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Appeals - Court of Appeal Motion Set Asides [CJA 7(5)] (2). Novak v. CIBC World Markets Inc.
In Novak v. CIBC World Markets Inc. (Ont CA, 2026) the Ontario Court of Appeal refers to what it describes as "the regrettable revolving door process made possible because of the prospect of panel review under s. 7(5) of the Courts of Justice Act", which - if I read the case right - is a judicial statement of frustration in the face of repeated CJA s.7(5) panel motion reviews which can be made anytime a CA appellate motion is lost. So such motion losses as time extensions - for any of the short interlocutory time limits - can be reviewed again under s.7(5).:[2] On September 10, 2025, Sossin J.A. dismissed a motion for an extension of time to appeal a Divisional Court order that dismissed Mr. Novak’s appeal from a 2019 arbitral award. Justice Sossin refused to grant the initial motion before this court because of excessive and unexplained delay and because of insufficient merit in the proposed appeal.
[3] Mr. Novak then sought panel review of Sossin J.A.’s order. Justice Madsen was asked to grant Mr. Novak an extension of time to seek panel review of Sossin J.A.’s decision after a near ten-month delay. She denied the motion on the basis that Mr. Novak did not address the test for an extension of time.
[4] Mr. Novak moves before me to extend the time to review the decision of Madsen J.A. dated July 23, 2026.
[5] The applicable law is clear. A party who moves to set aside or vary the order of a single judge of the Court of Appeal under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, must serve and file with proof of service a notice of motion within four days after the order is made pursuant to r. 61.16(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.[1] The date required to file was July 29, 2026, but the notice was filed was July 30, 2026, a day late. Mr. Novak therefore needs an extension of time.
[6] The test for an extension of time was succinctly stated by Gillese J.A. in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15:The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:
(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;
(b) the length of, and explanation for, the delay in filing;
(c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and
(d) the merits of the proposed appeal. [7] The last factor, the merits, is the most important and can be determinative: see e.g., Liu v. Chan, 2024 ONCA 699, at para. 29; Robson v. Law Society of Ontario, 2023 ONCA 709, at para. 5. Lack of merit alone can be a sufficient basis to deny an extension of time: Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, at para. 7, citing Enbridge, at para. 16.
[8] I have no doubt that Mr. Novak always had an intention to appeal every one of the decisions that were adverse to him. Related to the motion to panel review the order of Madsen J.A. is very short – one day. The problem is that the appeal appears to be without merit and might be an abuse of the court’s process. I could dismiss his motion on that basis alone, but I decline to do so for the following reason.
[9] I have the discretion to refuse the extension of time. However, in my view it would be more prudent to extend time in order to permit panel review of the order of Madsen J.A. This is not because I consider her order to be in error. Mr. Novak has engaged himself and this court in the regrettable revolving door process made possible because of the prospect of panel review under s. 7(5) of the Courts of Justice Act. Because he can, Mr. Novak will endlessly pursue panel review; I conclude that it is best for that panel review to happen rather than to expend more judicial resources in an interminable process.
[10] The motion for leave to extend the time to apply for panel review is granted. . Unity Health Toronto v. 2442931 Ontario Inc. [CA has jurisdiction to panel review motion orders only in 'exceptional circumstances']
In Unity Health Toronto v. 2442931 Ontario Inc. (Ont CA, 2026) the Ontario Court of Appeal considered a BIA s.193(c) [appeal as of right] versus s.193(e) [leave to appeal required] issue.
The court considered the CA's jurisdiction under CJA s.7(5) ['panel set aside of motion'], here in this BIA insolvency context:1. Jurisdiction of the court
[29] As indicated above, Unity Health takes the position that a panel of this court does not have jurisdiction to review the chambers judge’s decision. I only agree with Unity Health in part. As I explain below, a panel of this court has jurisdiction to review the chambers judge’s determination that there is no appeal as of right under s. 193 of the BIA. However, a panel of this court only has jurisdiction to review the chambers judge’s decision denying leave under s. 193(e) of the BIA in exceptional circumstances.
[30] Section 193 of the BIA sets out the circumstances under which an appeal lies to this court from a decision under the Act. Sections 193(a) to (d) provide a direct right of appeal in enumerated circumstances. Section 193(e) provides for a right of appeal “in any other case by leave of a judge of the Court of Appeal”. A single judge of this court can decide the issue of whether there is an appeal as of right under ss. 193(a) to (d) of the BIA on a motion for directions: Cardillo v. Medcap Real Estate Holdings Inc., 2023 ONCA 852, at para. 25, motion to review dismissed, 2024 ONCA 278; Global Royalties Limited v. Brook, 2016 ONCA 50, at para. 17.[4] A single judge can also decide a motion for leave to appeal as directed by the language of s. 193(e) of the BIA.
[31] Pursuant to s. 7(5) of the Courts of Justice Act, a panel of this court has jurisdiction to review the decision of a single judge deciding a motion for directions regarding the issue of whether an appeal can proceed as of right under ss. 193(a) to (d) of the BIA: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18. However, a panel reviewing such a decision owes deference to the chambers judge’s determination that leave is required. The panel will only interfere if the chambers judge failed to identify the applicable principles, erred in principle or reached an unreasonable result: Hillmount, at para. 18.
[32] In contrast, as a general proposition, the decision of a single judge on a leave motion under s. 193(e) of the BIA is not subject to review by a panel of this court: Business Development Bank of Canada v. Aventura II Properties Inc., 2016 ONCA 408, 132 O.R. (3d) 159, at paras. 3-4, leave to appeal refused, [2016] S.C.C.A. No. 280; Ting (Re), 2022 ONCA 258, 98 C.B.R. (6th) 199, at paras. 2-3. Despite this jurisdictional constraint, however, a panel of this court may review the decision of a single judge dismissing a motion for leave to appeal under s. 193(e) of the BIA in very exceptional circumstances. In McEwen (Re), 2020 ONCA 511, 452 D.L.R. (4th) 248, the court held that a panel may review such a decision where the chambers judge “mistakenly declines jurisdiction”, such as where the chambers judge did not reach a decision “on the merits of [the] leave to appeal motion”: at paras. 70-71.
....
3. There is no basis to review the chambers judge’s denial of leave
[45] The Agent submits that the chambers judge erred in refusing leave to appeal from the Lift Stay Order pursuant to s. 193(e) of the BIA. As addressed above, the panel may only assume jurisdiction to review the chambers judge’s decision denying leave in exceptional circumstances.
[46] As indicated above, in McEwen, at paras. 70-71, the court described the exceptional circumstances that might justify intervention by a panel as including where the chambers judge “mistakenly declines jurisdiction”, for instance if the chambers judge did not reach a decision “on the merits of [the] leave to appeal motion”.
[47] There is no basis for making such a finding in this case. In dismissing leave to appeal, the chambers judge articulated the well-established test for leave to appeal under s. 193(e) of the BIA set out in Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29, which requires the court to look at whether the proposed appeal:(a) Raises an issue that is of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole, and is one that this court should therefore consider and address;
(b) Is prima facie meritorious; and
(c) Would unduly hinder the progress of the bankruptcy/insolvency proceedings. [48] The chambers judge then applied each of these factors to the circumstances of this case. He found that the proposed appeal does not raise issues of general importance because it concerns “a decision about specific contracts in a unique set of circumstances”. He addressed the merits of the proposed appeal, finding that the Agent “would face a difficult task in convincing a panel of this court to interfere with [the motions judge’s] decision to lift the stay”. He also addressed the impact that the appeal would have on the progress of the receivership, concluding that delay in terminating the Project Agreement would delay the progress of the insolvency proceedings, given that the Project Agreement is ProjectCo’s only asset.
[49] While the Agent may not agree with the chambers judge’s analysis and may be persuaded that it contains serious errors, it has not demonstrated that the chambers judge declined jurisdiction in the sense that he applied the wrong test or that he did not decide the issue of leave on the merits. On the contrary, the chambers judge clearly decided not to grant leave based on an application of the correct test to the circumstances of the case.
[50] The Agent argues that the chambers judge failed to recognize that his refusal to grant the appeal will render its appeal from the Dismissal Order moot. In other words, if Unity Health is allowed to terminate the Project Agreement, the Agent will no longer be able to pursue any rights it claims as under the Project Agreement. The Agent submits that the chambers judge’s alleged failure to recognize this issue amounts to the type of exceptional circumstances that warrants the panel’s intervention. I disagree. Even if the chambers judge had failed to address an issue raised by the Agent, that does not amount to declining jurisdiction or a failure to apply the correct test. In any event, while the chambers judge did not address this issue explicitly in his reasons for dismissing leave to appeal, it is evident from his reasons as a whole that he was aware of this issue. Specifically, when describing the parties’ positions on the motion, the chambers’ judge explicitly recited the Agent’s concern “that if it cannot appeal the Lift Stay Order, its appeal of the Dismissal Order will be rendered moot because the respondent will terminate the Project Agreement once the stay is lifted and any claim to the TIC payment will be extinguished.”
[51] There are no exceptional circumstances that would justify this panel’s interference.
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