CITATION: Hemchand v. Toronto (City) 2016 ONSC 7134

DIVISIONAL COURT FILE NO.: 261/16

DATE: 20161116

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: RAMLALL HEMCHAND v. THE CITY OF TORONTO and others

BEFORE: NORDHEIMER J.

HEARD at Toronto: written submissions

ENDORSEMENT

[1] On August 26, 2016, pursuant to r. 2.1.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I dismissed an application for judicial review brought by Mr. Hemchand on the basis that the proceeding was frivolous, vexatious or otherwise an abuse of the process of the court.

[2] Mr. Hemchand has now brought a motion to set aside or vary my order under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Counsel for the City of Toronto, one of the respondents to the application, seeks a further order under r. 2.1.01(1) essentially quashing the motion on the basis that there is no jurisdiction for a review of my earlier order by a panel of the Divisional Court. That request has again been brought to me as the Administrative Judge for the Divisional Court.

[3] I agree with counsel for the City. My earlier order was not the result of a motion. It was the result of the summary procedure provided by r. 2.1 and it is not, therefore, captured by s. 21(5). The precise wordings of r. 2.1 and of s. 21(5) are important to this conclusion. Rule 2.1 reads:

The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

[4] Two important points can be drawn from the wording of r. 2.1 for the purposes of this issue. One is that the rule refers expressly to "the court". It does not refer to "a judge". The Rules of Civil Procedure draw a clear distinction between the two. The other is that the process, under r. 2.1, is commenced by the court "on its own initiative". It is not commenced by a motion brought by a party.

[5] Section 21(5) of the Courts of Justice Act reads:

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

[6] First, it is clear from the wording of s. 21(5) that the authority to set aside or vary relates to the decision of a judge. It does not apply to a decision of the court. Since it may be of some importance to this point, I should note that, when I reviewed this matter and made the original r. 2.1 order, I did so in place of a panel considering the matter, pursuant to a designation made by the Associate Chief Justice under s. 21(2)(c) of the Courts of Justice Act.

[7] Second, the authority to set aside or vary is restricted to a decision made by a judge who "hears and determines a motion". As I have already said, an order made under r. 2.1 does not result from a motion.

[8] In my view, therefore, a party cannot rely on s. 21(5) to review an order of the Divisional Court made under r. 2.1. Any review of the order would have to be by way of appeal to the Court of Appeal, under s. 6(1) of the Courts of Justice Act.

[9] I would note, on this point, that the Court of Appeal recently released companion endorsements that indirectly touch on this issue. In Lin v. ICBC Vancouver Head Office, 2016 ONCA 788 and Lin v. SpringBoard, 2016 ONCA 787, the Court of Appeal dealt with two motions for leave to appeal from orders of the Divisional court made under r. 2.1. In both cases, those motions for leave to appeal were, themselves, dismissed by the Court of Appeal under r. 2.1 as being "devoid of merit". What is of importance from those decisions for the purposes of this issue, though, is the fact that, in neither case, did the Court of Appeal find that it did not have jurisdiction to consider the motion for leave to appeal. In other words, the Court of Appeal did not say that the appellant ought to have sought to have the orders in question reviewed by a panel of the Divisional Court under s. 21(5).

[10] I conclude, therefore, that there is no jurisdiction under s. 21(5) for a panel to review an order made by the Divisional Court under r. 2.1. Consequently, the motion here is without merit and thus constitutes a proceeding that is frivolous, vexatious or an abuse of the court's process. The applicant's motion to vary is therefore dismissed. There will be no order as to costs.

NORDHEIMER J.

DATE: November 16, 2016