Date: 20031001
Docket: A-467-02
Citation: 2003 FCA 382
CORAM: DESJARDINS J.A.
BETWEEN:
DR. NOËL AYANGMA
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Halifax, Nova Scotia, on October, 1, 2003.
Order delivered from the Bench at Halifax, Nova Scotia, on October 1, 2003.
REASONS FOR ORDER OF THE COURT BY: Pelletier J.A.
Date: 20031001
Docket: A-467-02
Citation: 2003 FCA 382
CORAM: DESJARDINS J.A.
BETWEEN:
DR. NOËL AYANGMA
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER OF THE COURT
(Delivered from the Bench at Halifax, Nova Scotia, on October 1, 2003)
PELLETIER J.A.
[1] The applicant seeks an order pursuant to Rule 399(2)(a) of the Federal Court Rules, 1998 setting aside the order of this Court made on March 20, 2003 dismissing his appeal. The basis of the motion is the fact that the applicant has discovered jurisprudence which he says would be determinative of his appeal.
[2] Rule 399(2)(a) authorizes the Court to vary or set aside an order:
"by reason of a matter that arose or was discovered subsequent to the making of the order."
[3] The jurisprudence establishes three conditions which must be satisfied before the Court will intervene:
1- the newly discovered information must be a "matter" with the meaning of the Rule;
2- the "matter" must not be one which was discoverable prior to the making of the order by the exercise of due diligence; and
3- the "matter" must be something which would have a determining influence on the decision in question.
[4] We are not persuaded that the "matter" referred to in Rule 399 ("faits nouveaux" in the French version of the text) refers to jurisprudence. In Metro Can Construction Ltd. v. Canada, [2001] F.C.J. No. 1075 (F.C.A.), this Court decided that subsequent jurisprudence of our Court or of a higher Court does not constitute a "matter" that arose subsequently to the making of the order, within the meaning of Rule 399(2). Notwithstanding the decision of the Federal Court - Trial Division (as it then was) in Jhajj v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 369, it follows from this that jurisprudence existing at the time of the order cannot be a matter that arose subsequent to the decision. To hold otherwise would deprive all judgments of finality and would invite litigants to research their case after judgment was rendered.
[5] In any event, the requirement of due diligence applies to the conduct of the litigation prior to the making of the order in question. The efforts of the applicant following the rendering of the order dismissing his appeal, while commendable, are not relevant to his motion under Rule 399. We are not persuaded that the applicant could not have discovered the jurisprudence of this Court upon which he now relies prior to the making of the order in question by the exercise of the same diligence which he applied to the task after judgment.
[6] In the result, the motion must be dismissed, with costs in Column 5 of Tariff B.
"J.D. DENIS PELLETIER"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-467-02
STYLE OF CAUSE: Dr. Noël Ayangma and Her Majesty the Queen
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: October 1, 2003
REASONS FOR ORDER
OF THE COURT: Desjardins, Décary & Pelletier JJ.A.
DELIVERED FROM THE BENCH BY: Pelletier J.A.
APPEARANCES:
Dr. Noël Ayangma FOR THE APPELLANT
James Gunvaldsen-Klaassen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON