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Appeals - Divisional Court Motion Set Asides [CJA 21(5)] (2). 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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