Court Of Appeal Summaries (October 5, 2015 – October 9, 2015)

The Ontario Court of Appeal only released two substantive civil decisions this week, along with many more endorsements and criminal law decisions. The civil cases involved an issue of an alleged conflict of interest of a Vaughan city councillor (no conflict was found), and the re-opening of a trial in light of fresh evidence uncovered by the CBC's show, Marketplace.

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Civil Cases

Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670

[Cronk, Lauwers and van Rensburg JJ.A.]

Counsel: Golam Mehedi, acting in person R. K. Agarwal and J. Marcus appearing as amicus curiae D. Smith, acting in person and as agent for all respondents

Keywords: Contract Law, Rules of Civil Procedure, Rule 59.06, Rule 50.06(2)(a), Motion to Set Aside Trial Judgment, Fresh Evidence, Tsaoussis (Litigation Guardian of) v Baetz, 671122 Ontario Ltd. v Sagaz Industries Canada Inc., Standard of Review, Deference

Facts:

The respondents, 2057161 Ontario Inc. operating as ("Job Success"), is a job placement agency in Toronto. Job Success promised to find the appellant, Golam Mehedi ("Mehedi"), a job that paid $70,000 per year within two months. In return, Mehedi paid Job Success $3,700. Job Success did not find Mehedi a job, so Mehedi sued.

At trial, the judge found that Job Success did not promise Mehedi a job with that salary in that time frame. Mehedi was unsuccessful.

After the trial, CBC's television program Marketplace broadcasted an episode titled "Recruitment Rip-off." The episode exposed a Toronto recruitment agency exploiting vulnerable, unemployed persons by promising to find them jobs with salaries like Mehedi was promised. The business featured in the program showed the defendants promising prospective clients these jobs, and featured a witness as well.

Mehedi wanted to introduce the episode as fresh evidence and was advised to bring a motion before a motion judge of Superior Court under Rule 59.06(2)(a) to set aside the order on the ground of fraud or facts arising or discovered after the order was made. Mehedi brought the motion to introduce the episode and a similar article from the Metro newspaper. The motion judge dismissed Mehedi's motion under Rule 59.06(2)(a) because he believed that the new evidence would not reasonably affect the outcome of the trial. Mehedi was ordered to pay $500 to the defendant.

Mehedi appealed the motion judge's dismissal of his 59.06 motion.

Issues:

(1) Did the motion judge err in dismissing the motion?

Holding: Appeal allowed. The trial should be re-opened and the matter remitted to trial judge for reconsideration in light of the fresh evidence. All previous cost orders against Mehedi are set-aside, including from the first trial. Mehedi is awarded $2,000 for the costs of this appeal.

Reasoning: (1) Yes, the motion judge erred in applying the test for setting aside an order under Rule 59.06(2)(a).

The standard of review for a motion judge's decision under Rule 59.06(2)(a) requires considerable deference. The decision should not be altered unless the motion judge erred in principle, misapprehended or failed to take account of material evidence, reached an unreasonable decision, or if the reasons do not set out the judge's reasoning process and reflect a consideration of the main factors.

The test under Rule 59.06(2)(a) is to be applied after the judgement or other order has been issued. The court applied the test from Tsaoussis (Litigation Guardian of) v Baetz (1998), 41 O.R. (3d) 257 ("Baetz"), where the moving party bears the onus to show that all circumstances...