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Appeal - Motion - Set Aside. Ellenor v. Chernysh
In Ellenor v. Chernysh (Ont CA, 2026) the Ontario Court of Appeal dismissed a motion to extend time to seek a leave to appeal (this from a single-judge case conference order lifting the automatic stay of an RTA termination order), and to re-impose the stay.
Here the court clarified that the review route for such an Divisional Court single-judge motion was to a panel set aside motion under CJA s.21(5):[10] As this court confirmed in Bernard Property Maintenance v. Taylor, 2019 ONCA 830, 148 O.R. (3d) 494, at paras. 2-3, “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 [Courts of Justice Act] before a panel of the Divisional Court”. Coote v. Ontario (Human Rights Commission), 2010 ONCA 580, cited with approval by this court in Bernard, affirms that with respect to the appropriate route to challenge a decision of a single judge of the Divisional Court, the “proper appeal route is to a panel of the Divisional Court on a motion under s. 21(5) of the Court of Justice Act.” See, also: Amstar Pool ILP v. Tweneboa-Kodua, 2025 ONCA 493, at para. 6; Pannone v. Peacock, 2022 ONCA 520, at para. 11; Lum v. College of Physiotherapists of Ontario, 2020 ONCA 271, at para. 15. All of these cases confirm that there is no appeal to this court from the order of a single judge of the Divisional Court in the present circumstances.
[11] The moving party’s reliance on s. 6(1)(a) of the Courts of Justice Act is misplaced. Section 6(1)(a) of the Courts of Justice Act permits this court to hear an appeal, with leave, from an order of a panel of the Divisional Court. As already noted, under s. 21(5), a review of an order made by a single judge of the Divisional Court lies to a panel of the Divisional Court. O’Brien J. made her case conference direction while sitting as a single judge of the Divisional Court. . R. v. Thangarajah [provincial civil appeal provisions n/a to criminal appeals, must be federal]
In R. v. Thangarajah (Ont CA, 2025) considered a civil CJA s.7(5) panel motion brought to set aside an earlier (criminal) single judge dismissal of a motion [under CCC 678(2)] to extend time to commence a criminal appeal. The issue was whether the court had jurisdiction to hear this civil appellate [CJA s.7(5)] set aside motion (or, for that matter, any appeal) of the refusal to extend time [under CCC 678(2)] - given that it was in a criminal context. The court clarifies that criminal appeals must, like any appeal, be legislated - and that, given the federal constitutional power over criminal matters, it must be federal legislation (which the CJA and RCP are not).
At para 8 the court plainly states: "... appeal rights in criminal matters must be created by federal criminal legislation.":[3] We agree with the Crown’s submission that this court does not have jurisdiction to review or hear an appeal from the order of the motion judge. In our view, the reasoning from R. v. J.M., 2021 ONCA 735, 158 O.R. (3d) 81, applies to the circumstances of this motion. In J.M., the court held that a panel of the court had no jurisdiction to review or hear an appeal from the order of a single judge dismissing a motion to appoint counsel under s. 684 of the Criminal Code. The court reasoned as follows. Rights of appeal are created only by statute. There is no inherent jurisdiction for appeals in criminal matters: J.M., at para. 20. Section 684 of the Criminal Code provides authority for a single judge or a panel of the court to appoint counsel to an accused on appeal where it is in the interests of justice and the accused does not have the means to obtain counsel. However, s. 684 contains no provision authorizing an appeal from a decision to grant or dismiss a motion to appoint counsel, nor does any other section of the Criminal Code: J.M., at para. 21.
[4] The court further held that s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, cannot create rights of appeal in criminal proceedings because the province does not have constitutional competence to legislate in relation to criminal law or procedure: J.M., at paras. 25-26; see also R. v. Scherba (2001), 2001 CanLII 4208 (ON CA), 155 C.C.C. (3d) 512 (Ont. C.A.), at paras. 10-11.
[5] The same reasoning applies here. The power to grant an extension of time is found in s. 678(2) of the Criminal Code. Section 678(1) provides that notice of appeal must be given “in such manner and within such period as may be directed by rules of court.” Section 678(2) provides that a single judge or a panel of the court may extend the time within which notice of appeal may be given. The structure of s. 678(2) is the same as s. 684 in that the jurisdiction to extend time to give notice of appeal may be exercised either by a single judge or by a panel of the court. It is also the same as s. 684 in that s. 678 does not provide for any right of review or appeal from a decision regarding an extension of time. Because criminal appeals must be created by legislation and there is no right of review or appeal in the Criminal Code from a decision in relation to an extension of time, there is no right of appeal or review from a decision of a single judge on a motion to extend time under s. 678(2) of the Criminal Code.
[6] Decisions of other provincial courts of appeal support the conclusion that a panel of a court of appeal does not have jurisdiction to review or hear an appeal from a decision of a single judge of the court dismissing or granting a motion for an extension of time under s. 678(2): Arcand c. R., 2009 QCCA 74, at para. 1; R. v. Harness, 2005 ABCA 245, 200 C.C.C. (3d) 431, at paras. 16-20, 33; R. v. O’Malley (1997), 1997 CanLII 3043 (BC CA), 119 C.C.C. (3d) 360 (B.C.C.A.), at paras. 9-19, leave to appeal refused, [1998] S.C.C.A. No. 94; R. v. Butchko, 2004 SKCA 159, 257 Sask. R. 41, at paras. 11-14; R. v. Aggek (D.I.) (1999), 1999 CanLII 32847 (NB CA), 209 N.B.R. (2d) 16, 535 A.P.R. 16 (C.A.); R. v. Giesbrecht (E.H.), 2008 MBCA 102, 237 C.C.C. (3d) 203, at paras. 9-21.
[7] Mr. Thangarajah referred the court to the recent decisions of R. v. Mohammad, 2024 ONCA 494, leave to appeal refused, [2024] S.C.C.A. No. 483, and R. v. Muirhead, 2025 ONCA 53, where panels of the court heard and dismissed motions to review a dismissal by a single judge of a motion for an extension of time to file an appeal. In both of those decisions, the court referred to decisions of the court under s. 7(5) of the Courts of Justice Act in explaining the standard of review. However, the panels dismissed both motions on the basis that the motion judge did not err in their decision to deny the request for an extension; neither panel decided the issue of jurisdiction.
[8] Because the issue of jurisdiction was not decided in Mohammad or in Muirhead, these cases are not determinative of jurisdiction: Heegsma v. Hamilton (City), 2024 ONCA 865, 174 O.R. (3d) 793, at para. 23; Singh v. Heft, 2022 ONCA 135, at para. 15; CIBC Mortgages Inc. (FirstLine Mortgages) v. Computershare, 2015 ONCA 846, 342 O.A.C. 49, at para. 12. As explained above, appeal rights in criminal matters must be created by federal criminal legislation. Section 7(5) of the Courts of Justice Act cannot provide authority for a panel of the court to review a decision of a single judge on a criminal motion.
[9] Although the court in J.M. held that there is no jurisdiction for a panel of the court to review or hear an appeal from a decision of a single judge dismissing a motion to appoint counsel under s. 684 of the Criminal Code, the court also held that in appropriate circumstances, a panel of the court may exercise its jurisdiction under s. 684 of the Criminal Code to consider a motion to appoint counsel afresh even though a single judge has already denied such a motion. Section 684(1) provides that a motion to appoint counsel can be heard by a single judge or by the “court of appeal”. The effect of this language is that a panel of the court has concurrent jurisdiction with a single judge to hear a s. 684 motion. A panel of the court will consider exercising its concurrent jurisdiction to consider the motion afresh where circumstances have changed sufficiently since the motion judge’s decision to warrant a reassessment: J.M., at paras. 31-34. . Hails v. Geauvreau et al. [attempted appeal of Div Ct case conference endorsement treated as motion set aside]
In Hails v. Geauvreau et al. (Ont Div Ct, 2025) the Ontario Divisional Court considered the appeal route, if any, for an RTA Divisional Court "case conference endorsement".
The court, faced with an attempted appeal of a Divisional Court case conference endorsement, held that the proper appeal route lay with treating it as a Divisional Court motion order [under CJA 21(3,5)]:[1] The appellant brings this motion in the Superior Court, seeking to appeal a case conference endorsement issued by Justice Jensen in her capacity as a judge of the Divisional Court.
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[4] .... At this stage, the main issue is whether this court has jurisdiction to sit in appeal of a case conference endorsement of the Divisional Court. New evidence about alleged fraud by the LTB is not relevant to or decisive of that question.
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[8] Section 21 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (CJA) sets out how and by whom various matters before the Divisional Court are determined. Paragraph 21(5) of the CJA stipulates that motions determined by a single judge of the Divisional Court can be set aside or varied by a panel of the Divisional Court. That provision does not explicitly deal with case conference endorsements. However, paras. 21(1) and 21(2) of the CJA deal broadly with “proceedings.” Reading s. 21 as a whole, it is clear that the legislator intended that all proceedings in the Divisional Court be dealt with by the Divisional Court, either by a single judge or by a panel of that court.
[9] The motion is dismissed. As a judge of the Ontario Superior Court, I have no jurisdiction to set aside or vary a case conference endorsement of a judge of the Divisional Court.
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