On May 20, 2015, the Ontario Court of Appeal decided in Mujagic v. Kamps that it has no
jurisdiction to set aside its prior decision refusing leave to
appeal a Divisional Court ruling on the basis of a subsequent Court
of Appeal decision changing the law. For the Court, Justice Doherty
held that a change in the law did not amount to a "fact
arising" after the decision was made that would allow the
Court of Appeal to vary its decision. He also refused to grant an
extension of time to seek leave to appeal to the Supreme Court of
Canada. Though the Court of Appeal has this power, he held it
should be exercised only in "the most unusual
The case emerged from a car accident. A jury found the Defendant
30% responsible for the accident, but awarded the Plaintiff zero
damages. The Plaintiff's appeal to the Divisional Court was
unsuccessful, as was her motion for leave to appeal the Divisional
Court's decision to the Court of Appeal. She then brought a
motion to reconsider the denial of granting leave, asserting that a
recent Court of Appeal case changed the law related to her
Court of Appeal's Jurisdiction
The fact that neither party took out an order dismissing the
motion for leave to appeal did not inhibit the Court from
reconsidering its decision. The Defendant, however, relied on Rule
61.16(6.1) of the Rules of Civil Procedure, which
Subject to rules 37.14 and 59.06, an
order or decision of a panel of an appellate court may not be set
aside or varied under these rules.
Justice Doherty analyzed this Rule:
 The use of the phrase "order
or decision" is instructive and renders the taking out of an
order irrelevant to the power to reconsider a decision governed by
rule 61.16. The inclusion of the word "decision" reflects
the practical reality that orders are often not taken out when
motions are dismissed in the Court of Appeal.
 As rule 61.16(6.1)
applies to this motion, the moving parties must bring themselves
within rules 37.14 or 59.06 for this court to have jurisdiction to
set aside or vary its decision refusing leave to appeal. Rule 37.14
has no application in the circumstances of this case. The moving
parties do, however, rely on rule 59.06 and specifically rule
59.06(2)(a), which provides:
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
may make a motion in the proceeding
for the relief claimed.
 Counsel for the moving
parties submits that the change in the jurisprudence effected by
Westerhof amounts to a "fact arising" after the
decision refusing leave to appeal was made. I cannot accept
that submission. The distinction between fact and law is
well-established. Facts come from evidence, including new testimony
and exhibits. Law comes from statute books and case law. The law is
applied to the facts to produce a result. Rule 59.06(2)(a), by its
plain meaning, speaks to "facts arising or discovered"
and not to jurisprudential changes. New facts, like all facts, are
found in evidence, not in the statute books or case law.
Justice Doherty added that he concluded that the motion
would fail on the merits in any event, and the interests of justice
therefore did not favour reconsidering the decision.
Extending Time to Seek Leave to Appeal to the Supreme Court of
Justice Doherty, in conclusion, considered the Plaintiff's
claim for "alternate relief":
Counsel for the moving parties asked this court to extend the time
for delivery of an application for leave to appeal to the Supreme
Court of Canada, should this court decline to reconsider its
earlier decision refusing leave. This court would appear to have
jurisdiction to grant the requested extension: Supreme Court
Act, R.S.C. 1985, c. S-26, s. 59(1).
 The Supreme Court of Canada, as
the court of last resort, has total control over its own docket in
civil matters. Except in the most unusual circumstances, questions
relating to access to that court should be addressed by that court.
The moving parties have not advanced any persuasive reason for this
court to make an order in respect of a proceeding in the Supreme
Court of Canada. I would not make any order extending the time for
delivery of an application for leave to appeal to the Supreme Court
 I would dismiss the
motion with costs, if requested. ...
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