[1] This is a motion under Rule 399(2)(a) for an order setting aside a June 22, 2000 judgment of this Court dismissing Metro Can's appeal from a decision of the Tax Court and for an order directing a new hearing before a five-person bench of this Court.

[2] The grounds for the motion are that on December 22, 2000, this Court issued its decision in Madson v. The Queen, 2001 DTC 5093, which, Metro Can says, is inconsistent with the Court's June 22, 2000 judgment involving Metro Can. Metro Can says the decision in Madson is a matter that arose subsequent to the making of the June 22, 2000 Metro Can judgment and constitutes grounds to set aside the Metro Can judgment and have a rehearing and redetermination of the Metro Can appeal.

[3] Paragraph 399(2)(a) provides:

399(2) On motion, the Court may set aside or vary an order

(a) by reason of a matter that arose or was discovered subsequent to the making of the order;

399(2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l'un ou l'autre des cas suivants :

a) des faits nouveaux sont survenus ou ont été découverts après que l'ordonnance a été rendue;

[4] Reconsideration is a narrow exception to the doctrine of res judicata. In Jhajj v. Canada (M.E.I.), [1995] 2 F.C. 369 (T.D.), it was determined that subsequent decisions of a higher court do not constitute "a matter that arose [...] subsequent" as those words are used in paragraph 399(2)(a). The same principle would apply to subsequent decisions of the same Court. In Jhajj, it was decided that reconsideration on the basis of subsequently decided jurisprudence was not reconcilable with the res judicata doctrine and that taken in this context, "a matter" did not include subsequent decisions of a higher court. If "a matter" included subsequent decisions, reconsideration could be sought in any previous case whenever there was a change in the law that would result in a different disposition of that previous case. Further, it would create unacceptable uncertainty for litigants and the public who must be satisfied that, once a judgment is rendered, it is final. We see no reason to depart from this analysis and conclusion.

[5] Metro Can has cited Ontario and House of Lords decisions which stand for the proposition that where there has been a change in the law, the res judicata doctrine will not always prevent a decided issue from being relitigated in subsequent proceedings. See Minott v. O'Shanter Development Co. (1999), 168 D.L.R. (4^th) 270 (Ont. C.A.), Robb v. St. Joseph's Health Care Centre, 2001 O.J. No. 606 (Q.L.) (C.A.) and Arnold et al. v. National Westminster Bank Plc. (1991) 142 N.R. 31 (H.L.). These cases allow for the exercise of discretion by a court, in special circumstances, in deciding whether to permit an issue, that would otherwise be prevented from being raised by reason of res judicata or issue estoppel, to be relitigated in subsequent proceedings. However, none of these decisions are reconsideration cases and they do not stand for the proposition Metro Can advances before us, that subsequent decisions that change the law should be a basis for reconsidering previously decided cases. There is a fundamental difference between permitting an issue that has been decided being relitigated and redetermined in subsequent litigation on the basis of a change in the law on the one hand, and reopening a previously decided case on the basis of a change in the law on the other. It is only the latter that would lead to the reconsideration of an indefinite number of previous cases, a result not reconcilable with the rationale for the res judicata doctrine.

[6] Metro Can says that it will suffer injustice if the Court does not re-open its appeal. However, we would note that, in its application for leave to appeal the Metro Can decision of this Court to the Supreme Court of Canada, Metro Can raised the alleged inconsistency between Madson and Metro Can. Nonetheless, the Supreme Court dismissed the leave application.

[7] For the foregoing reasons, we will dismiss the reconsideration application with costs.

"Marshall Rothstein"

J.A.

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