Reconsideration of a Court Decision

The court in Re Grace Estate 2022 BCSC 1283 reconsidered it’s decision prior to entry of the order as a result of a binding series of authorities that were not argued at the hearing.

A Court is not ” functus officio” ( a task performed and therefor of no further force or authority)  (  until the court order is entered.: Dowell v. Hamper, 2019 BCSC 1592 [Dowell] at paras. 14-17. As stated by Justice Kent in Dowell at para. 17:

… [T]he summary trial judge has unfettered discretion to reconsider and even reverse a summary trial judgment that has not yet been formally entered in the registry, it is a discretion that must be exercised with restraint and one governed by an overarching consideration whether such reconsideration is in the interests of justice in the unique circumstances of the case.

Many of the cases in which the court’s discretion to reconsider a decision is invoked deal with new evidence.

The court in Grace Estate 2022 BCSC 1283 reconsidered it’s decision prior to entry of the order as a result of a binding series of authorities that were not argued at the hearing.

Henry v. North Shore Taxi (1966) Ltd., [1992] B.C.J. No. 741 (S.C.) [Henry] was a case in which the applicant applied to reopen to present further submissions of law. As Justice Fraser put it at para. 12, “Put baldly, what Mr. Ashcroft seeks to do is make submissions that my judgment was wrong in law”.

Justice Fraser referred at para. 12 to the decision of Justice Finch in Signcorp v. Vancouver (City) (1986), 9 B.C.L.R. (2d) 238 (S.C.).

In that case, Finch J. permitted the losing party, after judgment had been rendered, to make further submissions on the basis that his decision was based on a point not argued. Having heard those submissions, Finch J. reversed himself. Justice Fraser wrote that the key to Signcorp was that the legal point in issue was not before the court at the original hearing.

He referred to the decision of the Court of Appeal in Menzies v. Harlos (1989), 37 B.C.L.R. (2d) 249 (C.A.) [Menzies] at p. 253 for the following description of when a court might exercise its discretion to rehear or reconsider submissions made during the hearing of an appeal:

It is not unusual for an application to vary to be made and granted where the basis of the application is a demonstrable oversight or error in a particular aspect. An example in the area of fact is an error in calculation in relation to damages. An example in the area of law is reliance on a statute which has been repealed. It is a fundamentally different matter to allow a full re-argument of issues which have been argued and decided – to, as it were, allow a second kick at the cat. That approach seems to be widely used by many American appellate courts but has not generally been part of the tradition of courts in this country or elsewhere in the Commonwealth.
In Henry, Fraser J. declined to reopen the case.

In doing so, he stated at para. 17 that “There is a balance to be struck here between discouraging the relitigation of matters already decided and preventing miscarriages of justice. I would not rule out categorically the proposition that a party might be given leave to argue a matter after judgment which it had the opportunity to argue at the conclusion of trial.” However, the case before the court in Henry was not one in which he considered it appropriate to exercise his discretion to do so.

I am cognisant that the discretion to reconsider “should be exercised sparingly and with great care to avoid unwarranted attempts to disturb the basis for a judgment or to permit a litigant to re-establish a broken down case after discovering the effect of a judgment”: Hodgkinson v. Hodgkinson, 2006 BCCA 158 at para. 36.

As stated by Kent J. in the passage already quoted from Dowell at para. 17, what must guide the exercise of the discretion is “an overarching consideration whether such reconsideration is in the interests of justice in the unique circumstances of the case”.

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