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Appeals - Divisional Court Motion Set Asides [CJA 21(5)] (2). Douris v. Ontario (Law Enforcement Complaints Agency) [JR set aside motion]
In Douris v. Ontario (Law Enforcement Complaints Agency) (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a police complaint JR, here respecting "the decision dated July 8, 2024 (the “Screening Decision”) of the Complaints Director of the respondent Law Enforcement Complaints Agency (the “LECA”)".
Here the court dismisses a set aside motion, this respecting an earlier interlocutory JR motion [under CJA 21(5)] (now coupled with this JR since the court route is the same):[3] The applicant also seeks to set aside the decision of Justice Shaun O’Brien of the Superior Court of Justice dated March 14, 2025, reported at 2025 ONSC 1668 (the “ROP Decision”). In the ROP Decision, O’Brien J. dismissed the applicant’s motion to compel the LECA to add certain internal LECA documents to the record of proceeding (“ROP”) for the judicial review application. The disputed documents were prepared in connection with another complaint that the applicant made about the conduct of the same police officer.
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[26] In addition to the judicial review application, also before this panel is the applicant’s motion under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) to set aside the ROP Decision of O’Brien J. dated March 14, 2025.
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[31] The test for determining whether a decision should be set aside or varied under s. 21(5) of the CJA is well-established and has a high threshold. A moving party is not entitled to a hearing de novo. Rather, the moving party has the onus of demonstrating an error on a question of law, a palpable and overriding error on a question of fact, or an improper exercise of discretion: Guillaume, at para. 4. The applicant has not met that onus in this case. . South Junction Triangle Grows Neighbourhood Association v. City of Toronto
In South Junction Triangle Grows Neighbourhood Association v. City of Toronto (Ont Divisional Ct, 2025) the Divisional Court dismissed a CJA 21(5) motion to set aside the dismissal of an earlier motion to extend time to bring a JR:[13] A motion under s. 21(5) is not a fresh opportunity to re-argue for the relief sought on the original motion. It is a review of the Motion Decision, with this standard of review:(i) the Court will not intervene unless the motion judge made an error of law or palpable and overriding error of fact;
(ii) where the motion judge exercises discretion, a review panel will not interfere unless the moving party demonstrates that the decision is so clearly wrong that it amounts to an injustice or the motion judge gave no or insufficient weight to relevant considerations; and,
(iii) a single judge’s decision on a motion to extend time is discretionary and entitled to deference:
Lindsay v. Ecuhome Corporation, 2024 ONSC 6169 (Div. Ct), at para. 20, citing Rosen v. Reid, 2024 ONSC 5224 (Div. Ct), at para. 6; Khan v. 1806700 Ontario Inc., 2021 ONCA 724, at para. 2. . Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Officer)
In Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Officer) (Div Court, 2024) the Divisional Court considered a motion to set aside an earlier Divisional Court motion order [under CJA s.21(5)]:Court’s Jurisdiction on the Motion to Vary
[28] The Divisional Court has jurisdiction to hear this motion to vary under s.21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, (“CJA”) which states:A panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion. Standard of Review on the Motion to Vary
[29] The Divisional Court recently reiterated the standard of review to be applied to a s. 21(5) motion in Gong v. Ontario (Securities Commission), 2024 ONSC 1174 (Div. Ct.), at para. 7:A motion under s. 21(5) of the Courts of Justice Act is not a de novo hearing. A panel of the Divisional Court will only interfere with a motion judge’s decision if the motion judge made an error of law or a palpable and overriding error of fact. If the motion judge exercised discretion, a panel of this court can also only interfere if the moving party shows the impugned decision is so clearly wrong that it amounts to an injustice or that the motion judge gave insufficient weight to relevant considerations. [Emphasis added.] [30] This standard of review has been repeatedly applied by the Divisional Court when considering s. 21(5) motions.[1]
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