PRACTICE |
Res judicata |
Metro Can Construction Ltd. v. Canada
A-652-98
2001 FCA 227, Rothstein J.A.
28/6/01
4 pp.
Motion under Federal Court Rules, 1998, r. 399(2)(a) for order setting aside June 22, 2000 judgment dismissing Metro Can's appeal from Tax Court decision and for order directing new hearing before five-person bench on ground Court issued allegedly inconsistent decision on December 22, 2000 in Madsen v. Canada (2001), 196 D.L.R. (4th) 332 (F.C.A.)--Application dismissed--Reconsideration narrow exception to doctrine of res judicata--R. 399(2)(a) permitting Court to set aside, vary order by reason of matter arising or discovered subsequent to making of order--In Jhajj v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 369 (T.D.) determined subsequent decisions of higher court not "matter that arose . . . subsequent" as those words used in r. 399(2)(a)--Same principle would apply to subsequent decisions of same Court--In Jhajj decided reconsideration on basis of subsequently decided case law not reconcilable with res judicata doctrine and that, taken in this context, matter not including subsequent decisions of higher court--If matter included subsequent decisions, reconsideration could be sought in any previous case whenever change in law resulting in different disposition of previous case--Further, would create unacceptable uncertainty for litigants, public who must be satisfied that once judgment rendered, it is final--No reason to depart from this analysis, conclusion--Applicant citing Ontario, House of Lords decisions standing for proposition that where change in law, res judicata doctrine will not always prevent decided issue from being relitigated in subsequent proceedings: Minott v. O'Shanter Development Co. (1999), 168 D.L.R. (4th) 270 (Ont. C.A.); Robb v. St. Joseph's Health Care Centre, [2001] O.J. No. 606 (C.A.) (QL); Arnold v. National Westminster Bank Plc., [1991] 2 A.C. 93 (H.L.)--None of these reconsideration cases, and not standing for proposition subsequent decisions that change law should be basis for reconsidering previously decided cases--Fundamental difference between permitting issue decided being relitigated, redetermined in subsequent litigation on basis of change in law on one hand, and reopening previously decided case on basis of change in law on other--Only latter would lead to reconsideration of indefinite number of previous cases, result not reconcilable with rationale for res judicata doctrine--As to injustice if Court not reopening appeal, noted Supreme Court of Canada dismissed leave application even though alleged inconsistency raised ([2000] S.C.C.A. No. 445)--Federal Court Rules, 1998, SOR/98-106, r. 399(2)(a).