|
Civil Litigation Dicta - Motions - Set Aside. 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.
....
[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.
....
[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. . Alessandro v. Briggs
In Alessandro v. Briggs (Div Court, 2024) the Divisional Court considered an appeal against a refusal to set aside an order, here an order striking the appellant's defence [RCP 37.14]:[3] The motion giving rise to the Decision was brought under r. 37.14(1)(b) of the Rules of Civil Procedure. Under that subrule, an order may be set aside if a party fails to appear on a motion through accident, mistake or insufficient notice. As set out in the Decision, Mr. Alessandro’s explanation for failing to attend the hearing before Abrams A.J. was not accepted. Callaghan J. further concluded that Mr. Alessandro did not move forthwith after the order was made, that there was prejudice, and that the proposed defence to counterclaim had little merit. He therefore did not exercise his discretion to grant the motion to set aside.
|
