85-A-349
Donna Patricia Saywack (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: SAYWACK V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION)
Court of Appeal, Heald, Urie, and Stone JJ.—
Toronto, April 29; Ottawa, May 20, 1986.
Practice — Judgments and orders — Reversal or variation
— Order of Court of Appeal denying leave to appeal Immi
gration Appeal Board decision — Court asked to reconsider
terms of order under R. 1733 — Whether Court having
jurisdiction to grant relief — R. 1733 exceptional and acted on
only in clear case — Reasons for decision of Board received by
applicant two clear juridical days before hearing of leave to
appeal application — Reasons for decision not before Court —
Applicant not yet having consulted lawyer and supposing
Board's reasons would be before Court — Court decision may
have been different if reasons before it — Board's reasons
"matter ... subsequently discovered" — Applicant acting with
reasonable diligence — Previous order deleted in entirety and
leave to appeal granted — Federal Court Rules, C.R.C., c.
663, RR. 2(1), 324, 337(5)(b), 1102(1), 1301(3), 1733 — Feder
al Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 3 — Rules of
Practice, R.R.O. 1980, Reg. 540, R. 529; Rules of Civil
Procedure, O. Reg. 560/84, R. 59.06(2) — Chancery Orders,
Holmested's Rules and Orders, 1884, Vol. 1, p. 177, O. 330.
Immigration — Deportation — Landed immigrant allowed
to enter on condition of getting married within 90 days —
Having falsely represented she was childless —° Fiancé reneg
ing — Deportation ordered — Arguable case Immigration
Appeal Board erred in application of policy of law as to
reunion in Canada of citizens and permanent residents with
relatives abroad — Court of appeal deleting earlier order and
granting leave to appeal, reasons for Board decision not having
been before Court when leave application denied — Immigra
tion Act, 1976, S.C. 1976-77, c. 52, ss. 3(c), 27(1)(b),(e), 32(2),
72 (as am. by S.C. 1984, c. 21, s. 81), 84.
The applicant, who had entered Canada as a landed immi
grant, was ordered deported by an adjudicator on the ground
that the condition of her admission—that she marry her fiancé
within 90 days of admission—had not been met and also
because she had failed to declare the existence of a daughter.
Her appeal to the Immigration Appeal Board was dismissed
on the ground that to admit the applicant to Canada could
mean a permanent separation of mother and child, a result
directly contrary to the policy set out in paragraph 3(c) of the
Act (to facilitate the reunion in Canada of Canadian citizens
and permanent residents with close relatives from abroad).
The applicant sought leave to appeal from that decision but,
having received the reasons for decision only two clear juridical
days before this Court was to decide that application, failed to
arrange for their transmission to the Court in time. The
application was dismissed.
This is an application under Rule 1733 in which the Court is
asked to reconsider its dismissal of the application for leave to
appeal. It is argued that the Board erred in its interpretation of
an underlying policy of the law as expressed in paragraph 3(c)
of the Act and that the Board's reasons constitute a "matter ...
subsequently discovered" within the meaning of Rule 1733.
Held, the application should be allowed and the application
for leave to appeal granted.
The applicant has presented an arguable case that the Board
erred in its interpretation of paragraph 3(c). It may be argued
that, contrary to what the Board held, the permanent residence
of the applicant in this country would not offend against the
"reunion of relatives" policy. And the interpretation of that
policy played an important part in the Board's decision.
The main issue is whether the Court has jurisdiction under
Rule 1733 to grant the relief claimed. In other words, can the
Board's reasons be considered as "matter ... subsequently
discovered". Rule 1733 is exceptional and there has to be a
clear case before the Court will be induced to act under it.
"Matter" is a word of broad enough import, as evidenced by
dictionary definitions and by the case law, to include the
Board's reasons. And those reasons were "subsequently discov
ered". The applicant received them only two clear juridical
days before the Court was to decide the application. And
because their significance could not be made apparent until
they had been reviewed and explained to the applicant by a
professional advisor, the Board's reasons cannot be said to have
been "discovered" by her until she consulted a lawyer.
The applicant exercised reasonable diligence throughout. She
had requested the reasons shortly after receiving the Board's
decision, written a letter advising that they were required for
her "appeal" and had consulted a lawyer without undue delay
following their receipt.
CASES JUDICIALLY CONSIDERED
APPLIED:
Dumble v. Cobourg and Peterborough R. W. Co. (1881),
29 Gr. 121 (Ch.); Soo Mill & Lumber Co. Ltd. v. City of
Sault Ste. Marie (1972), 29 D.L.R. (3d) 129 (Ont.
H.C.); Murray-Jensen Mfg. Ltd. v. Triangle Conduit &
Cable (1968) Can. Ltd. (1984), 46 C.P.C. 285 (Ont.
S.C.); Re Bell, [1947] O.W.N. 801 (C.A.).
CONSIDERED:
Flower v. Lloyd (1877), 6 Ch.D. 297 (C.A.).
REFERRED TO:
Kramer v. The Queen, [1976] 1 F.C. 242 (T.D.); Smith
v. Merchants Bank of Canada (1917), 40 O.L.R. 309
(C.A.).
COUNSEL:
Hart M. Schwartz for applicant.
U. K. Kaczmarczyk for respondent.
SOLICITORS:
Chiasson, Jackman, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
STONE J.: By this application the Court is asked
"to reconsider the terms" of our order of October
8, 1985 by which we dismissed an application
brought pursuant to Rule 324 [Federal Court
Rules, C.R.C., c. 663] for leave to appeal to this
Court from a decision of the Immigration Appeal
Board. The right to appeal against the Board's
decision is conferred by section 84 of the Immi
gration Act, 1976, S.C. 1976-77, c. 52 as amended
provided "leave to appeal is granted" by us upon
an application made in compliance with that sec
tion. While the applicant invokes the provisions of
both Rule 337(5)(b) and Rule 1733, her submis
sions before us were limited to reliance upon the
provisions of the latter Rule. The application must
therefore be decided upon an interpretation of that
Rule alone.
The Facts
The decision of the Immigration Appeal Board
was concerned with an application for relief made
pursuant to section 72 of the Immigration Act,
1976 [as am. by S.C. 1984, c. 21, s. 81]. The
applicant entered Canada in February, 1983 as a
landed immigrant on condition that she marry her
fiancé within 90 days of admission. She had earlier
represented to a Canadian immigration official
concerned with her application and the issuance of
a visa that she had no children when, in fact, she
was the mother of a young daughter who also
resided in her home country. After her arrival in
Canada, her fiancé reneged on his promise to
marry her.
The applicant promptly reported the changed
circumstances to immigration authorities in
Canada and, in due course, an inquiry was held
pursuant to the statute. She was ordered deported
by an adjudicator both on the ground that she had
not met the condition of her admission within the
period specified and also because, before admission
to Canada, she had misrepresented the existence of
her child. Accordingly, she was found to have
contravened paragraphs 27(1)(b) and (e) of the
Immigration Act, 1976. Those paragraphs read:
27. (1) Where an immigration officer or peace officer has in
his possession information indicating that a permanent resident
is a person who
(b) if he was granted landing subject to terms and conditions,
has knowingly contravened any such term or condition,
(e) was granted landing by reason of possession of a false or
improperly obtained passport, visa or other document per
taining to his admission or by reason of any fraudulent or
improper means or misrepresentation of any material fact,
whether exercised or made by himself or by any other person,
or
he shall forward a written report to the Deputy Minister setting
out the details of such information.
The obligation to deport an individual found after
inquiry to be a person described in either of those
paragraphs is granted to an adjudicator by subsec
tion 32(2) of the Act.
The applicant then appealed the deportation
order to the Immigration Appeal Board pursuant
to subsection 72(1) of the Act. That subsection
provides:
72. (1) Subject to subsection (3), where a removal order is
made against a permanent resident or against a person lawfully
in possession of a valid returning resident permit issued to him
pursuant to the regulations, that person may appeal to the
Board on either or both of the following grounds, namely,
(a) on any ground of appeal that involves a question of law or
fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circum
stances of the case, the person should not be removed from
Canada.
The appeal was heard at Toronto on June 26, 1985
and the Board's decision dismissing it was ren
dered on July 3, 1985.
After receipt of that decision on July 8 the
applicant decided to seek leave to appeal from this
Court. To that end she retained the services of a
law clerk having found that two Toronto immigra
tion lawyers whom she had approached were not
free to act in the matter. The clerk prepared a
notice of motion and supporting affidavit which
the applicant filed on July 15, 1985. At the same
time, the clerk drafted a letter addressed to the
Board. It was signed by the applicant and forward
ed to the Board. A copy of that letter was filed
with the Court as an exhibit to the supporting
affidavit. It is dated July 12, 1985 and reads in
part:
I am going to appeal the decision of the Immigration Board
dated the 3rd day of July, 1985 to the Federal Court of
Canada. I am requesting a copy of the Board's reasons for
judgment.
On August 2, 1985 with the assistance of the
law clerk the applicant filed with the Court written
submissions in support of her application. That
was done after she had been informed by a Regis
try Officer that her submissions were to be filed by
that date as otherwise "the matter may be dealt
with on the material then before the Court". She
took the respondent's submissions opposing leave
to the clerk in timely fashion with instructions to
respond to them but the clerk did nothing.
I come next to the facts which bear most direct
ly upon the application before us. They are con
tained in paragraphs 7 and 8 of the applicant's
affidavit sworn in these proceedings on October
17, 1985. The evidence contained in those para
graphs was not contradicted and there is no reason
why it should not be taken as written. She swore:
7. On October the 3rd, 1985, I received a notification in my
mail that a registered package had been sent for me and was
available for pick up at the Downsview Postal Station "P". I
attended at that Postal Station and, at that time, received the
reasons for the decision of the Immigration Appeal Board,
dated the 24th day of September, 1985, and Exhibit "A" to this
Affidavit, the transcript of my appeal hearing. Attached hereto
and marked as Exhibit "B" to this my Affidavit is a true copy
of the reasons of the Immigration Appeal Board and the
covering letter which accompanied them.
8. After reading the reasons of the Board, on Thursday,
October 3, 1985, I was advised to obtain the services of a
lawyer to see if the problems which I was having in presenting
my application for leave to appeal properly before this Honour
able Court could be straightened out. I did not know that the
Court would not also have a copy of the reasons of the Board's
decision sent to them. I was able to obtain an appointment with
Ms. Geraldine Sadoway on October 10, 1985. Ms. Sadoway
was unable to take my case but referred me to my present
lawyer whom I met with on the evening of October the I1th,
1985. I am informed that my present lawyer contacted the
Registrar of this Honourable Court in Toronto, on Tuesday the
15th day of October, 1985, after the long weekend, and was
informed that my case file would be brought forward for review
by the Court on the 18th day of October as the Court was
awaiting Reply submissions from me to the written submissions
of the Respondent. I am informed that my counsel notified the
Registrar that he would seek to file these Reply submissions
along with an application seeking to file new submissions in
light of the Board's reasons which I had just received. However,
on the afternoon of October 15, 1985, I received by Registered
Mail the order of this Honourable Court made on October the
8th, 1985, and dated October the 9th, 1985, dismissing my
application for leave to appeal.
The issues
Two questions are involved in this application.
The first is whether this Court is authorized by
Rule 1733 to reconsider and to vary our order of
October 8, 1985 and, secondly, even if it is, wheth
er the case is a proper one for the granting of leave
to appeal. It will, perhaps, be convenient to deal
with these questions in reverse order for if we were
to decide that the case is not a proper one for
leave, there would then be no need to take up the
jurisdiction question in Rule 1733.
Merits of the Leave Application
The Board's reasons for decision are before us as
an exhibit to the applicant's affidavit of October
17, 1985. It found no basis for intervening under
paragraph 72(1)(a) of the Act and, in fact, it was
conceded in that proceeding that the adjudicator
had not erred in law. The question thus turned on
the availability of relief under paragraph 72(1)(b).
The applicant obviously made a most favourable
impression upon the Board for it found in its
reasons (at page 3) that she "has all the qualities
which Canada would expect in any immigrant:
Tenacity, honesty, and a determination to improve
her lot". In deciding to dismiss the appeal the
Board gave the following reasons (at pages 3-4):
The difficulty however is that Miss Saywack did not enter
Canada in the normal way as an independent immigrant would
have done. Special considerations were given to her because of
her presumed engagement, and she was permitted to enter
Canada without her child having undergone the usual examina
tions which are conducted on all dependants. These examina
tions, of course were evaded by reason of Miss Saywack's
suppression of the existence of the little girl. In other words,
because of her engagement and the concealment of dependants,
the appellant side-stepped the more stringent admission
requirements imposed upon all immigrants. Against this we
have a little girl who has been left behind in the old country
and who is separated from her mother by a deliberate act on
the part of her mother. To accede to the appellant's plea for
special consideration could result in permanent separation of
mother and child, a result directly contrary to that envisaged by
paragraph 3(c) (to facilitate the reunion in Canada of Canadi-
an citizens and permanent residents with their close relatives
from abroad) of the Immigration Act, 1976. The Board feels
that the appellant has failed to show sufficient circumstances
which would warrant the Board exercising its special powers
and, accordingly, the appeal is dismissed pursuant to paragraph
72(1)(b) of the Immigration Act, 1976.
It would not be proper at this stage of the
proceedings to express a final view on the merits of
the appeal. On the other hand, I think the appli
cant has presented an arguable case. That is all
she need do. It would seem arguable that the
Board erred in its appreciation of an underlying
policy of the law as expressed in paragraph 3(c)
the full text of which reads:
3. It is hereby declared that Canadian immigration policy
and the rules and regulations made under this Act shall be
designed and administered in such a manner as to promote the
domestic and international interests of Canada recognizing the
need
(c) to facilitate the reunion in Canada of Canadian citizens
and permanent residents with their close relatives from
abroad; (Emphasis added.)
The applicant argues with some force, it seems to
me, that the Board misinterpreted the language of
that paragraph. I think it is an argument that
should be heard in appeal provided the way is
otherwise open. As paragraph 3(c), by its lan
guage, is directed toward the reunion "in Canada"
of Canadian citizens and permanent residents with
their close relatives from abroad, the permanent
residence of the applicant in this country, it may
be argued, would not offend against that policy.
Nor would it appear that the Board's views on the
point constituted a mere afterthought and that it
had decided to dismiss the appeal for some other
reason. True, it also considered that the applicant
had misrepresented the existence of her child but I
am quite unable to say that the Board rejected the
appeal solely because of it. The text of its reasons
rather strongly suggests that the contrary is true
and that its appreciation of the statutory policy as
expressed in paragraph 3(c) of the Act played an
important part in its overall decision to dismiss the
appeal pursuant to paragraph 72(1) (b) thereof.
Rule 1733
The decisive question is whether the Court has
jurisdiction under Rule 1733 to grant the relief
claimed. That Rule reads:
Rule 1733. A party entitled to maintain an action for the
reversal or variation of a judgment or order upon the ground of
matter arising subsequent to the making thereof or subsequent
ly discovered, or to impeach a judgment or order on the ground
of fraud, may make an application in the action or other
proceeding in which such judgment or order was delivered or
made for the relief claimed.
The Rule appears in Part VI, "Rules Re Special
Cases and Particular Problems" under a sub-head
ing entitled "Setting Aside Judgments for New
Matter or Fraud". Such a Rule was not among the
General Rules and Orders of the Exchequer Court
of Canada which passed out of existence with the
establishing of the Federal Court of Canada in
1971.
The applicant submits that the Rule clothes this
Court with ample authority to grant the relief
claimed. Had the Board's reasons been before the
Court, she contends, leave would have been grant
ed. The reasons are "matter ... subsequently dis
covered", she says, and therefore the Rule applies.
On the other hand, the respondent urges that
the reasons are not "matter" at all but merely a
part of the Board's record that could have been
brought before the Court in good time before the
order was made upon due compliance with Rule
1301(3):
Rule 1301. .. .
(3) Where an applicant wishes to rely on material in the
posession of the tribunal whose order or decision is the subject
of the proposed appeal, whether it be the whole of that tribu
nal's relevant file or some particular material, he may serve, on
the appropriate officer of the tribunal, a copy of the notice of
the application for leave to appeal with a request attached
thereto that such material be transmitted to the Administrator
of the Court so as to be available to the Court at the time of the
application; and when such a request is so served, the tribunal
shall cause the material requested to be transmitted to the
Administrator of the Court, or, if for any reason it is impossible
to do so, it shall so inform the applicant and the Administrator
in writing and shall send a senior responsible officer to Court
on the return of the application to answer any questions that
the Court may have with regard thereto.
The respondent also contends that even if the
reasons are "matter" they were not "subsequently
discovered" because the applicant had them in her
possession in advance of October 8, 1985. There
was still time to bring the reasons to the attention
of the Court, it is argued, and the fact that it was
not done shows that the applicant failed to exercise
reasonable diligence as she was bound to do. It is
argued that there must be finality in this case as,
indeed, in all litigation.
The Rule must be seen as exceptional. It pur
ports to permit relief in an action or proceeding
subsequent to its disposition by solemn pronounce
ment of the Court even though that relief would be
at variance or even wholly contrary to that pro
nouncement. Yet, if it covers an application the
Court may grant relief. Obviously, a case would
have to be a clear one before the Court will be
induced to act under the Rule. Otherwise, the
finality of judgments would be imperilled and that
would be bad.
I would note that the availability of relief for the
discovery of new matter or for fraud depends
initially upon a claimant bringing his application
within the language found in the first part of the
Rule.' I repeat that language to the extent neces
sary for the sake of convenience:
A party entitled to maintain an action for the reversal or
variation of a judgment or order upon the ground of matter ...
subsequently discovered ...
What is meant by these words? Unfortunately, we
do not have the guidance of a previous decision of
this Court to assist us. 2 That may be explained in
part by the fact that Rule 1733 is as new to this
' The Rule would appear to contemplate relief from either
division of the Court depending on which division delivered the
original judgment or order. The presence of the words "or other
proceeding" in the second part of the Rule seems to recognize
that the judgment or order may have been made by either
division of the Court in an original process assigned under the
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 or other
statute and of which the application for leave to appeal herein
is an example. The discovery of "matter" or fraud in such
process would entitle a party to invoke the Rule and thereby
obtain relief provided, in a case of this kind, the prerequisites
discussed infra are met. The Rule read as a whole and in the
light of the powers conferred on this Court by way of original
process suggests that the word "action" in the first part thereof
should be read to include a proceeding in this Court rather than
be limited to an "action" as defined in Rule 2(1) and which by
its terms is to apply "unless the contrary otherwise appears".
Moreover, as is made plain in section 3 of the Federal Court
Act, the Court is a "court of law, equity and admiralty"
(emphasis added) and, as we shall see, the relief made available
under Rule 1733 derives from the equitable jurisdiction of the
old Court of Chancery in England.
2 See, however, the views expressed by the Trial Division (per
Walsh, J.) in Kramer v. The Queen, [1976] 1 F.C. 242, at page
245.
Court as this Court is itself. On the other hand, as
will be seen shortly, a somewhat similar rule has
been a feature of the rules governing practice in
the Supreme Court of Ontario for almost 100
years. As the language of Rule 1733 is obscure in
some respects, I think it may be useful to consider
its derivation in the light of that rule and the
practice that prevailed before it was first adopted.
At the time Rule 1733 was adopted, the Ontario
Rules of Practice [R.R.O. 1980, Reg. 540] con
tained Rule 529 reading as follows:
529. A party entitled to maintain an action for the reversal or
variation of a judgment or order upon the ground of matter
arising subsequent to the making thereof or subsequently dis
covered, or to impeach a judgment or order on the ground of
fraud, or to suspend the operation of a judgment or order, or to
carry a judgment or order into operation, or to any further or
other relief than that originally awarded, may move in the
action for the relief claimed.
Though it is broader in scope, the common fea
tures of both rules lead me to think that our Rule
1733 was drafted with an eye to the Ontario Rule.
That Rule made its appearance in Ontario in 1888
as Rule 782 following the merger of the courts of
common law and equity and has been continued in
effect with minor variations down to 1985 when it
was replaced by a new Rule (Rule 59.06(2) [Rules
of Civil Procedure, O. Reg. 560/84]).' But, even
before the merger, a still earlier version appeared
in the Chancery Orders of the old Ontario Chan
cery Court as Order 330 under Part XXVI, "Pro-
ceedings to Reverse, Alter, or Explain, Decrees, or
Orders" [see Holmested's Rules and Orders,
1884, Vol. 1, p. 177]. It may be useful to compare
3 59.06...
(2) 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;
(b) suspend the operation of an order;
(c) carry an order into operation; or
(d) obtain other relief than that originally awarded,
may make a motion in the proceeding for the relief
claimed.
its full text with that of the later rules. It dates at
least to 1853 and read:
330. Any party entitled by the former practice to file a bill of
review, praying the variation or reversal of an order, upon the
ground of matter arising subsequent to the order, or subse
quently discovered, or a bill in the nature of a bill of review, or
a bill to impeach a decree on the ground of fraud, or a bill to
suspend the operation of a decree, or a bill to carry a decree
into operation, is to proceed by petition in the cause, praying
the relief which is sought, and stating the grounds upon which
it is claimed.
The "former practice", it appears, was based at
least in part upon the practice of the old Court of
Chancery in England which had power to vary or
reverse a decree even after its sealing and enrol
ment, inter alia, upon the discovery of new matter
or upon the ground that the decree was obtained
by fraud. That practice is discussed by the text-
writers (see e.g. Mitford's A Treatise on the
Pleadings in Suits in the Court of Chancery, (5th
ed., 1847) at page 101 et seq.; Story's Commen
taries on Equity Pleadings and the Incidents
Thereof, (10th ed., 1892) at page 386 et seq. and
Daniell's Chancery Practice, (8th ed., 1914), Vol.
2 at page 1327 et seq.). It did not, however, allow
for relief upon a motion in the original action.
Relief was available only by way of a bill of review
which, in effect, was a fresh action allowing for the
reversal or variation of the original decree. If the
case was one of fraud, a bill of review could be
secured without leave of the Court. On the other
hand, if it involved discovery of new matter the
practice was slightly different. It was described by
Jessel M.R. in Flower v. Lloyd (1877), 6 Ch.D.
297 (C.A.), at page 300:
There was another totally different class of cases where you
discovered subsequent matter which shewed that the decree was
wrong, although there had been no fraud in obtaining it. That
was called a supplemental bill in the nature of a bill of review,
which brought the new matter forward, and again enabled the
Court to do justice and get rid of the original decree. That
always required leave.
I would stress, however, that leave would not be
granted under the old practice unless the Court
was first satisfied of certain essential prerequisites
which were developed in England but were applied
in Ontario as well. They are mentioned in Dumble
v. Cobourg and Peterborough R. W. Co. (1881),
29 Gr. 121 (Ch.) where Ferguson J. stated at
pages 132-133:
This petition is one in the nature of a bill of review on the
ground of having discovered some new evidence, and the case of
Hoskin v. Terry ((1862) 15 Moore's P.C.C. 493, 8 Jur. N.S.
975), seems to be a leading if not the leading case on the
subject. That case was an appeal to reverse an order made by
the Supreme Court of the colony of New South Wales; and
Lord Kingsdown, who delivered the judgment of the Court,
said: "The rule which we collect from the cases cited in the
argument is this, that the party who applies for permission to
file a bill of review on the ground of having discovered new
evidence, must shew that the matter so discovered has come to
the knowledge of himself and of his agents for the first time
since the period which he could have made use of it in the suit,
and that it could not with reasonable diligence have been
discovered sooner; and secondly, that it is of such a character
that if it had been brought forward in the suit it might probably
have altered the judgment." And after commenting on the
evidence in that case, his Lordship repeated the language of
Lord Eldon, in Young v. Keighly (16 Ves. 348), which was as
follows: "The evidence, the discovery of which is supposed to
form a ground for this application, is very material, and I am
persuaded that by refusing this application I decide against the
plaintiff in a case in which he might perhaps with confidence
have contended that upon the evidence he was entitled to the
whole money: on the other hand it is most incumbent on the
Court to take care that the same subject shall not be put in
course of repeated litigation, and that with a view to the
termination of suits the necessity of using reasonably active
diligence in the first instance should be imposed upon parties;
the Court, therefore, must not be induced, by any persuasions
as to the fact that the plaintiff had originally a demand which
he could clearly have sustained, to break down rules established
to prevent general mischief, at the expense even of particular
injury." (Emphasis added.)
In my view these tests also apply for the purposes
of Rule 1733 to "matter ... subsequently
discovered".
Ontario Chancery Order 330 provided a sum
mary way of securing relief by "petition in the
cause" instead of by a fresh action and it is
apparent that Ontario Rule 529 and its predeces
sor rules carried that concept forward. That rule
enabled the party complaining "to move in the
action" making it no longer necessary to seek relief
by way of a bill of review or of a supplemental bill
in the nature of a bill of review although, in
Ontario, it remained open to proceed either by way
of motion or by fresh action in the Court which
heard the original action. (See e.g. Smith v. Mer
chants Bank of Canada (1917), 40 O.L.R. 309
(C.A.), at page 316. 4 )
The question whether this application is covered
by Rule 1733 is, of course, one of interpretation.
Nevertheless, I derive some assistance from this
look back at the old practice and to the develop
ment of the Ontario rule after which, I think, Rule
1733 is probably patterned. It is not sufficient
merely that a party has discovered new matter.
Relief is not available under the Rule unless the
aforementioned prerequisites are first met to the
satisfaction of the Court. I am satisfied that our
Rule 1733 does not limit "matter" subsequently
discovered to fresh evidence subsequently dis
covered. It authorizes the Court to look at any
relevant new "matter". No doubt the most
common matter will be evidence subsequently dis
covered and, indeed, many of the decided cases are
of that type. It is significant that the word "mat-
ter" is used in this Rule rather than the word
"evidence". This is to be contrasted with Rule
4 The learned editors of Holmested & Gale's Ontario
Judicature Act and Rules of Practice, Vol. 3 at page 2370
observe that a motion under Rule 529 for new matter "takes
the place of the old common law writ of audita querela
available to a judgment debtor for relief against a judgment,
upon the ground of some matter arising subsequent to the
judgment" and makes no reference either to the practice in the
old Court of Chancery or to Chancery Order 330. By contrast,
this latter practice held out the possibility of relief to any party
to the original action rather than to the defendant alone which
was the case under the old common law writ.
1102(1), 5 for example, which authorizes this
Court to "receive evidence or further evidence
upon any question of fact" (emphasis added).
I am of the view that the Board's reasons fall
within the word "matter". It is a word of broad
import. In The Shorter Oxford English Dictionary
(3rd ed.) it is defined, inter alia, as: "Ground,
reason or cause for doing or being something".
That word has been invoked in Ontario to cover
"matter" other than fresh evidence. Thus, in Soo
Mill & Lumber Co. Ltd. v. City of Sault Ste.
Marie (1972), 29 D.L.R. (3d) 129 (Ont. H.C.), a
bylaw amendment had not been drawn to the
attention of the Trial Judge and it was not suggest
ed that the amendment was outside the Ontario
rule. Again, in Murray-Jensen Mfg. Ltd. v. Tri
angle Conduit & Cable (1968) Can. Ltd. (1984),
46 C.P.C. 285 (Ont. S.C.) the "matter" was a
claim made in a reference ordered by the Trial
Judge and the findings of the Master in his report.
Nor has the Ontario rule been restricted to the
reversal or variation of a judgment or order made
by a judge of first instance for it has been applied
by the Ontario Court of Appeal in setting aside its
own judgment for matter subsequently discovered
(Re Bell, [1947] O.W.N. 801).
I come now to the most troublesome aspect of
this application. The respondent argues that the
matter was not "subsequently discovered" or, if it
was, that reasonable diligence was not exercised.
The record shows that the Board's reasons were
received by the applicant on October 3, being a
Thursday. She read them and then took them to
the law clerk. She was advised to consult a lawyer
5 Rule 1102. (1) The Court of Appeal may, in its discretion,
on special grounds, receive evidence or further evidence upon
any question of fact, such evidence to be taken by oral exami
nation in court, or by deposition, as the Court may direct.
"to see if the problems which I was having in
presenting my application for leave to appeal prop
erly ... could be straightened out". In ordinary
circumstances I would not hesitate in saying that a
person receiving matter prior to the disposition of
an action or proceeding could not be said to have
"subsequently discovered" it. In the present case,
however, it must be remembered that the Board's
reasons were not readily understandable to the
applicant. They told her why the appeal had been
dismissed. I have already quoted from them. They
mention paragraph 3(c) of the Act and go on to
conclude that "the appellant has failed to show
sufficient circumstances which would warrant the
Board exercising its special powers". Frankly, it
does not surprise me that she saw the need to
consult a lawyer about the meaning of those rea
sons and their significance for her leave applica
tion. Such assistance was essential to a clear
understanding of why the appeal had failed and
whether the leave application might succeed. Until
that was done I cannot see how those reasons,
though physically in her possession, could be said
to have been "discovered" by her before the date
of our order of October 8, 1985. Their significance
could not be made apparent until they had been
reviewed and explained to the applicant by a
professional advisor.
Did the applicant exercise reasonable diligence
in the circumstances? I think so. Within a few
days of receiving the Board's decision in July, she
made a request for the reasons. Until they were
received on October 3, 1985 the matter was out of
her control. I am satisfied that she acted with
commendable speed after their receipt. She again
looked to the clerk for assistance. She was advised
to consult a lawyer and she did so without undue
delay. Only after so doing could she understand
their true significance for her leave application.
She cannot be fairly accused of being asleep at the
switch. Only two clear juridical days intervened
between October 3 and October 8. She acted
promptly but, as it turned out, not quite in time. In
this, she misled herself in thinking that the reasons
would have reached the Court but her unfamiliari
ty with Rule 1301(3) cannot excuse her. On the
other hand, she made it plain in her letter of July
12 that the Board's reasons were required for her
"appeal". I think she acted with reasonable dili
gence throughout. I view the circumstances as
most exceptional.
Disposition
Finally, as I have already concluded that having
regard to the Board's reasons the case is a proper
one for leave, it must follow that the result of the
leave application would have been different had
those reasons reached this Court before October 8,
1985. In summary, I think the applicant is entitled
to the relief claimed on this application. I would
therefore allow the application and would vary the
order of this Court dated October 8, 1985 by
deleting the said order in its entirety and substitut
ing therefor the following:
"The application for leave to appeal is granted."
I do not think the case is a proper one for costs.
HEALD J.: I concur.
URIE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.