Page: 1 PROVINCE OF PRINCE EDWARD ISLAND PRINCE EDWARD ISLAND COURT OF APPEAL

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1 Page: 1 PROVINCE OF PRINCE EDWARD ISLAND PRINCE EDWARD ISLAND COURT OF APPEAL Citation: Ayangma v. French School Board 2011 PECA 3 Date: Docket: S1-AD-1167 Registry: Charlottetown BETWEEN: AND: NOËL AYANGMA APPELLANT FRENCH SCHOOL BOARD AND GABRIEL ARSENAULT RESPONDENTS Before: Chief Justice David H. Jenkins Justice John A. McQuaid Justice Michele M. Murphy Decision on Motion for Reconsideration - Preliminary Issue of Jurisdiction Noël Ayangma, the Appellant Mary Lynn Kane, Q.C., counsel for the Respondents Written Submissions filed on January 6, Place and Date of Judgment Charlottetown, Prince Edward Island February 2, 2011 Written Reasons by: Chief Justice David H. Jenkins Concurred in by: Justice John A. McQuaid Justice Michele M. Murphy

2 Page: 2 APPEALS - Civil procedure - Motion for reconsideration - Amending, setting aside or varying order - Finality of order - Functus officio - Motion for reconsideration dismissed. The Court of Appeal dismissed the appellant s motion for reconsideration of its decision dismissing his appeal from an order of the Supreme Court that had dismissed his action against the respondents alleging his equality rights guaranteed under section 15 of the Canadian Charter of Rights and Freedoms had been violated. The motion sought a rehearing of the appeal based on (i) arguments not raised in the initial hearing; (ii) a repetition of the arguments made; and (iii) assertion that the decision is wrong at law. Neither the Court s inherent jurisdiction nor its power under Rule extend to reopening a final decision of the Court. Authorities Cited: CASES CONSIDERED: Pelley v. Springvale (Town), 2008 NLCA 43; Bussey v. Mahar, 2006 NLCA 44; Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3; R. v. Malicia, [2006] O.J. No (Ont.C.A.); Paper Machinery Ltd. v. J.D. Ross Engineering Corp, [1934] S.C.R. 186; Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 (SCC); McLean v. Carr Estate, [1996] N.J. No. 181 (NLSC-Ct. of Ap.), referring with approval to Yen and Yen v. Dapas and Torbay Investors Ltd. (1978), 6 B.C.L.R. 264 (BCSC); Beanland v. Beanland (1997), 151 Nfld. and P.E.I.R. 51 (NLCA); R. v. Jacobs, [1971] S.C.R. 92 at p.94; Edison v. Edison 2000 PESCTD 45; D.P.L. v. M.E.L PESCTD 24; Imperial Roadways Ltd. v. C.P. Ltd., [1982] 28 C.P.C. 151 (Ont.H.Ct.); Rocke v. Rocke, [1956] O.W.N. 481 (Ont.C.A.) STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms, s.52 of the Constitution Act, 1982, s.15, s-s.15(1); School Act, R.S.P.E.I. 1988, Cap. S-2.1, s- s.85(1), s-s.83(2) RULES CONSIDERED: Prince Edward Island Rules of Civil Procedure, Rule (2 and (2) TEXTS CONSIDERED: Brown, Q.C., Donald J.M.: CIVIL APPEALS (Canvasback Publishing, Toronto, ON 2009) Para. 10:5310 Reasons for judgment: JENKINS C.J.P.E.I.: [1] The appellant brought a motion asking this Court to reconsider its decision in this appeal. This motion was brought after the order dismissing the appeal was

3 Page: 3 entered. The respondents asked the Court to decide first the extent of its jurisdiction to reconsider the matters set out in the appellant s notice of motion. The parties were informed that the Court wished to receive submissions and decide the issue of its jurisdiction as a preliminary issue before the respondents would become obliged to respond to the merits of the notice of motion. The process for hearing the issue of jurisdiction was agreed. The parties were given the opportunity to make written submissions on the issue of jurisdiction, and this issue would be decided without an oral hearing. The parties have filed their written submissions. [2] The appellant s action against the respondents alleging his equality rights guaranteed under section 15 of the Canadian Charter of Rights and Freedoms had been violated was dismissed following trial in the Supreme Court. Reasons for judgment are stated in Ayangma v. French Board & Arsenault 2008 PESCTD 39; and an order for judgment was then entered. Upon the appellant s appeal, the appeal was heard and this Court then dismissed the appeal. Reasons for judgment are stated in Ayangma v. French School Board 2010 PECA 16 rendered September 9, 2010; an order of this court dismissing the appeal was entered on October 25, Prior to this order being entered, the appellant made application for leave to appeal to the Supreme Court of Canada. Subsequent to this order being entered, the appellant brought the notice of motion for reconsideration now under consideration; and he sought leave to stay his application to the Supreme Court of Canada pending the result of this motion. [3] In his notice of motion, the appellant states that he asks this court to reconsider its decisions, and that his motion is for: a) an order pursuant to Rule 59.05(1) and Rule 59.05(2) amending, setting aside or varying the decisions... of this Court; b) an order granting the remedies sought by the applicant in his appeal; and c) for any other order that is just in the circumstances. [4] Rule 59 addresses orders. Subrule addresses amending, setting aside or varying an order. It states: AMENDING, SETTING ASIDE OR VARYING ORDER Amending (1) An order that, (a) (b) contains an error arising from an accidental slip or omission; or requires amendment in any particular on which the court did not adjudicate,

4 Page: 4 may be amended on a motion in the proceeding. Setting Aside or Varying (2) A party who seeks to, (a) (b) (c) (d) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made; suspend the operation of an order; carry an order into operation; or obtain other relief than that originally awarded, may make a motion in the proceeding for the relief claimed. [5] The appellant s notice of motion lists 13 grounds. As I see it, this list can be distilled to two substantive grounds. First, grounds one to eight and twelve assert that the decision of the trial judge, which was affirmed by this Court, was made on the basis of an error, namely considering inadmissible parole evidence in the interpretation and application of Article 9.02 of the collective agreement which was in issue. Second, ground number 13 asserts that this Court overlooked crucial evidence relating to the application of the School Act s.85(1) for the purpose of applying s.83(2) regarding the requirement to give credit for time served with another school board for the purpose of calculating the period of the probationary prerequisite for eligibility for a permanent contract with a School Board. Grounds nine to eleven refer to the Court s discretion to prevent abuse and miscarriage of justice; assert that the integrity of the litigation process is at risk, especially in view of the huge costs order the appellant will face; and state that there is a principle of justice at stake that should override the value of finality of this litigation. [6] The objective of the appellant s motion for reconsideration is clarified by his description of the questions in issue. He asks this Court to reconsider what appears to him to be an obvious departure from the well-settled principles of law dealing with contracts and the admissibility of extrinsic evidence of oral or side agreements to interpret a clear and unambiguous provision in a collective agreement or legislation. He submits that there is a substantial and apparent conflict between the decision of the trial judge, which was affirmed by this Court on appeal, and decisions of most other Canadian jurisdictions, including the Supreme Court of Canada, regarding admissibility of such parole evidence in those circumstances.

5 Page: 5 [7] The appellant states in other words that he requests this Court to reopen the appeal to entertain additional legal arguments in support of his contentions that the findings of the trial judge were mostly based on inadmissible evidence; parole evidence was not available to interpret clear and unambiguous terms of the collective agreement; and that the trial judge s decision offends well-settled substantive and cardinal law. [8] In my assessment, the nature of the relief sought by the appellant s motion for reconsideration is a rehearing of the appeal based on (i) arguments not raised in the initial hearing; (ii) a repetition of the arguments made; and (iii) assertion that the decision is wrong at law. In my opinion, neither the Court s inherent jurisdiction nor its power under Rule extend to reopening a final decision of the Court, and the Court does not have the jurisdiction to hear and decide the issues raised in the appellant s motion for reconsideration. [9] What the appellant is seeking is for this Court to reopen and rehear the appeal based on a legal argument he claims was not pursued or considered at the trial or on appeal; and based on a judicial misapprehension and misapplication of provisions of the School Act. This is impermissible. The appellant seeks to have the appeal reopened to argue again issues already decided, the objective being to have the court correct errors and reverse itself. The appellant is seeking a different result. This kind of relief is beyond the realm of both Rule and the inherent jurisdiction of the court to amend or vary a previous order that has been entered. [10] More particularly, there is nothing in Rule that would permit the court to reopen the appeal in the circumstances of this motion. Subrule 59.05(2)(a) does not assist, as the grounds for the motion do not advise that the judgment or appeal were procured by fraud or that facts have arisen or been discovered after the appeal was decided. Subrule 59.05(1) presents three situations for consideration. Under clause (a), first, there is no question of an accidental slip or omission having occurred within the limited scope for which the slip rule exists; and second, the order accurately reflects the decision on appeal. Third, under clause (b), the court adjudicated on all the issues. [11] Nor does the Court s inherent jurisdiction to amend or vary extend to such matters. It is long and well-established that once formal judgment has been entered, the court pronouncing it is functus officio, and has no power to amend it; subject only to exceptions pursuant to a power to amend provided by legislation, or pursuant to the court s inherent power to correct an accidental slip in drawing it up or correcting an error in expressing the manifest intention of the court: Brown: Civil Appeals 10:5310; Pelley v. Springvale (Town), 2008 NLCA 43, at 11; Bussey v. Mahar,

6 Page: NLCA 44, at [12] Functus officio refers to having performed an assigned task and having exhausted one s function and authority. The principle of functus officio exists to allow finality of judgments from courts which are subject to appeal. The rule prevents a court from continually hearing applications to vary its decision, in which it would assume the function of an appellate court and deny litigants a stable base from which to launch an appeal: Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 at 77 and 79; R. v. Malicia, [2006] O.J (Ont.C.A.), at 13. The function of a judge or a court is taken to be exhausted when the judgment is drawn up and entered: Paper Machinery Ltd. v. J.D. Ross Engineering Corp, [1934] S.C.R [13] In the Paper Machinery case, the Supreme Court of Canada dealt with the finality of judgments and the power of a court to amend a judgment. Rinfret J. stated: The question really is therefore whether there is power in the court to amend a judgment which has been drawn up and entered. In such a case, the rule followed in England is, we think, -- and we see no reason why it should not also be the rule followed by this Court -- that there is no power to amend a judgment which has been drawn up and entered, except in two cases: (1) Where there has been a slip in drawing it up, or (2) Where there has been error in expressing the manifest intention of the court (In re Swire [(1885) 30 Ch. D. 239.]; Preston Banking Company v. Allsup & Sons, [1895] 1 Ch. 141.]; Ainsworth v. Wilding [[1896] 1 Ch. 673.]. In a very recent case (MacCarthy v. Agard [[1933] 1 K.B. 417.]), the authorities were all reviewed and the principle was re-asserted. In that case, although, indeed, all the judges expressed the view that the circumstances were particularly favourable to the applicant, but because neither of the conditions mentioned were present, the Court of Appeal came to the conclusion that it had no power to interfere. (The rule as stated was approved by the Privy Council in Firm of R.M.K. R.M v. Firm of M.R.M. V.L. [[1926] A.C. 761 at ]). The respondents' application does not come under the so-called slip rule. Nor is it apparent that some matter which should have been dealt with in the reasons has been overlooked; and, in our view, the minutes as settled accord with the judgment pronounced by the Court. any doubt which might have subsisted on those points must have been made clear by the discussion before their Lordships of the Privy Council and the order made upon the petition for special leave to appeal. [14] This explanation of the general rule and exceptions was discussed and reaffirmed by Sopinka J. in the Supreme Court of Canada decision in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 by this statement:

7 Page: 7 Functus Officio [19] The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions: 1. where there had been a slip in drawing it up, and, 2. where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R [15] The court s inherent jurisdiction, and the source of the codifying rules of court, was explored by Green J.A. in Beanland v. Beanland (1997), 151 Nfld. and P.E.I.R. 51 (NLCA). He stated at 41: [41] The court has inherent jurisdiction, as well as power under Rules and to amend or vary a previous order which has been drawn up and entered. The circumstances under which this may be done are, however, limited. The general rule as stated by Cameron, J.A., in this court in McLean et al. v. Carr Estate et al., (1996), 142 Nfld. & P.E.I.R. 25; 445 A.P.R. 25; 138 D.L.R.(4th) 541, is that a final decision of a court cannot be reopened. This is especially so where the order is made on consent because in such circumstances it is based upon the contract of the parties. See Wright, Re, [1949] O.W.N. 113 (H.C.) at p Exceptions to this rule, however, include circumstances where there has been a slip in drawing up the order or where there has been error in expressing the manifest intention of the court. See Paper Machinery Ltd. et al. v. Ross (J.O.) Engineering Corporation et al., 1934 CanLII 1 (S.C.C.), [1934] S.C.R. 186 per Rinfret, J., at p. 188; McLean et al. v. Carr Estate et al. at p Additional grounds would include fraud and, in the case of a consent order, circumstances that would enable the court to set aside the agreement upon which the consent order was based. See Wright, Re. Further, Rule also allows an amendment to provide for any matter which should have but was not adjudicated upon, i.e., where the law requires the court to consider something which should have been but was not brought to the attention of the court: McLean et al. v. Carr Estate et al. Of course, there is also an inherent jurisdiction in the court to correct or set aside, ex debito justitiae, a decision, the fundamental basis for which is found to be lacking, as for example where an appeal has not been heard on its merits but struck out for non-appearance of the appellant when, in fact, the appellant was not properly served. See Marlay

8 Page: 8 Construction Ltd. v. Mount Pearl (City), (1996), 147 Nfld. & P.E.I.R. 191; 459 A.P.R. 191 (Nfld. C.A.). [42] Absent any of the recognized exceptions, however, any purported variation or amendment of an order already drawn up and entered will be beyond the jurisdiction of the court to make. [16] The general rule that a final decision of a court cannot be reopened, subject to the exceptions to correct a slip in drawing it up, or where there was an error in expressing the manifest intention of the court, is not meant to provide an avenue to deal with arguments that could have been advanced, but were not. This can be done on appeal. The rule providing for exceptions is meant to allow consideration of matters that must be dealt with in the sense that, had they been brought to the judge s or court s attention at the time of the hearing, the judge or court would have been obliged to take the matter into account. Examples of application of the rule include a court having made an order that exceeded the amount permitted by a regulation that was not brought to the attention of the court; or an order having been made that did not take into account a deposit that it had already been paid: McLean v. Carr Estate, [1996] N.J. No. 181 (NLSC-Ct. of Ap.), at 8-11; referring with approval to Yen and Yen v. Dapas and Torbay Investors Ltd. (1978), 6 B.C.L.R. 264 (BCSC). [17] There are other examples of amendments of orders being made to address matters not adjudicated: Where costs had been sought as part of the proceeding but were not addressed, the failure to address them was considered a matter that the court had failed to adjudicate upon: Edison v. Edison 2000 PESCTD 45, at 5 Webber J. Where an order for costs was made in a divorce proceeding, and clarification was needed to specify the amount of those costs that related to the support issues in the case: D.P.L. v. M.E.L PESCTD 24. To confirm that a judgment was to bear post-judgment interest after disposition of an appeal: Imperial Roadways Ltd. v. C.P. Ltd., [1982] 28 C.P.C. 151 (Ont.H.Ct.). To specify the scale of costs: Rocke v. Rocke, [1956] O.W.N. 481 (Ont.C.A.). In a criminal law sentencing, where the sentencing judge intended to but had not specified in the judgment that the sentence was consecutive: R. v. Malicia, [2006] O.J. No (Ont.C.A.), at and

9 Page: 9 Such cases do not rehear the merits of an appeal; rather, as stated in R. v. Jacobs, [1971] S.C.R. 92 (a criminal case), they are judgments given by the court of appeal in the exercise of the discretionary power relating to the practice concerning the proper administration of justice. [18] I am careful in dealing with the appellant s motion to avoid addressing the merits of the decision on appeal more than is necessary to respond to the question of jurisdiction. I will only relate my observation that the issues raised in the motion for reconsideration were before this Court on the appeal. The reasons for judgment refer extensively to the requirement for a course in school administration being stipulated by Article 9.02 of the Collective Agreement. Paragraph 68 states this Court s agreement with the trial judge s conclusion that the Board did not follow the provisions of the Collective Agreement; and as well, how this Court considered all of this to relate to whether the appellant had made out a claim under s.15(1) of the Charter. Regarding the School Act provisions, the appeal decision fully addressed the appellant s submissions regarding the situation or status of a teacher who has fulfilled the probationary requirements so as to be eligible for a permanent contract with the School Board. The reasons for judgment at trial refer to s.85(1); at 58 the trial judge made a finding that the appellant as plaintiff had presented no evidence at trial to suggest the Board did not credit his probationary time with another school board for the purpose of applying s.83. [19] In its decision on the appeal, this court completed all its functions with respect to the appellant s appeal of the trial judge s decision regarding his claim against the respondents. Regarding the grounds raised by the motion for reconsideration, the reasons for the decision dismissing the appeal are clear and complete. There is no question of the decision not being accurately reflected in the order. This Court is therefore functus officio; and cannot reopen and rehear the appeal. The notice of motion does not provide a basis of jurisdiction for the Court to reopen the appeal. Accordingly, I would dismiss the appellant s motion on that basis. [20] I would award costs of the motion to the respondents on a partial indemnity basis, which I would fix in the all-inclusive sum of $1,700. I AGREE: Justice John A. McQuaid I AGREE: Justice Michele M. Murphy Chief Justice David H. Jenkins