Simon's Megalomaniacal Legal Resources

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

. Rajaghatta v. Niranjan [frivolous and vexatious]

In Rajaghatta v. Niranjan (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a CJA s.21(5) motion order panel review, here brought against related orders to dismiss an appeal for "failure to perfect".

Here the court summarizes typical appeal practice and process, including the role of appeal case management in a R2.1 frivolous and vexatious context:

[3] Civil appeals in the Divisional Court generally follow a straightforward process. An appellant is required to perfect the appeal by filing the appeal record and factum. Responding parties file responding factums. Then the appeal may be heard.

[4] The appeal record is generally limited to the record that was before the trial court in respect to the order under appeal. With some exceptions, none of which apply in this case, the appeal is heard and decided by a panel of three judges of the Divisional Court.

[5] Case management in the Divisional Court aims to assist the parties to complete the process described above in order to schedule the hearing of the appeal. In a relatively straightforward appeal, such as the one in this case, case management should not require more than two or three simple email directions from the case management judge specifying the deadline for the appellant to deliver his appeal record, factum and required transcripts, and the deadline for the responding materials.

....

(b) R. 2.1, Case Management and Review Motions Pursuant to CJA, s.21(5)

[62] Prior to 2020, case management was the rare exception, rather than the rule, in the Divisional Court. The parties drive their own processes, with the Rules of Civil Procedure providing the structure for the process. Only if a party sought assistance from a judge by way of a motion would the court ordinarily intervene prior to a matter coming before a panel of the court.

[63] This all change when the COVID-19 pandemic required the court to take a hands-on approach to pre-hearing processes to adjust to conducting hearings virtually. This was borne of necessity at the time, but it also showed that case management led to a more efficient and effective process, with faster disposition of cases, and fewer expensive and time-wasting motions.

[64] Thus, now, judges are involved in Divisional Court cases shortly after those cases are initiated up to the time that they are scheduled for hearing before a panel. The task of the case management judge is to assist the parties to complete their pre-hearing preparation so that their matters are ready for a hearing on the merits. Where parties cooperate in this process, schedules may often be established and hearing dates identified within a few weeks of the matter commencing.

[65] Where parties do not cooperate, and particularly, where one party will not follow the court’s directions, and instead argues relentlessly with the court’s case management directions, a particular set of problems can develop that leads to cases being mired in pointless procedural conflict. Such a situation is not in the interests of the parties or the administration of justice, and so the court has developed two ways of dealing with the issue:

1. Directing that objections to case management directions may be raised with the panel hearing the appeal or application; and

2. Where appropriate, disposing of procedural objections by recourse to r. 2.1.

[66] The primary reason for these two approaches to addressing pointless and endless procedural conflicts during case management is s. 21(5) of the Courts of Justice Act.

[67] Subsection 21(5) provides:

A panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion.

[68] Case management directions are treated as analogous to decisions on a motion – they have the same effect as decisions on motions – they result in orders – usually (but not always) interlocutory – and their effect can range from incidental (such as most orders directing particular deadlines) to significant (striking out impermissible materials, striking out grounds of appeal, or dismissing proceedings) – all things a motion judge could do on a motion. The operating principle here is that case management directions can be made where there is a sufficient basis in the information provided to the case management judge by the parties, and the issue is not one that should be left for the panel to decide at the hearing, or it is one that a reasonable litigant could not oppose.

. Kaftroudi v. Ravadgar [leave to appeal of tribunal consent order]

In Kaftroudi v. Ravadgar (Ont Div Ct, 2025) the Ontario Divisional Court granted a CJA s.21(5) ['panel motion order set aside'] motion, here brought against a single-judge order where "the motion judge dismissed the Tenant’s motion (the “Leave Motion”) for leave to appeal the eviction order of the Landlord and Tenant Board" (it was a consent eviction order requiring leave to appeal under CJA 133a, which under RCP 62.02 requires a panel of judges):

[4] The threshold to grant a motion under s. 21(5) of the CJA is high: see Bernard Property Maintenance v. Taylor, 2019 ONCA 830, 148 O.R. (3d) 494, at para. 26. As explained below, we conclude that there was an error that met that threshold in this case.

[5] Section 21(3) of the CJA provides that a Divisional Court motion “shall be heard and determined by one judge, unless otherwise provided by the rules of court.” Rule 62.02 of the Rules of Civil Procedure, R.R.0. 1990, Reg. 194 provides “otherwise”. Under r. 62.02, leave to appeal any order or decision set out in that rule must be obtained from a three-judge panel of the court. The decision of a single judge does not meet that requirement.

[6] Under r. 62.02(1)3, orders that are subject to r. 62.02 include any “order or decision of a tribunal under a statute that provides that the order or decision may be appealed to the Divisional Court with leave of that Court, unless the statute provides for another procedure.” Rule 62.02(1)3 came into effect in July 2024, aligning the procedure for leave motions relating to statutory tribunal orders with the procedure for leave motions relating to court orders. Prior to that time, a leave motion relating to a tribunal order was heard by a single judge under s. 21(3) of the CJA, while a leave motion relating to a court order was heard by a three-judge panel under r. 62.02.

[7] In the matter before us, the Board’s Orders are subject to appeal to the Divisional Court on a question of law: RTA, s. 210(1). Leave of the court is required to appeal an order made with the consent of the parties: CJA, s. 133(a).

[8] We conclude that the Eviction Order falls within the scope of r. 62.02(1)3, by the combined operation of s. 210(1) of the RTA and s. 133(a) of the CJA. Therefore, leave to appeal the Eviction Order must be obtained from a three-judge panel of the Divisional Court. The Decision, having been made by a single judge, does not meet that requirement.

[9] In reaching that conclusion, we considered and rejected the Tenant’s submission that r. 62.02(1)3 does not apply because the right of appeal and the requirement to seek leave do not both arise under the RTA. We do not agree that r. 62.02(1)3 should be construed so narrowly. In our view, the interpretation we are adopting gives effect to the provision’s text, context and purpose.

[10] We also conclude that r. 62.02(1)3 applies in this case from a timing perspective, even though the Tenant filed her motion for leave to appeal in October 2023, several months before r. 62.02(1)3 came into effect in July 2024. It is well established that “new procedural legislation designed to govern only the manner in which rights are asserted or enforced, which does not affect the substance of the rights, applies immediately to pending and future cases”: see R. v. Debassige, 2021 ONCA 484, at para. 49.

[11] Accordingly, we conclude that it was an error for the motion judge to hear and determine the Leave Motion. Rule 62.02(1)3 applies, requiring that the Leave Motion be heard and determined by a panel of the court, not a single judge. However, as Tenant’s counsel notes in their submissions, this panel is able to provide a provide a remedy in this case.

[12] We have heard full argument on the question of whether leave to appeal should be granted and are in the position to address the Leave Motion without further delay. We conclude that leave to appeal should be granted. We provide no reasons for doing so, in accordance with the practice of this court (and appellate courts generally) not to provide reasons for deciding whether to grant leave to appeal: see Westhaver Boutique Residences Inc. v. Toronto (City), 2020 ONSC 3949 (Div. Ct.), at paras. 2-4. Any other remedy that the Tenant is seeking is left to the panel hearing the appeal.

[13] The order of Charney J. dated September 28, 2023 (2023 ONSC 5471, at para. 27) to stay the Eviction Order is continued pending the court’s decision on appeal or other resolution.

. Rowe v. College of Nurses of Ontario

In Rowe v. College of Nurses of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court considered the timeline for setting aside an appellate motion order [under R61.16(6)], and whether it applies only to appeals (and not JRs):

[43] The Applicant advances the argument that the timelines under Rule 61.16(6) only apply to appeals. That is clearly not the case as the s. 21(5) of the CJA relief has been used to review orders of judges sitting in the Divisional Court on applications for judicial review: see Marsden v. Her Majesty the Queen, 2012 ONSC 6118 and Kovacevic v. Kovacevic, 2022 ONSC 2389. There is no merit to the Applicant’s argument that there should not be a time limit to set aside an order made in a judicial review proceeding. There needs to be certainty surrounding challenging orders made by judges of the Divisional Court. While the delay set out under Rule 61.16(6) is short, it is necessary because it applies to numerous time-sensitive orders of this court such as eviction orders, that may require prompt judicial intervention. Accordingly, time is of the essence.

....

[51] Finally, the motion is out of time. No motion has been brought to extend the time to file the motion under rule 61.16(6) of the Rules. Once again, the Applicant has failed to substantiate why he was unable to meet the requirements of the Rules. As previously stated by the Divisional Court, the failure to meet the timelines can be sufficient reason to dismiss the motion: see Kovacevic at para. 11.

. Amstar Pool ILP v. Tweneboa-Kodua

In Amstar Pool ILP v. Tweneboa-Kodua (Ont CA, 2025) the Ontario Court of Appeal considered a motion for leave to appeal, this of a prior interlocutory motion order lifting the automatic RTA s.210 stay.

Here the court held that the proper remedial route was through a Divisional Court CJA 21(5) panel set aside motion, rather than an appeal:

[6] .... Section 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that the appropriate avenue to challenge a decision of a single judge of the Divisional Court is by way of a motion to set aside or vary that decision before a panel of the Divisional Court. See, for example, Bernard Property Maintenance v. Taylor, 2019 ONCA 830, at paras. 2-3.

. 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.

....

[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.

....

[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]