Judgments

[1995] 2 F.C. 369

IMM-5192-93

Satwant Jhajj (Satwant Singh Jhaj) (Applicant)

v.

The Minister of Employment and Immigration, Solicitor General of Canada, and the Minister of Public Security (Respondents)

Indexed as: Jhajj v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Rothstein J.—Toronto, June 16, teleconference September 9, 1994; Ottawa, March 31, 1995.

Practice — Res judicata — Scope of R. 1733 allowing reversal, variation of judgments, orders where matter arising subsequent — F.C.T.D. dismissing leave application for judicial review of CRDD decision — Whether subsequent F.C.A. decision basis for reconsideration — Reasons for res judicata doctrine — Necessity for finality of judgments — In public interest there be an end of lawsuits — Society cannot afford interminable litigation — No one should be twice harassed for same cause — R. 1733 exception to general rule — Grounds in R. 1733 difficult to reconcile with doctrine if extended too far — Whether “matter … subsequently discovered” including recent decision not yet reported — Due diligence requirement — Extending R. 1733 to subsequent case law irreconcilable with doctrine — If R. 1733 extending to subsequent case law, courts inhibited from acknowledging previous errors as could face applications to reconsider any number of cases extending back for indefinite period — Res judicata not rendered obsolete by Charter.

Practice — Judgments and orders — Reversal or variation — Application for reconsideration of order denying leave to commence application for judicial review based on subsequently decided decision of higher court in unrelated case — R. 1733 permitting application for reversal, variation of judgment, order based on matter arising subsequent to making thereof or subsequently discovered — Application denied — Matter arising subsequent must be specific to case itself.

This was an application for reconsideration of an order denying leave to commence an application for judicial review of the decision that the applicant was not a Convention refugee based on a subsequently decided Federal Court of Appeal decision in an unrelated case which changed the law upon which the denial had been based. Federal Court Rule 1733 permits an application for reversal or variation of a judgment or order upon the ground of a “matter arising subsequent to the making thereof or subsequently discovered.” No appeal lies to the Federal Court of Appeal from a decision to deny leave.

The applicant argued that decisions affecting refugee claimants affect life, liberty and security of the person and that Rule 1733 must be interpreted broadly to ensure refugee claimants are not denied the protection afforded them under the Charter. The respondents submitted that to reconsider judgments or orders on the basis of new case law would open the floodgates to requests for reconsideration and would create chaos in the administration of justice.

The issue was whether Rule 1733 allows for reconsideration only on the basis of new facts or evidence specific to the case, or whether it allows for reconsideration based on subsequent case law of a higher court.

Held, the application should be dismissed.

Rule 1733 is an exception to the doctrine of res judicata, under which a matter finally adjudicated by a competent court may not be subsequently reopened by the original parties. Rule 1733 must be considered in the context of and be reconcilable as far as possible with the general rule of res judicata.

“Matter” has been interpreted as not being limited only to evidence. A law existing at the time a judgment is rendered, but subsequently discovered could constitute a “matter” within the context of Rule 1733. While interpreting “matter … subsequently discovered” as including subsequently discovered law extends the exception to the res judicata rule, it is still reasonably reconcilable with it. The phrase “matter … subsequently discovered” refers to a matter in existence at the time of the original proceeding, but which, with diligence, could not have been discovered before the original judgment or order was made. The opportunity to raise subsequently discovered case law on reconsideration is narrow. The applicant must demonstrate that due diligence had been exercised in the attempt to obtain all relevant case law prior to judgment. It is unlikely that an applicant could allow much time to pass following release of the relevant case law and still successfully argue that due diligence had been exercised.

As to “matter arising subsequent,” taken in the abstract and having regard to the broad interpretation of “matter,” any new information, including subsequent case law, might ground a reconsideration application as long as reasonable diligence was exercised in bringing the application and the Court was satisfied that the new information would probably alter the original judgment. But such an interpretation is not reasonably reconcilable with the res judicata doctrine. If new case law were considered to be a matter arising subsequent, a decision of a higher court could ground an application for reconsideration in an indefinite number of previous cases in the lower court. Interpreting Rule 1733 to allow for unrestricted retroactive effect would be detrimental to the proper and desirable performance of the Court’s function in that it could inhibit the Court from freely making decisions, developing the law and acknowledging previous errors. Also, if “matter arising subsequent” were to include new case law, the uncertainty that would be created would be unacceptable. Both the parties and the public must be satisfied that a judgment, once rendered, is final. Judgments can only be reconsidered on the basis of facts, circumstances or other matters arising subsequent which are specific to the case itself, that would indicate the original judgment or order was or had become inappropriate. Rule 1733 does not permit reconsideration based upon subsequently decided case law of a higher court.

The Charter does not render obsolete the principle of res judicata. The importance of finality in judicial decisions is not obviated even when Charter rights are at issue.

The existence of alternative recourse or lack thereof does not affect the interpretation of Rule 1733.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Federal Court Rules, C.R.C., c. 663, RR. 337(5),(6), 1733.

Immigration Act, R.S.C., 1985, c. I-2, s. 82.2 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73).

Immigration Regulations, 1978, SOR/78-172, s. 11.4 (as enacted by SOR/93-44, s. 10; 93-412, s. 6).

Mechanics’ Lien Act, R.S.O. 1950, c. 227.

Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48.

CASES JUDICIALLY CONSIDERED

APPLIED:

Saywack v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 189 (1986), 27 D.L.R. (4th) 617 (C.A.); Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; (1989), 59 D.L.R. (4th) 321; [1989] 4 W.W.R. 193; 58 Man. R. (2d) 161; 26 C.C.E.L. 1; 10 C.H.R.R. D/6183; 89 CLLC 17,012; 45 C.R.R. 115; 94 N.R. 373.

CONSIDERED:

Sharbdeen v. Canada (Minister of Employment & Immigration) (1994), 23 Imm. L.R. (2d) 300; 167 N.R. 158 (F.C.A.); Mayer v. Mayer Estate (1993), 106 D.L.R. (4th) 353; [1993] 8 W.W.R. 735; 32 B.C.A.C. 261; 83 B.C.L.R. (2d) 87; 53 W.A.C. 261 (C.A.); Blackwell, Re, [1962] O.R. 832; (1962), 34 D.L.R. (2d) 369 (C.A.); Display Service Ltd. v. Victoria Med. Bldg. Ltd., [1958] O.R. 759 (C.A.); affd (sub nom. Attorney-General for Ontario and Display Service Co. v. Victoria Medical Building et al.), [1960] S.C.R. 32; (1959), 21 D.L.R. (2d) 97; Bliss v. Attorney General (Can.), [1979] 1 S.C.R. 183; (1978), 92 D.L.R. (3d) 417; [1978] 6 W.W.R. 711; 78 CLLC 14,175; 23 N.R. 527; Johnson v. Agnew, [1980] A.C. 367 (H.L.); R. v. Thomas, [1990] 1 S.C.R. 713; (1990), 75 C.R. (3d) 352; 108 N.R. 147; R. v. Wigman, [1987] 1 S.C.R. 246; (1987), 38 D.L.R. (4th) 530; [1987] 4 W.W.R. 1; 33 C.C.C. (3d) 97; 56 C.R. (3d) 289; 75 N.R. 51.

REFERRED TO:

Boateng v. Minister of Employment and Immigration (1990), 11 Imm. L.R. (2d) 9; 112 N.R. 318 (F.C.A.); Soo Mill & Lumber Co. Ltd. v. City of Sault Ste. Marie, [1972] 3 O.R. 621; (1972), 29 D.L.R. (3d) 129 (H.C.); Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (1991), 140 N.R. 138 (C.A.); Waring (deceased) Re. Westminster Bank, Ltd. v. Burton-Butler, [1948] 1 All E.R. 257 (Ch.D.); R. v. Ramsden, [1972] Crim.L.R. 547 (C.A.).

AUTHORS CITED

Bower, George Spencer. The Doctrine of Res Judicata, 2nd ed. by Sir Alexander Kingcome Turner. London: Butterworths, 1969.

Waddams, S. M. Introduction to the Study of Law, 3rd ed. Toronto: Carswell, 1987.

APPLICATION for reconsideration of an order denying leave to commence a judicial review application based on a subsequently decided F.C.A. decision in an unrelated case which changed the law upon which the denial had been based. Application dismissed.

COUNSEL:

Lorne Waldman for applicant.

Brian Frimeth and Charles Johnston for respondents.

SOLICITORS:

Lorne Waldman for applicant.

Deputy Attorney General of Canada for respondents.

The following are the reasons for order rendered in English by

Rothstein J.:

ISSUE

The issue on this motion for reconsideration is the scope of Rule 1733 of the Federal Court Rules, C.R.C., c. 663, as amended. Rule 1733 provides:

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 subsequently 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.[1] [My emphasis.]

In this case, an application for leave to commence an application for judicial review of a decision of the Convention Refugee Determination Division (CRDD) had been dismissed by the Trial Division of the Federal Court. Shortly after the decision was made dismissing the leave application, the Federal Court of Appeal issued a decision in an unrelated case which, it was argued, changed the law upon which the dismissal of the leave application by the Trial Division was based. The question is whether the Federal Court of Appeal’s subsequent decision can be used as the basis for reconsideration of the leave application.

FACTS

The chronology of events may be briefly summarized. On August 26, 1993, the CRDD decided that the applicant, a citizen of India, was not a Convention refugee. The applicant is a Sikh. The CRDD, while being satisfied that there was an objective basis for the applicant’s fear of persecution should he return to the Punjab, found that he had a reasonable internal flight alternative[2] in India, outside the Punjab.

The applicant sought leave to commence an application for judicial review of the CRDD decision in the Federal Court, Trial Division. By order dated March 14, 1994, I denied the leave application. On March 21, 1994, the Federal Court of Appeal rendered its decision in Sharbdeen v. Canada (Minister of Employment & Immigration) (1994), 23 Imm. L.R. (2d) 300. In that decision, the Court of Appeal was asked to consider two certified questions, the second one being [at page 301]:

… (2) what is the meaning of the words “unreasonable in all the circumstances for the claimant to seek refuge there” as used in Rasaratnam v. Canada (Minister of Employment and Immigration)?

With respect to this question, Mahoney J.A. stated at pages 301-302:

As to the second question, the circumstances must be relevant to the IFA question. They cannot be catalogued in the abstract. They will vary from case to case. Suffice it to say, we are of the opinion that the learned trial judge was correct in concluding that, having regard to all the circumstances here, the Refugee Division had erred in finding an IFA. Once a well-founded fear of persecution at the hands of the national army in a part of the country it controlled had been established, it was not reasonable to expect the respondent to seek refuge in another part of Sri Lanka controlled by the same army. [My emphasis.]

On April 22, 1994, the applicant filed a notice of motion requesting reconsideration of my order of March 14, 1994, denying leave in this case. It was argued that on the basis of Sharbdeen, it would not be reasonable to require the applicant to seek an internal flight alternative in India since his well-founded fear of persecution in the Punjab was at the hands of the central police.

The respondents made no written response.

As a result of section 82.2 of the Immigration Act, R.S.C., 1985, c. I-2, as amended [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73], no appeal lies to the Federal Court of Appeal from a decision to deny leave. The only possible recourse for the applicant in this Court is an application for reconsideration by the Trial Division.

EXISTING REQUIREMENTS FOR APPLICATIONS UNDER RULE 1733

In Saywack, Stone J.A. sets forth two requirements for bringing a reconsideration application under Rule 1733. One is the need to act with reasonable diligence once the ground for reconsideration becomes apparent. The other is to demonstrate that the matter sought to be introduced on reconsideration might probably have altered the original judgment had it been brought before the Court before that judgment had been rendered. On the basis of the evidence in this leave application, it was the submission of applicant’s counsel that had Sharbdeen been decided at the time I considered the leave application, it might probably have altered my decision to deny leave. He argued that the decision in Sharbdeen was a “matter arising subsequent” to my decision to deny leave and that, pursuant to Rule 1733, it constituted grounds for me to reconsider my decision. He also argued that reasonable diligence had been exercised once the Sharbdeen decision was discovered.

In the case at bar, the reconsideration application was brought approximately 30 days after issuance of the Sharbdeen decision by the Federal Court of Appeal. While, having regard to the relatively short time limit to bring leave applications, 30 days might be thought of as involving some delay, it must be remembered that the Sharbdeen decision was not part of the process in this case. Allowance must be made for counsel to become aware of the decision and ascertain its applicability to this case. In the circumstances of this case, one month does not represent undue delay and I find that counsel for the applicant acted with due diligence once the Sharbdeen decision came to his attention.

I am also satisfied that, had the Sharbdeen decision been issued by the Federal Court of Appeal shortly before I decided the leave application in this case and had it been brought to my attention, leave might probably have been granted. In my view, the granting of leave would have given counsel for the applicant the opportunity of arguing that after Sharbdeen, it was not reasonable in this case to expect the applicant to avail himself of an internal flight alternative where the agent of persecution is alleged to be an agency of the central government, such as the central police.

Because I was in doubt as to my jurisdiction to reconsider my order dismissing the leave application on the basis of a subsequent decision of a higher court which might probably have changed it, a conference call was convened with counsel. During that conference call, counsel for the applicant requested the opportunity to make submissions by way of personal appearance on the question of jurisdiction. Such submissions were made by counsel for both parties in Toronto on June 16, 1994. As a result of further research which I did, another conference call was arranged with counsel to apprise them of the cases and other references which I had considered. Counsel made further submissions in writing and by conference call.

POSITION OF THE PARTIES

Applicant’s counsel submits that nothing in the words of Rule 1733 precludes the Court from considering new jurisprudence of a higher court as a “matter arising subsequent” to the making of the decision sought to be reconsidered. He further says that decisions involving refugee claimants are decisions affecting the life, liberty and security of the person and that Rule 1733 must be interpreted broadly in that context to ensure that refugee claimants are not denied the protection afforded them under the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].

Counsel for the respondents submits that it is a well accepted principle that judgments must be final. He also argues that to reconsider judgments or orders on the basis of new jurisprudence would open the floodgates to requests for reconsideration and would create chaos in the administration of justice. He concedes that new jurisprudence might justify reconsideration, but only when the jurisprudence existed at the date of the order sought to be reconsidered and which came to the attention of a party or counsel subsequent thereto, and when, with reasonable diligence, it could not have been found prior to the order being made.

ANALYSIS

The res judicata doctrine and its exceptions

The well-known doctrine of res judicata stands for the proposition that a matter finally adjudicated by a competent court may not be subsequently reopened by the original parties. There are a number of reasons for this doctrine. The important reason, for the purposes of this case, is the need for finality of judgments. In Introduction to the Study of Law, 3rd ed. (Toronto: Carswell, 1987), at page 101, S. M. Waddams indicates that all legal systems have a rule that judicial determination of a case is final. The learned author notes that if the finality rule did not exist, the legal system would be failing to fulfil one of its main functions, that is, dispute settlement.

Both the public and the parties involved in litigation have an interest in the finality of judgments. The public’s interest is expressed by the maxim interest reipublicae ut sit finis litium which means that it is a matter of public interest that there be an end of lawsuits. In Mayer v. Mayer Estate (1993), 106 D.L.R. (4th) 353 (B.C.C.A.), the applicant brought an application before the British Columbia Court of Appeal for a rehearing of his appeal. The majority of the Court dismissed the application and refused to re-hear the appeal. In dissenting reasons, Southin J.A., who would have granted the application for a rehearing, commented that there was a social need for the finality of judgments. At page 356, she stated:

When a question, be it legal or political, has been stirred and stirred again, there must come a time when all concerned must accept the decision of those with power to decide and move on to the next question. If that be not so, our society will come to a standstill.

Furthermore, no society can afford, nor indeed can the litigants themselves, interminable litigation. As yet, the Canadian legal system has not found its Dickens, but one day it may.

The interest of the parties in the finality of judgments is expressed by the maxim nemo debet bis vexari pro una et eadem causa, which means that no one should be twice harassed for the same cause. Once a court adjudicates on a matter at issue between parties, the successful party should not be burdened with the extra trouble and costs of defending its position with respect to the matter already decided.

In Blackwell, Re, [1962] O.R. 832 (C.A.), Schroeder J.A., for the majority, noted that if there were doubts as to the finality of judgments, the parties involved could never be sure of their rights as a result of the litigation. Being unsure of their rights, parties would be unable to plan their future activities with certainty. At pages 841-842 he states:

If a time were not fixed at which the right of appeal should cease, the parties would never know what their rights were, and litigants could not safely deal with the fruits of their judgment because the judgment might still be subject to appeal.

Despite its obvious importance, however, the doctrine of res judicata is not absolute. It is subject to exceptions, one of which is Rule 1733. Others are Rules 337(5) and (6):

Rule 337….

(5) Within 10 days of the pronouncement of judgment under paragraph (2)(a), or such further time as the Court may allow, either before or after the expiration of that time, either party may move the Court, as constituted at the time of the pronouncement, to reconsider the terms of the pronouncement, on one or both of the following grounds, and no others:

(a) that the pronouncement does not accord with the reasons, if any, that may have been given therefor;

(b) that some matter that should have been dealt with has been overlooked or accidentally omitted.

(6) Clerical mistakes in judgments, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court without an appeal.

By contrast with Rule 1733, which provides for reconsideration when a matter has been discovered or arisen subsequent to an order or judgment, it appears that Rules 337(5) and (6) are to be invoked when the reason for the reconsideration is an oversight by the Court (see Boateng v. Minister of Employment and Immigration (1990), 11 Imm. L.R. (2d) 9 (F.C.A.), at page 10). Of some significance is the requirement under Rule 337(5) that an application for reconsideration be brought within ten days of pronouncement of the judgment unless the Court allows further time. No time limit is prescribed in Rule 1733.

Irrespective of whether it is Rule 337(5), Rule 337(6), or Rule 1733 that is being invoked, it is plain that these provisions are exceptional, because they depart from the general principle of res judicata. Without these Rules, res judicata would bar such reconsiderations. In Saywack, Stone J.A. states, at page 197 that Rule 1733 must be seen as exceptional. Hence the requirements, as stipulated by Stone J.A., for reasonable diligence in bringing the application for reconsideration and the need to demonstrate that the matter might probably have altered the original judgment had it been brought before the Court before that judgment had been rendered.

It is easy to reconcile the principle of res judicata with Rules 337(5) and 337(6). The public interest in the finality of litigation, the objective of certainty and the protection of litigants’ rights generally should not be the basis for clerical or other inadvertent errors by the Court to remain uncorrected. It is equally apparent that the objective of finality of judgments cannot stand in the face of fraud, which is one of the three grounds upon which an application for reconsideration may be based under Rule 1733.

The exceptions which are the most difficult to reconcile with the res judicata doctrine are the other two grounds upon which an application for reconsideration may be brought under Rule 1733: when a matter has arisen or has been discovered subsequent to a judgment or order. The difficulty lies in the potential scope of the exception to res judicata embodied in these exceptions.

To be more specific, the issue is not whether Rule 1733 provides an exception to res judicata (it clearly does), but the extent of the exception. Does the Rule allow for reconsideration only on the basis of new facts or evidence specific to the case, or does it allow for reconsideration based on subsequent jurisprudence of a higher court, for example, the Sharbdeen decision?

In the usual case in the Federal Court there is either a right to appeal or a right to seek leave to appeal. Appeals are normally restricted to errors of law or jurisdiction of the lower court. As a rule, errors of fact by a lower court are not subject to appeal. On this basis one might conclude that reconsideration under Rule 1733 is restricted to new or subsequently discovered facts because the court making the original decision would be the only one able to alter its previous decision on the basis of new or subsequently discovered facts. Under this approach, new or subsequently discovered law including new jurisprudence would not be contemplated by the term “matter” in Rule 1733 as questions arising from the new law could be raised on appeal.

However, Saywack makes it clear that the term “matter,” as used in Rule 1733, is a word of broader import. At pages 202 and 203, Stone J.A. states:

I am satisfied that our Rule 1733 does not limit “matter” subsequently discovered to fresh evidence subsequently discovered. It authorizes the Court to look at any relevant new “matter”. No doubt the most common matter will be evidence subsequently discovered and, indeed, many of the decided cases are of that type. It is significant that the word “matter” is used in this Rule rather than the word “evidence”. This is to be contrasted with Rule 1102(1), 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”. 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 suggested that the amendment was outside the Ontario rule. Again, in Murray-Jensen Mfg. Ltd. v. Triangle 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.

Stone J.A.’s comments make it clear that “matter” is not limited only to evidence. In particular, in referring to the Soo Mill [Soo Mill& Lumber Co. Ltd. v. City of Sault Ste. Marie, [1972] 3 O.R. 621 (H.C.)] case, Stone J.A. suggests that a law existing at the time a judgment is rendered, but subsequently discovered, in that case a by-law amendment, could constitute a “matter” within the context of Rule 1733.

While interpreting the expression “matter … subsequently discovered” to include subsequently discovered law extends the exception to the res judicata rule, it is still reasonably reconcilable with it. In the context of Rule 1733, “matter … subsequently discovered” refers to a matter in existence at the time of the original proceeding but which, with diligence, could not have been discovered before the original judgment or order was made. Arguably, the rationale for this exception is that an erroneous judgment or order would not have been made in error had it been possible to bring to the attention of the court a fact or law existing at the time the judgment or order was made. An innocent misrepresentation of fact or misstatement of the law that only came to light after the judgment or order was made might be contemplated. As counsel for the respondents conceded, “matter … subsequently discovered” might include a decision rendered shortly before the case was to be argued, but which was not published or was not otherwise available before argument and issuance of the judgment or order sought to be reconsidered.

It is obvious that the opportunity to raise subsequently discovered jurisprudence on reconsideration is a narrow one. The applicant would have to demonstrate that due diligence had been exercised in his or her attempts to obtain all relevant jurisprudence prior to judgment. Negligence or inadvertence of counsel would be insufficient to justify reconsideration. In the case of subsequently discovered jurisprudence, the due diligence requirement would also have the ancillary effect of ensuring a limited passage of time, i.e. days rather than weeks, months or years, between judgment and a reconsideration application. It is unlikely that an applicant could allow much time to pass following release of the relevant jurisprudence and still successfully argue that due diligence had been exercised.

The most difficult aspect of Rule 1733 to reconcile with the res judicata doctrine is reconsideration based on a “matter arising subsequent.” Taken in the abstract, and having regard to the broad interpretation given to the word “matter” by Stone J.A. in

Saywack, any new information, including subsequent jurisprudence, might ground a reconsideration application as long as reasonable diligence was exercised in bringing the application and the Court was satisfied that the new information might probably alter the original judgment.

As I have earlier emphasized, there is no time limit for bringing a reconsideration application in Rule 1733. Apparently, the application may be made as long as this is done as soon as reasonably possible after the new matter comes to the attention of the party seeking reconsideration. If matter arising subsequent includes subsequent jurisprudence, conceivably this could be long after the decision sought to be reconsidered had been made.

To interpret Rule 1733 in a manner that would allow for reconsideration on the basis of jurisprudence arising subsequent to the judgment or order for which reconsideration is sought, it seems to me, is not reasonably reconcilable with the res judicata doctrine. I have two reasons for this view.

First, if new jurisprudence were considered to be a matter arising subsequent, a decision of a higher court could ground an application for reconsideration in an indefinite number of previous cases in the lower court. The Sharbdeen case could, for instance, be used to ground applications for reconsideration in a large number of previously determined cases in the Trial Division, including decisions on applications for leave to commence judicial review.

The impracticality and inappropriateness of such an approach is illustrated in Display Service Ltd. v. Victoria Med. Bldg. Ltd., [1958] O.R. 759 (C.A.). In that case, a provision of the Mechanics’ Lien Act, R.S.O. 1950, c. 227, as amended, conferring power on a provincially appointed officer (a master) to make final decisions in mechanics’ lien actions in the County of York, was held to be ultra vires the Ontario legislature. That decision was confirmed by the Supreme Court of Canada at [1960] S.C.R. 32. Masters had tried mechanics’ lien actions in the County of York for decades. Accordingly, for a very long period, the Master had been trying actions which were beyond his jurisdiction and his judgments could have, and should have, been quashed had they been questioned. There is no suggestion it would be practical or appropriate to retroactively apply the decision which found that the law conferring jurisdiction on the Master was ultra vires to all previous cases with the effect that the decisions in those previous cases would all be quashed.

Moreover, for a court to be faced with the prospect that its decisions could have far reaching retroactive effect and be used to justify reconsideration of an unknown number of cases extending back for an indefinite period of time, could, I think, have the effect of inhibiting the Court from freely making decisions, developing the law, and indeed, acknowledging previous errors. Interpreting Rule 1733 to allow for unrestricted retroactive effect would be detrimental to the proper and desirable performance of the Court’s function.

Second, if “matter arising subsequent” were to include new jurisprudence, any decision could be reconsidered on the basis of the result in an unknown number of new and totally unrelated cases. In other words, litigants who believed their case was settled could find themselves back in court on an application for reconsideration based on the result of a new decision of a higher court in an unrelated action. Such a decision might arise years after release of the original judgment.

Even in cases in which a previous decision is acknowledged to have been decided incorrectly, there has been no suggestion that it should be reconsidered on the basis of the subsequent judgment. In Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, Dickson C.J., who delivered the judgment of the Court, acknowledged that the Court had wrongly decided the previous case of Bliss v. Attorney General (Can.), [1979] 1 S.C.R. 183. In Bliss, the Supreme Court dismissed an appeal from a judgment of the Federal Court of Appeal which set aside the judgment of Collier J. sitting as an umpire under the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, as amended. At pages 1243-1244 of Brooks, the Chief Justice stated:

With the benefit of a decade of hindsight and ten years of experience with claims of human rights discrimination and jurisprudence arising therefrom, I am prepared to say that Bliss was wrongly decided or, in any event, that Bliss would not be decided now as it was decided then …. It is difficult to accept that the inequality to which Stella Bliss was subject was created by nature and therefore there was no discrimination; the better view, I now venture to think, is that the inequality was created by legislation, more particularly, the Unemployment Insurance Act, 1971.

Even after acknowledging, or at least suggesting, that the Court had been wrong to decide Bliss in the manner in which it did, there was no indication by the Chief Justice that Bliss should be reconsidered because of the decision in Brooks some ten years later. With respect to the effect of res judicata in this context, and the reluctance of courts to reopen finally decided cases on the basis of new jurisprudence, see also Waring (deceased) Re. Westminster Bank, Ltd. v. Burton-Butler, [1948] 1 All E.R. 257 (Ch.D.), and the commentary in Sir Alexander Kingcome Turner’s The Doctrine of Res Judicata, 2nd ed. (London: Butterworths, 1969) at pages 15-16, and R. v. Ramsden, [1972] Crim.L.R. 547 (C.A.) respectively.

The contrast between reconsideration based on subsequent jurisprudence on the one hand, and facts, evidence or other matters arising subsequent that are specific to a case on the other, is readily apparent. Bearing in mind the exceptional nature of Rule 1733, I think it is plain that judgments can only be reconsidered on the basis of matters arising subsequent which are specific to the case itself, not decisions in a potentially very large number of unrelated actions. New judgments cannot have the effect of retroactively disturbing an unknown number of previous decisions. Litigants must be able to conduct their lives with the assurance that their case was closed, and judges must be able to render decisions without the concern that their decisions could have far-reaching retroactive effects on unrelated actions.

Therefore, in my view, the words “matter arising subsequent” in Rule 1733 must pertain to facts, circumstances or other matters, specific to a case, that would indicate the original judgment or order was or had become inappropriate. For example, in Johnson v. Agnew, [1980] A.C. 367 (H.L.), an order of specific performance had become impossible to carry out because of an action taken subsequent to the order being made. The plaintiff sought to discharge the specific performance decree and obtain an order of damages in substitution. This change was considered appropriate in the circumstances. Clearly, a “matter arising subsequent” that would frustrate the carrying out of a court order unless the order was reconsidered is quite different from the retroactive application of subsequent jurisprudence to a case in which a judgment or order has been finally pronounced. The former is a matter specific to the case which, I think, is the context in which the words “matter arising subsequent” in Rule 1733 must be considered.

I conclude that Rule 1733 does not allow for reconsideration based upon subsequently decided jurisprudence of a higher court. The words of Rule 1733 are not to be considered in the abstract, but must be considered in the context of, and be reconcilable, as far as possible, with the general rule of res judicata. The unacceptable uncertainty that would be created by interpreting Rule 1733 as including subsequent jurisprudence as a ground for reconsideration is readily apparent. Both the parties and the public must be satisfied that a judgment, once rendered, is final.

Charter Considerations

I am satisfied that subsequent jurisprudence of a higher court cannot be grounds for reconsideration even in cases in which Charter considerations are relevant. The Charter does not render obsolete the principle of res judicata with which reconsideration applications under Rule 1733 must be reconciled as far as possible.

For example in R. v. Thomas, [1990] 1 S.C.R. 713, an incarcerated person’s liberty was at stake. The law under which the person had been convicted was subsequently ruled unconstitutional. Nonetheless, the Supreme Court of Canada did not extend time to appeal. In my view, this approach indicates that the importance of finality in judicial decisions is not obviated even when Charter rights are at issue.

Other Alternatives

Applicant’s counsel argued that since there can be no appeal from a decision on a leave application, reconsideration should be allowed in order to provide the applicant with another recourse. Because of the extraordinary nature of reconsideration, where the possibility of appeal is available to a litigant, that should normally be the avenue selected even where leave to appeal must be obtained and/or an application for extension of time is necessary. No such opportunity is available in the case at bar. However, Canada’s immigration legislation provides many safeguards for persons claiming Convention refugee status. For example, an application for landing under the post-determination refugee claimants in Canada class, pursuant to section 11.4 of the Immigration Regulations, 1978, SOR/78-172 [as enacted by SOR/93-44, s. 10; 93-412, s. 6], would, I think, be available to the applicant in this case.

In any event, as I have found, the words “matter arising subsequent” in Rule 1733 do not include jurisprudence of a higher court arising subsequent to the making of a judgment or order sought to be reconsidered. This finding is unaffected by the existence or lack of existence of alternative recourse. I paraphrase from R. v. Wigman, [1987] 1 S.C.R. 246, at page 257 in observing that while such a conclusion may not meet the wholly impractical dream of providing perfect justice to all, it is required by the practical necessity of having some finality in the judicial process.

CONCLUSION

The application for reconsideration must be dismissed.

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