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Appeals - Court of Appeal Motion Set Asides [CJA 7(5)]. GlycoBioSciences Inc. (Glyco) v. MAGNA Pharmaceuticals, Inc. (Magna)
In GlycoBioSciences Inc. (Glyco) v. MAGNA Pharmaceuticals, Inc. (Magna) (Ont CA, 2024) the Ontario Court of Appeal set out the test for a CJA s.7(5) panel set aside motion:[13] A panel review of a motion judge’s decision under s. 7(5) of the Courts of Justice Act is not a de novo determination: Correct Building Corporation v. Lehman, 2022 ONCA 723, at para. 3; Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9. Deference is owed to the discretionary decisions of a motion judge. A reviewing panel may only intervene if the motion judge erred in principle or reached an unreasonable result, or if the motion judge’s decision reflects a legal error or a misapprehension of material evidence: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18. . Majcen v. Nelson
In Majcen v. Nelson (Ont CA, 2024) the Ontario Court of Appeal sets out the test for a CJA s.7(5) motion panel set aside:[5] A panel of this court may review a motion judge’s decision. The nature of such a review is addressed in Correct Building Corporation v. Lehman, 2022 ONCA 723, at para. 3:A panel review of a motion judge’s decision under s. 7(5) of the Courts of Justice Act is not a de novo determination: Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9. Discretionary decisions of a motion judge are entitled to deference. However, a reviewing panel may intervene if the motion judge erred in principle or reached an unreasonable result, or if the motion judge’s decision reflects legal error or a misapprehension of material evidence: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18; Iqbal v. Mansoor, 2022 ONCA 198, at para. 2. . Saffih v. Sbih
In Saffih v. Sbih (Ont CA, 2024) the Ontario Court of Appeal dismissed a CJA s.7(5) panel set aside motion of a motion that "refused to extend the time for him to perfect an appeal and to grant a stay pending final determination of that appeal":[4] A motion to review the order of a single judge of this court under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, is not a rehearing. A panel of this court may interfere with the order under review if the motion judge failed to identify the applicable principles, erred in principle, or reached an unreasonable result: Student A v. Toronto French School, 2024 ONCA 83, at para. 13, citing Weidenfeld v. Weidenfeld, 2022 ONCA 860, at para. 11. . Anani v. Sharawy
In Anani v. Sharawy (Ont CA, 2024) the Ontario Court of Appeal dismissed a set aside motion which was in turn brought against an earlier appellate motion that affirmed that the moving party was required to file a formal order from the court below to the perfect an appeal:[1] Zaid Anani seeks to appeal a summary judgment order made against him on January 15, 2024. This appeal is not yet perfected. He has yet to file an issued and entered order from that decision.
[2] On April 2, 2024, Benotto J.A. denied his motion in writing to dispense with the filing of an issued and entered order. Mr. Anani did not have the required order because he did not follow the directions that the Registrar of the Superior Court communicated to him. Instead, he “insisted that the order be signed even though he did not have the order approved as to form and content”. In dismissing the motion, she found “[t]he applicant is required to follow the rules. He cannot fail to do so and then come to this court seeking an order for non-compliance.”
[3] In the motion in writing that is before us, Mr. Anani seeks to have the order made by Benotto J.A. “set aside or varied” by this panel. In order for a panel to set aside or vary the order of a judge who hears and determines a motion, it must be found that the motion judge “failed to identify the applicable principles, erred in principle, or reached an unreasonable result”: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18. .... . Graham v. New Horizon System Solutions
In Graham v. New Horizon System Solutions (Ont CA, 2024) the Ontario Court of Appeal denied a CJA s.7(5) panel set aside motion against an earlier appeal motion result:[4] A panel review of a motion judge’s decision is not a de novo determination. Where the motion judge has made a discretionary decision, as in this case, the decision is entitled to deference and the reviewing panel will not interfere absent legal error or misapprehension of material evidence: Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 20. . Clancy v. Farid
In Clancy v. Farid (Ont CA, 2024) the Ontario Court of Appeal dismisses a set aside of a registrar's dismissal of an appeal for delay [under R61.16(5)]:[27] A Registrar’s order may be set aside by a judge of the appellate court: r. 61.16(5). In the case of a Registrar’s dismissal order made because time limits in the Rules were not complied with (see r. 61.13(1)-(3)), the factors guiding the exercise of the power to set the dismissal aside are those set out in Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 4:i. Whether the appellant formed a bona fide intention to appeal within the relevant period;
ii. The length of the delay and explanation for the delay;
iii. Whether there is prejudice to the responding parties in granting the order;
iv. Whether the appeal is meritorious; and
v. Whether the “justice of the case” requires it, the justice of the case being the overriding consideration.
See also Hategan v. Frederiksen, 2022 ONCA 217, at para. 41; Jewish Foundation of Greater Toronto (Re), 2022 ONCA 581, 1 C.B.R. (7th) 1, at para. 19; Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, at para. 2. [28] Although the cases cited do not address a Registrar’s dismissal order that was granted based on the failure to meet a judicial deadline, in my view the same factors remain relevant, but certain of them take on added importance. First, where, as here, the judicial deadline was an extension from that mandated by the Rules and has been tailored specifically to the circumstances of the appeal, heightened attention to the length of, and explanation for, the delay beyond the deadline is warranted. Second, where, as here, the deadline was set to limit prejudice to the respondent, heightened attention to the prejudice caused to the respondent by the further delay is also warranted. Nevertheless, the overriding concern will always be whether the justice of the case requires an extension.
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iii. The Merits
[38] Determining whether the justice of the case requires an extension includes consideration of the merits of the appeal. The question is not whether the appeal will succeed – it is whether the appeal lacks merit to the extent that, in the circumstances, it is just to deny the appellant the right to proceed with it: Issasi, at para. 10. Depending on their nature, assertions in the notice of appeal might not, on their own, establish that there is any merit to the appeal if there is nothing in the record for the extension motion – a record that can include an affidavit appending material that is proposed to be filed for the appeal[3] – that shows the assertions have enough grounding to qualify as arguable grounds of appeal: 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, at paras. 7-8. . R. v. Mohammad
In R. v. Mohammad (Ont CA, 2024) the Ontario Court of Appeal considered two panel review motions [under CJA 7(5)] challenging dismissals of private-prosecution stays:[11] A panel review of a motion judge’s decision is not a de novo determination: Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9; Asghar v. Toronto (Police Services Board), 2021 ONCA 338, at para. 6. Intervention is warranted if the motion judge “failed to identify the applicable principles, erred in principle or reached an unreasonable result”: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18; see also Oliveira v. Oliveira, 2022 ONCA 218, at para. 5. Absent legal error or misapprehension of evidence, discretionary decisions of a motion judge, such as the refusal to grant an extension of time, to order production, or to permit summons to witnesses, are entitled to deference: SS & C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2021 ONCA 913, at para. 6.
[12] The motion judges made no reversible errors. Nor is there any indication of bias in Favreau J.A.’s decision. The moving party has failed to meet the high onus to displace the presumption of judicial impartiality. . Bank of Nova Scotia v. Curtis
In Bank of Nova Scotia v. Curtis (Ont CA, 2024) the Ontario Court of Appeal dismissed a panel set aside motion:[2] On a review motion under s. 7(5) of the Courts of Justice Act, a panel of this court may interfere with the order under review if the motion judge “failed to identify the applicable principles, erred in principle, or reached an unreasonable result”: Hililmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th), at para. 18. . Student A v. Toronto French School
In Student A v. Toronto French School (Ont CA, 2023) the Court of Appeal considered (and denied) a CJA 7(5) panel set aside request, here where the original appellate motion denied a stay pending appeal (heard on the RJR-MacDonald test):(1) Did this Court’s Motion Judge Err in Refusing a Stay of Proceedings Pending Appeal?
[13] On a review motion under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, a panel of this court may interfere with the order under review if the motion judge “failed to identify the applicable principles, erred in principle, or reached an unreasonable result”: Weidenfeld v. Weidenfeld, 2022 ONCA 860, at para. 11.
[14] The motion judge correctly identified the applicable principles, applied them, and reached a reasonable conclusion.
[15] He considered whether there was a serious issue to be tried, whether the appellant would suffer irreparable harm if the stay were not granted, and where the balance of convenience lay: RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334.
[16] The motion judge noted that, while he could not make a final determination on the jurisdiction of this court in the underlying appeal, it was likely that this court does not have jurisdiction to hear this appeal because the case management judge’s order was interlocutory, not final. This finding was properly taken into account in deciding whether the appeal raises a serious issue: Ncube v. Hassen, 2022 ONCA 840, at para. 16.
[17] Moreover, the motion judge was correct that the case management judge did not have jurisdiction to grant the order requested in the Criminal Code motion. Civil courts have no authority to make binding declarations of illegality or criminal guilt, and there is no provision in the Criminal Code or the Courts of Justice Act that empowers them to do so on a civil motion: Bunker v. Veall, 2023 ONCA 501, 168 O.R. (3d) 356, at para. 14; London Health Science Centre v. R.K. (1997), 1997 CanLII 14487 (ON SC), 152 D.L.R. (4th) 724 (Ont. S.C.), at para. 18. Although superior court judges are ex officio justices of the peace, an applicant should not be permitted to “highjack” a civil action by forcing the judge to take jurisdiction over a criminal prosecution.
[18] In any event, a finding of criminal guilt in this context would be based only on the evidentiary record put forward by the parties, rather than based on more complete evidence that may be available to a prosecutor: Bunker, at paras. 18, 21 and 23. The availability of a more appropriate procedure, in this case before a justice of the peace, is an accepted reason to deny declaratory relief: Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363, at para. 64.
[19] As such, the motion judge did not err in considering the case management judge’s lack of jurisdiction in his determination that there was no serious issue to be tried on the appeal.
[20] The motion judge also held that there was no irreparable harm in refusing the stay, as the case management judge’s order does not require the appellant to take or refrain from any action, or affect his rights. Furthermore, he found that the balance of convenience favours the respondents as granting the stay would frustrate the case management judge’s ability to ensure that the litigation stays on track. We see no error in this determination.
[21] For these reasons, the request to review the motion judge’s order refusing to stay the order of the case management judge pending appeal, is dismissed. . Lumaj v. St. Michael's Hospital
In Lumaj v. St. Michael's Hospital (Ont CA, 2023) the Court of Appeal considers the SOR for a CJA 7(5) panel set aside of a motion order:[3] A panel review of a chambers judge decision under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 is not a de novo determination. In this case, this means that the moving parties have to establish that Sossin J.A. made a legal error or misapprehended the evidence: Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9. . Awad v. Dover Investments Limited
In Awad v. Dover Investments Limited (Ont CA, 2023) the Court of Appeal considered the standard for a CJA 7(5) panel set aside motion:[3] A panel review of a motion judge’s decision under s. 7(5) of the Courts of Justice Act is not a de novo determination, and discretionary decisions of a motion judge are entitled to deference: Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9. We are not satisfied that the motion judge erred. Instead, she correctly applied the legal test for an extension of time to her factual findings, which were well rooted in the evidence. She properly dismissed the motion, which would have prolonged a patently unmeritorious appeal. . Gefen v. Gefen
In Gefen v. Gefen (Ont CA, 2023) the Court of Appeal considered a (1) CJA 7(5) full panel set aside motion (a 'review'), this of (2) the dismissal of an earlier single-judge set aside motion, and (3) that of the granting of "an estate motion finding that a testator was "incapable of managing her property and instructing counsel. The motion judge also appointed a litigation guardian and guardian of property on her behalf.":[5] As this court recently reiterated in Iqbal v. Mansoor, 2022 ONCA 198, at para. 2, “a panel review of [a single motion judge’s decision] is not a de novo hearing, but one that focusses upon whether the motion judge’s decision reflects legal error or a misapprehension of material evidence.” We see no such reversible error here. . Auciello v. Yao
In Auciello v. Yao (Ont CA, 2023) the Court of Appeal considers a CJA 7(5) motion, seeking a panel set aside of a single judge motion:[19] A panel review of a motion judge’s decision is not a de novo determination: Van Delst v. Hronowsky, 2022 ONCA 782, at para. 2. This court may only interfere with the order of a single judge of this court if the judge “failed to identify the applicable principles, erred in principle or reached an unreasonable result”: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18. . Hategan v. Frederiksen
In Hategan v. Frederiksen (Ont CA, 2023) the Court of Appeal considered a CJA 7(5) panel set aside motion:[2] This is a motion under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 for a panel review of Pardu J.A.’s order. On a motion to review an order denying an extension of time to appeal, the moving party must satisfy the court that the motion judge (i) failed to identify the applicable principles; (ii) erred in principle; or (iii) reached an unreasonable result: Oliveira v. Oliveira, 2022 ONCA 218, at para. 5. . Weidenfeld v. Weidenfeld
In Weidenfeld v. Weidenfeld (Ont CA, 2022) the Court of Appeal briefly set out the criteria for a CJA s.7(5) panel set aside:[11] On a review motion of this kind, a panel may interfere with the order under review if the motion judge failed to identify the applicable principles, erred in principle, or reached an unreasonable result: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18; Oliveira v. Oliveira, 2022 ONCA 218, at para. 5. . Correct Building Corporation v. Lehman
In Correct Building Corporation v. Lehman (Ont CA, 2022) the Court of Appeal considered the standard of review for a CJA 7(5) panel set aside of an appeal motion order. In this case, the moving party didn't precede the panel set aside with a R59.06/CJA 7(2) single judge set aside, which is allowable (ie. they can proceed with or without the single judge set aside first):[3] A panel review of a motion judge’s decision under s. 7(5) of the Courts of Justice Act is not a de novo determination: Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9. Discretionary decisions of a motion judge are entitled to deference. However, a reviewing panel may intervene if the motion judge erred in principle or reached an unreasonable result, or if the motion judge’s decision reflects legal error or a misapprehension of material evidence: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18; Iqbal v. Mansoor, 2022 ONCA 198, at para. 2. . Asghar v. Toronto (Police Services Board)
In Asghar v. Toronto (Police Services Board) (Ont CA, 2021) the Court of Appeal considered a motion to set aside a chambers judge's order:[5] On this panel review motion, Mr. Asghar seeks to set aside the order of the chambers judge and obtain the same relief sought on the underlying motion. We decline to grant that relief.
[6] A panel review of a chambers judge’s decision is not a de novo determination. Where the chambers judge has made a discretionary decision, the decision is entitled to deference and the reviewing panel will not interfere absent legal error or misapprehension of material evidence: Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9. In addition, if the chambers judge committed an error in principle, the panel may intervene: Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21. . SS & C Technologies Canada Corp. v. The Bank of New York Mellon Corporation
In SS & C Technologies Canada Corp. v. The Bank of New York Mellon Corporation (Ont CA, 2021) three judges of the Court of Appeal heard a CJA 7(5) motion to set aside a single court of appeal judge's order (referred to as a panel review):[6] It is well established that a panel review of a motion judge’s decision is not a de novo determination: Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9. The reviewing panel asks whether the motion judge erred in principle in disposing of the motion: see Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21. Discretionary decisions of a single judge are, absent legal error or misapprehension of evidence, entitled to deference: Machado, at para. 9; Yaiguaje, at para. 20. . Hillmount Capital Inc. v. Pizale
In Hillmount Capital Inc. v. Pizale (Ont CA, 2021) the Court of Appeal considered their CJA 7(5) jurisdiction:[18] On a panel review of the order of a single judge pursuant to CJA s. 7(5), the panel may interfere with the order if the chambers judge failed to identify the applicable principles, erred in principle or reached an unreasonable result: DeMarco v. Nicoletti, 2017 ONCA 417, at para. 3; Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21; Struik v. Dixie Lee Food Systems Ltd., 2018 ONCA 22, at paras. 5-6.
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