Case: Chuang v. Toyota Canada Inc., 2016 ONCA 852 (CanLII)

Keywords: Motion to Re-Open; Court of Appeal; Repudiation; Termination of Contract; Mujagic v. Kamps, 2015 ONCA 360 (CanLII), 125 O.R. (3d) 715; R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 S.C.R. 918


Dr. Sylvester Chuang and several related companies enter a commercial contract with Toyota Canada Inc. (Toyota). Toyota terminates the agreement. The Trial Judge holds Toyota’s termination is not reasonable, but says an exclusion clause protects Toyota from any obligation to pay damages. The Appellants appeal; the Court of Appeal dismisses the appeal (see Chuang v. Toyota Canada Inc., 2016 ONCA 584 (CanLII)).

The Appellants now seek to re-open their appeal on the basis Toyota repudiated the contract. It is argued the law of repudiation would lead the Court of Appeal to a different result. The Court of Appeal dismisses the Appellants’ motion.


In this case, the motion to re-open the appeal is dismissed for the following reasons (as stated by the Court of Appeal):

  • the legal theory relating to repudiation was not raised at trial;
  • the word ‘repudiation’ is not present in the Statement of Claim;
  • ‘repudiation’ was not advanced as a legal argument;
  • at the first appeal, ‘repudiation’ was entirely absent from both written and oral argument;
  • “After more than 10 years of litigation, it would be unfair to permit the appellants to re-open their appeal on a different legal issue”. (See paras. 5-7).

For the Court of Appeal, parties seeking to re-open an appeal after the appeal decision has been rendered face a “high hurdle”. (See at para. 7). When, and under what circumstances, can you re-open an appeal? The answer falls within the discretion of the Court of Appeal. Following language from the decision in Mujagic v. Kamps, 2015 ONCA 360 (CanLII), 125 O.R. (3d) 715, at para. 12, the Court of Appeal held that the power to re-open an appeal “‘will be exercised sparingly and only where it is clearly in the interests of justice’”. (See at para. 7).

Counsel for the Appellants: Fred Platt (Platt Law Office, Toronto)

Counsel for the Respondent: Timothy Pinos (Cassels Brock & Blackwell LLP, Toronto)

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