Supreme Court Judgments

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Reekie v. Messervey (Motion), [1990] 1 S.C.R. 219

 

Patricia Kathleen Reekie   Applicant

 

v.

 

Albert Arthur Messervey  Respondent

 

and

 

Richard Page Reekie         Respondent

 

and

 

Insurance Corporation of British Columbia                                                                    Respondent

 

and between

 

Albert Arthur Messervey  Applicant

 

and

 

Insurance Corporation of British Columbia                                                                    Applicant

 

v.

 

Patricia Kathleen Reekie   Respondent

 

and

 

Richard Page Reekie         Respondent

 

and between

 

Richard Page Reekie         Applicant

 

v.

 

Patricia Kathleen Reekie   Respondent

 

and

 

Albert Arthur Messervey  Respondent

 

and

 

Insurance Corporation of British Columbia                                                                    Respondent

 

indexed as:  reekie v.messervey

 

File Nos.:  21549, 21548, 21564.

 

1990:  January 17; 1990:  February 8.

 

Present:  Dickson C.J. and Sopinka and McLachlin JJ.

 

applications to vary orders refusing leave to appeal

 

    Judgments and orders ‑‑ Application to vary an order refusing leave to appeal to the Supreme Court of Canada ‑‑ Order creating an injustice for applicant ‑‑ Order made on the basis of written material only -- Order varied ‑‑ Rules of the Supreme Court of Canada, SOR/83‑74, rr. 7, 50, 51(12).

 

    Courts ‑‑ Supreme Court of Canada ‑‑ Jurisdiction ‑‑ Application to vary an order refusing leave to appeal ‑‑ Whether Supreme Court has jurisdiction  to reconsider a decision made on an application for leave to appeal -- Rules of the Supreme Court of Canada, SOR/83‑74, rr. 7, 50, 51(12).

 

    Practice ‑‑ Supreme Court of Canada ‑‑ Application to vary an order for leave to appeal ‑‑ Order made on the basis of written material only  -- Order varied pursuant to Rule 7 of the Supreme Court Rules -- Rules of the Supreme Court of Canada, SOR/83‑74, rr. 7, 50,  51(12).

 

Cases Cited

 

    Referred to:  Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; Scarff v. Wilson (1988), 33 B.C.L.R. (2d) 290 (C.A.), rev'd [1989] 2 S.C.R. 776.

 

Statutes and Regulations Cited

 

.Rules of the Supreme Court of Canada, SORs</83‑74, rr. 7, 50 [am. SORs</88‑247, s. 20], 51(12).

 

Supreme Court Act, R.S.C., 1985, c. S‑26, s. 45 .

 

    APPLICATIONS to vary orders refusing leave to appeal to the Supreme Court of Canada from a judgment of the British Columbia Court of Appeal (1989), 36 B.C.L.R. (2d) 316, 59 D.L.R. (4th) 481, 48 C.C.L.T. 217. Application of Patricia Reekie granted. Applications of Messervey and Insurance Corporation of British Columbia, and of Richard Reekie dismissed.

 

    Henry S. Brown, for Patricia Reekie.

 

    Patricia Wilson, for Messervey and Insurance Corporation of British Columbia.

 

    Siobhan Devlin, for Richard Reekie.

 

//Sopinka J.//

 

    The judgment of the Court was delivered by

 

    SOPINKA J. -- This is an application by Patricia Kathleen Reekie to vary an order which refused leave to appeal.  The order was made pursuant to s. 45  of the Supreme Court Act, R.S.C., 1985, c. S-26 .  While the application is one to vary in form, it is in essence an application for a reconsideration of the order refusing leave to appeal.

 

    After the order refusing leave to appeal was made on the basis of written material, it was drawn to our attention by letter that in dismissing the applicant's cross-appeal seeking an award of a gross-up for taxes, the British Columbia Court of Appeal (1989), 36 B.C.L.R. (2d) 316 applied its decision in Scarff v. Wilson (1988), 33 B.C.L.R. (2d) 290.  The decision of the British Columbia Court of Appeal in Scarff, however, was reversed by this Court, [1989] 2 S.C.R. 776, after the judgment of that court in this case but before we dealt with the application for leave to appeal.  The application for leave to appeal was refused on the basis that the law had been settled by this Court in its decision in Scarff.  The Court did not consider the injustice to the applicant in the circumstances: at a time when the applicant was seeking to appeal to this Court, a judgment had been rendered by this Court that clearly entitled her to the relief that she had sought from the British Columbia Court of Appeal.  However, without the right to appeal to this Court, she would be denied that relief.  I am satisfied that if the application had been considered on this basis, leave would have been granted.

 

    It has been forcefully submitted that the Rules of the Supreme Court of Canada, SOR/83-74, do not provide for a situation such as this.  Rule 50, relied on by the applicant, provides as follows:

 

    50. (1) A party may, at any time before the expiration of 30 clear days after the delivery of a judgment, move before a Judge, or before the Registrar where all the parties affected have consented to the motion, to vary the judgment.

 

    (2) A motion to vary a judgment may only be made where the judgment signed by the Registrar

 

(a)  contains an error in writing or calculation, or any other clerical error;

 

(b) does not accord with the judgment as pronounced by the Court; or

 

    (c)  inadvertently includes in or omits from the judgment pronounced or the disposition made of the proceeding by the Court, a matter on which the Court pronounced or that the Court disposed of.

 

    (3) Upon a motion referred to in subsection (1), the Judge may vary the judgment as pronounced, or direct that a motion be made pursuant to Rule 51.

 

    The respondent insurer submits with some justification that Rule 50 is narrow in scope and does not contemplate reversal of a decision that, on reconsideration, is found to be wrong.

 

    In my opinion, it would be extraordinary if the Court were powerless to remedy the injustice that is conceded as present in this case.  As a general principle, the rules of procedure should be the servant of substantive rights and not the master.  I believe that this is the underlying rationale of Rule 7 which states:

 

    7.  Whenever these Rules contain no provision for exercising any right, any procedure that is specified by the Court, a Judge or the Registrar and that is not inconsistent with these Rules or the Act may be adopted.

 

    It ensures that the Court is empowered to give effect to substantive rights, notwithstanding a deficiency in the rules.  It is subject to the limitation that the Court is not permitted to act in a manner that flies in the face of the express provisions of a rule.

 

    Rule 50 is a reflection of the common law rule of functus officio.  This rule was developed to achieve a finality of proceedings which were subject to a full appeal:  see Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848.  Its narrow scope may be appropriate when applied to judgments which can be corrected on appeal, but is inappropriate to decisions of this Court which are not subject to appeal.  Any error creating an injustice can only be cured by a reconsideration of the decision by this Court.  For this reason, a judgment disposing of an appeal can be reopened by way of an application for rehearing:  Rule 51.  There is, however, no provision in the rules which authorizes the Court to reconsider a decision made on an application for leave to appeal.  In my opinion, Rule 7, broadly interpreted, supplies the omission.

 

    It was, however, suggested in argument that it is inconsistent with Rule 51(12), which provides:  "There shall be no rehearing on an application for leave or a motion."  I am, however, satisfied that Rule 51(12) does not apply to an application for leave that was not heard, but disposed of by way of written application.  Rule 51(12) was adopted when all applications for leave were dealt with by way of oral hearing.  The rule embodied the policy that one oral hearing was sufficient in the case of an application for leave to appeal or a motion.

 

    In the result, the application of Patricia Kathleen Reekie is granted.  The decision of this panel refusing leave to all three parties is varied by granting leave to the applicant Patricia Kathleen Reekie.  With respect to the applications for leave of Albert Arthur Messervey and Richard Page Reekie, we see no reason to alter our previous decision.

 

    There will be no costs with respect to these applications.

 

    Application of Patricia Reekie granted. Applications of Messervey and Insurance Corporation of British Columbia, and of Richard Reekie dismissed.

    Solicitors for Patricia Reekie: MacIsaac, Clark & Co., Victoria.

 

    Solicitors for Messervey and Insurance Corporation of British Columbia: Silversides, Wilson & Seidemann, Prince Rupert.

 

    Solicitor for Richard Reekie: Robert J. Falconer, Vancouver.

 

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