave to appeal was refused, had significantly changed the interpretation of rule 53.03. Counsel submitted that, in light of the interpretation of rule 53.03 provided in Westerhof, the trial judge improperly excluded important opinion evidence from two of Mujagic's treating physicians.

The Ontario Court of Appeal dismissed the motion. The court had no jurisdiction to set aside or vary its prior decision refusing leave to appeal. The motion would also fail on its merits.

Courts - Topic 2109

Jurisdiction - Appellate jurisdiction - Reconsideration of decisions - [See second Practice - Topic 6101 ].

Practice - Topic 6101

Judgments and orders - Amendment, rescission and variation of judgments and orders - Jurisdiction - The moving parties brought a motion asking the Court of Appeal to reconsider its refusal to grant leave to appeal from a decision of the Divisional Court - Rule 59.06(2)(a) provided that "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; ... may make a motion in the proceeding for the relief claimed" - The moving parties submitted that a change in the jurisprudence effected by a decision of the Ontario Court of Appeal, which was released after leave to appeal was refused in this case, amounted to a "fact arising" after the decision refusing leave to appeal was made - The Ontario Court of Appeal rejected that submission - The court stated that "Rule 59.06(2)(a), by its plain meaning, speaks to 'facts arising or discovered' and not to jurisprudential changes. New facts, like all facts, are found in evidence, not in the statute books or case law" - See paragraphs 8 to 10.

Practice - Topic 6101

Judgments and orders - Amendment, rescission and variation of judgments and orders - Jurisdiction - Mujagic was in a car accident in 2001 - She sued - The action was tried in 2011 - The defence argued that Mujagic's significant pain and disability associated with spine and neck problems were not caused by the 2001 car accident - The jury found the defendant 30% responsible for the accident, but awarded zero damages - Mujagic appealed - The Ontario Divisional Court dismissed the appeal - Mujagic sought leave to appeal - The Ontario Court of Appeal refused leave to appeal - Mujagic brought a motion asking the Court of Appeal to reconsider the refusal to grant leave to appeal - Counsel submitted that the decision in Westerhof v. Gee Estate (2015 ONCA), which was released after leave to appeal was refused, had significantly changed the interpretation of rule 53.03 - Counsel submitted that, in light of the interpretation of rule 53.03 provided in Westerhof, the trial judge improperly excluded important opinion evidence from two of Mujagic's treating physicians - The Ontario Court of Appeal dismissed the motion - Rule 61.16(6.1) applied to a motion to reconsider the court's decision refusing leave to appeal - The moving parties could not bring themselves within either rule 37.14 or rule 59.06 - The court therefore had no jurisdiction to set aside or vary its prior decision refusing leave to appeal - The motion would also fail on its merits - Even where the court had power to reconsider a decision because an order had not been taken out, that power would be exercised sparingly and only where it was clearly in the interests of justice - The interests of justice would not favour reconsidering the refusal of leave in this case - See paragraphs 5 to 16.

Practice - Topic 6107

Judgments and orders - Amendment, rescission and variation of judgments and orders - Amendment or variation - Circumstances permitting - [See second Practice - Topic 6101 ].

Practice - Topic 9090.2

Appeals - Supreme Court of Canada - Leave to appeal - Extension of time for - General - The moving parties brought a motion asking the Court of Appeal to reconsider its refusal to grant leave to appeal from a decision of the Divisional Court - The Ontario Court of Appeal dismissed the motion - The moving parties had also asked the court to extend the time for delivery of an application for leave to appeal to the Supreme Court of Canada, should the court decline to reconsider its earlier decision refusing leave - The court stated that "This court would appear to have jurisdiction to grant the requested extension: Supreme Court Act, R.S.C. 1985, c. S-26, s. 59(1). The Supreme Court of Canada, as the court of last resort, has total control over its own docket in civil matters. Except in the most unusual circumstances, questions relating to access to that court should be addressed by that court. The moving parties have not advanced any persuasive reason for this court to make an order in respect of a proceeding in the Supreme Court of Canada. I would not make any order extending the time for delivery of an application for leave to appeal to the Supreme Court of Canada" - See paragraphs 17 to 18.

Cases Noticed:

Westerhof v. Gee Estate (2015), 331 O.A.C. 129; 2015 ONCA 206, refd to. [para. 1].

Holmes Foundry Ltd. v. Village of Point Edward, [1963] 2 O.R. 404 (C.A.), refd to. [para. 5].

Montague v. Bank of Nova Scotia (2004), 180 O.A.C. 381; 69 O.R.(3d) 87 (C.A.), refd to. [para. 5].

Aviva Canada Inc. et al. v. Pastore (2012), 300 O.A.C. 355; 2012 ONCA 887, refd to. [para. 5].

First Elgin Mills Developments Inc. v. Romandale Farms Ltd. et al., [2015] O.A.C. Uned. 31; 381 D.L.R.(4th) 114; 2015 ONCA 54, refd to. [para. 5].

Trainor v. Canada Customs and Revenue Agency, [2011] O.A.C. Uned. 696; 2011 ONCA 794, refd to. [para. 10].

Trainor v. Canada Customs and Revenue Agency, [2012] O.A.C. Uned. 372; 2012 ONSC 3450, refd to. [para. 10].

Metro Can Construction Ltd. v. Minister of National Revenue (2001), 273 N.R. 273; 203 D.L.R.(4th) 741; 2001 FCA 227, refd to. [para. 10].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 37.14, rule 59.06(2)(a) [para. 8]; rule 61.16(6.1) [para. 6].

Counsel:

Rodney M. Godard, for the moving parties;

Kieran C. Dickson, for the responding party.

This motion was heard in writing by Doherty, Gillese and Lauwers, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Doherty. J.A, and was released on May 20, 2015.