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