The Ontario Court of Appeal in Hoang v Mann Engineering Ltd., 2015 ONCA 838 used Rule 2.1 to dismiss the appellant's frivolous motion. While the respondents' primary argument was that Rule 61.16(6.1) of the Rules of Civil Procedure prohibited the appellant's motion, the respondents' relied on Rule 2.1 in the alternative. In dismissing the motion, the court held that the appropriate avenue for arguing that the Court of Appeal made an error in law was to apply for leave to appeal to the Supreme Court, and not to bring a motion under Rule 59.06 to amend the order.
The appellant had commenced a suit for damages for wrongful dismissal, breach of contract, and withheld sales commission, which the trial court dismissed. The Court of Appeal, in an earlier decision, allowed an appeal in part. The appellant then brought forward a motion at the Court of Appeal, in front of a differently constituted panel, seeking to amend that court's earlier decision.
The respondents' position was that:
[10] In response to Mr. Hoang's motion, the respondents submit that the relief sought is barred by rule 61.16(6.1), which provides:
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.
[11] Alternatively, the respondents submit that Mr. Hoang has provided no compelling reason to re-open his appeal, but instead reiterates the same arguments made on two previous occasions. They request that, in these circumstances, this court should consider using its power under rule 2.1.02 to declare this motion frivolous, vexatious or otherwise an abuse of the process of this court and to prohibit Mr. Hoang from making any further motions in this proceeding without leave.
The Court of Appeal's decision did not deal with whether Rule 61.16(6.1) barred the relief sought, instead finding that there was a "sound basis" for exercising its powers under Rule 2.1:
[13] On the motion, Mr. Hoang has not identified any circumstances that would justify ordering a re-hearing of an appeal by a differently constituted panel. He is merely attempting to re-argue what are in essence the same arguments advanced on the original appeal and in the post-hearing submissions. That is, that the trial judge erred in concluding that the offer letter of April 21, 2011 was not accepted and that Mr. Hoang was terminated for cause.
[14] Mr. Hoang is arguing that the appeal panel erred in law and in fact by upholding the trial judge's order and so the appeal should be re-heard. As indicated by the panel in its previous endorsement, these are arguments that should be made to the Supreme Court of Canada on an application for leave to appeal.
The court also emphasized that relief under Rule 59.06 is granted only in narrow circumstances:
[15] It needs to be emphasized that rule 59.06 provides for a very narrow jurisdiction to set aside or vary an order made by a panel. Any motions relying on this rule will be monitored by the court under rule 2.1.02 to ensure that the motion is not frivolous, vexatious or otherwise an abuse of the process of the court: see for example, Gallos v. Toronto (City), 2014 ONCA 818. This case does not fit within the very narrow jurisdiction of rule 59.06, but is one that on its face fits within rule 2.1.02(1).
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