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Appeals - Divisional Court Motion Set Asides [CJA 21(5)]

. Chartrand v. Healthcare of Ontario Pension Plan

In Chartrand v. Healthcare of Ontario Pension Plan (Div Court, 2022) the Divisional Court considers the SOR on a CJA 21(5) panel motion to set aside a single-judge motion:
[9] Ms. Chartrand now brings this motion before a full panel under s. 21(5) of the Courts of Justice Act, R.S.O. 1990 c. C.43 for an order setting aside the decision of Justice Swinton.

[10] The standard of review is correctness on questions of law. A decision can also be set aside under s. 21(5) of the Courts of Justice Act if the motion judge made a palpable and overriding error on a question of fact or a question of mixed fact and law.
. Provan v. TWKD Development Inc.

In Provan v. TWKD Development Inc. (Div Ct, 2022) the Divisional Court considered the test for a panel motion [under CJA 21(5)] to set aside a single judge order from the same court:
[2] This motion is brought under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), which is the proper process to seek to set aside or vary a decision of a single judge of the Divisional Court: Bernard Property Maintenance v. Taylor, 2019 ONCA 830, 148 O.R. (3d) 494 at para. 2.

[3] The test on this review is summarized in the decision of this court in Guillaume v. Barney Rivers Investments Inc., 2022 ONSC 1123, at para. 4:
... The test on such a review is well established in this court: a motion to review is not a hearing de novo. This court will only interfere if it is established that the motion judge made an error of law or a palpable and overriding error of fact: ... Where a motion judge is exercising discretion, this court will not interfere unless a moving party shows that the impugned decision is “so clearly wrong that it amounts to an injustice” or the motion judge “gives no or insufficient weight to relevant considerations” [Citations omitted.]
. Desai v. Desai

In Desai v. Desai (Div Ct, 2022) the Divisional Court alludes to the standard of review, if any, that applies to a CJA 21(5) full panel motion set-aside - but then decides it's not necessary for the case before it:
[10] It is from this history that the matter proceeds to this panel. The nature of a proceeding brought pursuant to s. 21 (5) of the Courts of Justice Act is not clear. It is said, by the statute, to be a motion which is to say it is not an appeal. It is more in the nature of a reconsideration of the decision presumably moving through the same rationale and logic utilized by the judge to see if it withstands this additional scrutiny. However, this is understood, the question that remains is the determination of the standard of review to be applied. This has not been settled:
The standard of review on a hearing under s. 21(5) is not well settled. In Marsden v. The Queen, (Div. Ct.) para. 2 the motion panel held that “a panel will not interfere with a decision of the motions judge unless he or she has made an error of law or a palpable and overriding error of fact”. On the other hand, it is arguable that no standard of review analysis is required under s. 21(5) of the Courts of Justice Act because it is not an appeal from the decision of the motions judge, but simply a reconsideration. The language of s. 21(5) suggests the panel is hearing the matter de novo. If that is so, no deference would be required.

(CAS Ottawa v. L.F. (1) and (2), 2016 ONSC 4044 at para. 9)
[11] The submissions made do not touch on this question. It does not matter. ....
. Kovacevic v. Kovacevic

In Kovacevic v. Kovacevic (Div Ct, 2022) the Divisional Court considered a CJA 21(5) panel set aside of an order made on motion:
[9] Section 21(5) of the Courts of Justice Act, R.S.O. 1990, c C.43 provides that a panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion. Rule 61.16(6) of the Rules of Civil Procedure requires a notice of motion under section 21(5) to be served and filed within four days after the order is made.

[10] In Marsden v. Her Majesty the Queen, 2012 ONSC 6118 (CanLII), at para. 2, this court held that a panel will not interfere with a decision of the motions judge unless he or she has made an error of law or a palpable and overriding error of fact.

[11] The applicant did not bring her motion to set aside the 31 January 2022 decision of Corbett J. until 11 February 2022, well in excess of four days after the court’s decision on the respondent’s motion to strike. As was the case in Marsden, that alone would be sufficient reason to dismiss this motion.
. Guillaume v. Barney Rivers Investments Inc.

In Guillaume v. Barney Rivers Investments Inc. (Div Ct, 2022) the Divisional Court considered the test for a CJA 21(5) set aside motion (full panel reviewing single Divisional Court motion order):
[4] This is a motion to set aside or vary an order of a single Divisional Court motion judge pursuant to s. 21(5) of the Courts of Justice Act. The test on such a review is well established in this court: a motion to review is not a hearing de novo. This court will only interfere if it is established that the motion judge made an error of law or a palpable and overriding error of fact: Marsden v. Her Majesty the Queen, 2012 ONSC 6118 (Div. Ct.), at para. 2; Ontario Federation of Anglers and Hunters v. Ontario (Natural Resources and Forestry), 2017 ONSC 518, at para. 7 (Div. Ct.). Where a motion judge is exercising discretion, this court will not interfere unless a moving party shows that the impugned decision is “so clearly wrong that it amounts to an injustice” or the motion judge “gives no or insufficient weight to relevant considerations”: Franchetti v. Huggins, 2022 ONCA 111, at para. 5.
. Khan v. 1806700

In Khan v. 1806700 (Div Ct, 2021) the Divisional Court heard a s.21(5) set aside motion:
[22] A motion brought pursuant to section 21(5) of the Courts of Justice Act to review the order of a single judge of the Divisional Court is not a hearing de novo or an opportunity to argue the motion afresh. A three-judge panel of the Divisional Court will only interfere with the order if the motion judge made an error of law or an error of principle in exercising her discretion, or a palpable and overriding error of fact or mixed fact and law: Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644, at para. 9.
. MacLean v. Askew

In MacLean v. Askew (Div Ct, 2021) the Divisional Court heard a CJA 21(5) panel motion to set aside a single judge order:
[8] A motion to set aside pursuant to s. 21(5) of the CJA must be brought within four days of the impugned order (see Rule 61.16(6)). ...

[9] However, in any event, there is no merit to his motion to set aside. As the responding party properly points out, a motion pursuant to s. 21(5) is not a hearing de novo. The Court will not intervene unless there is an error of law or principle, or a palpable and overriding error of fact.

[10] The motion judge set out the correct test to be applied on a motion to extend the time for filing a notice of appeal, noting that a lack of merit in the proposed appeal can be a sufficient reason to refuse the motion (see, for example, 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5 at paras. 6-7).
. Flipca Ltd. v. Campbell

In Flipca Ltd. v. Campbell (Div Ct, 2020) the Divisional Court considered a motion to set aside the order of a single judge of the Divisional Court under CJA 21(5):
[14] Section 21(5) of the CJA permits a panel of the Divisional Court, on motion, to set aside or vary the decision of a judge who hears and determines a motion pursuant to s. 21(3).

[15] In order to succeed on this motion, the Tenant must demonstrate that Lederer J. made an error of law or a palpable and overriding error of fact. This court is not to hear the matter de novo: Stem Investments Limited v. Ryan, 2016 ONSC 6293 (Div. Ct.) at paras. 9-10; Bernard Property Maintenance v. Taylor, 2019 ONCA 830 (C.A.) at para. 26.
. Bernard Property Maintenance v. Taylor

In Bernard Property Maintenance v. Taylor (Ont CA, 2019) the Court of Appeal held that the normal review route for setting aside an order of a single judge of the Divisional Court is with a motion to a panel of that court [under CJA 21(5)]. However, on the unusual procedural facts of the appeal case, the court re-constituted itself as a CJA 21(5) Divisional Court panel "with the assent of the Chief Justice of the Superior Court of Justice and the consent of the parties" and heard the appeal nonetheless. The court makes the interesting point [at para.3] that the Divisional Court appeal (and set-aside) provisions should be exhausted before continuing to the Court of Appeal:
A. Appeal Improperly Brought in this Court

[1] This appeal from a single judge of the Divisional Court came before us sitting as a panel of the Court of Appeal. At the outset we asked the parties to address the jurisdiction of this court to hear the appeal. Mr. Taylor argued that appeal lay to this court pursuant to s. 6(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[2] I disagree. A line of authority establishes that the proper process to set aside or vary a decision of a single judge of the Divisional Court is a motion pursuant to s. 21(5) of the CJA before a panel of the Divisional Court. Mr. Taylor’s appeal was improperly filed in this court.

[3] In Overseas Missionary Fellowship v. 578369 Ontario Ltd. (1990), 1990 CanLII 6771 (ON CA), 73 O.R. (2d) 73, Morden A.C.J.O. held the appeal routes within the Divisional Court should “take precedence over and exclude the general terms of” the provisions governing appeal to this court, currently at s. 6(1) of the CJA: at p. 75. More recently, in Alliance to Protect Prince Edward County v. Ontario (Environment and Climate Change), 2018 ONCA 576, 17 C.E.L.R. (4th) 167, Lauwers J.A. observed that “the structure of the [CJA] requires a person to exhaust the remedial jurisdiction of the Divisional Court before coming to the Court of Appeal”: at para. 13. In Coote v. Ontario (Human Rights Commission), 2010 ONCA 580, this court summarily quashed an appeal of an order of a single judge of the Divisional Court to the Court of Appeal, stating, “The appellant’s proper appeal route is to a panel of the Divisional Court on a motion under s. 21(5) of the Court of Justice Act”: at para. 2.

[4] The reconstitution of a panel of this court as a panel of the Divisional Court is an action that is practically abandoned: P.M. v. M.A., 2017 ONCA 6, at para. 6. However, in the unusual circumstances that this court granted Mr. Taylor leave to appeal, a stay of the order below, and an extension of time, we reconstituted ourselves as a panel of the Divisional Court to hear and determine the matter as if it were a motion brought under s. 21(5) of the CJA with the assent of the Chief Justice of the Superior Court of Justice and the consent of the parties.




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