Motion with new facts must be brought before court that issued original order
The Ontario Court of Appeal has said that it lacks jurisdiction to rule on a motion to set aside an order affirmed on appeal if that motion was based on fraud or newly-discovered facts.
In Salehi v. Association of Professional Engineers of Ontario, 2022 ONCA 511, the plaintiff filed an action for damages against the Association of Professional Engineers of Ontario for its alleged negligent handling of his application as a foreign-trained engineer to be licensed in the province. He argued that the defendant dealt with his application with negligence and in bad faith, although he ultimately received his license.
In 2015, Justice James Diamond of the Ontario Superior Court of Justice dismissed his action, which prompted him to appeal. In 2016, the Ontario Court of Appeal refused leave to appeal upon finding no basis for allowing the appeal.
The plaintiff moved to set aside the appellate court’s decision based on facts arising or discovered after the making of the underlying order under r. 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Specifically, he cited the following:
- the transcript of the summary judgment hearing before Justice Diamond, after which the judge dismissed his action
- several recent letters from professional engineers, with comments on his course transcripts
- two independent reports on the defendant, which included information and comments on its handling of foreign-trained engineers’ licensing applications.
Motion dismissed for jurisdictional reasons
The appellate court ruled that it did not have the jurisdiction to entertain a motion to set aside an order that was affirmed on appeal, if fraud or newly-discovered facts formed the motion’s basis. Instead, the plaintiff should have brought the motion before a judge of the Superior Court, in line with Mehedi v. 2057161 Ontario Inc. (Job Success), 2014 ONCA 604.
The Mehedi case provided that the rationale of rule 59.06(2)(a) – which allowed an order to be set aside if the decision was wrong because of fraud or other facts discovered after the order’s making – would still apply after the determination of an appeal. The appeal merely decided that the trial lacked reversible errors.
The appellate court in this case concluded that the plaintiff required leave of the Superior Court to file a motion to set aside or to vary, given that the Superior Court issued an order in 2018 prohibiting him from bringing further motions in this file.
