COURT OF APPEAL FOR ONTARIO
Sossin, Favreau and Monahan JJ.A.
BETWEEN
Mark Crowley
Applicant (Appellant)
and
Michelle Crowley*, Michael Crowley, Kavina Nagrani in her capacity as Estate Trustee for the Estate of Martha Crowley, Maureen Crowley, Kerry Crawford, Rory Crawford, Spencer Gross, Taylor Crowley-Gross, Meagan Crowley and Christian Crowley
Respondents (Respondent*)
Mark Crowley, acting in person
Ellen Brohm, for the respondent Michelle Crowley
Heard: February 26, 2025
On appeal from the order of Justice Annette Casullo of the Superior Court of Justice, dated June 18, 2024.
REASONS FOR DECISION
1The appellant, Mark Crowley, appeals from an order dismissing his application challenging the validity of his deceased mother’s will. The motion judge dismissed Mr. Crowley’s application because he failed to comply with a previous order, dated October 10, 2023, made by Justice McCarthy, removing his former solicitor from the record and requiring him to serve a notice of change of solicitor or a notice of intention to act in person within 30 days. The motion judge also ordered costs against Mr. Crowley in the amount of $27,343.18.
2As a preliminary matter, we disagree with the respondent’s submission that this court does not have jurisdiction over the appeal. The order dismissing Mr. Crowley’s application is a final order because it finally dismissed his application. The decision in Sennek v. Carleton Condominium Corporation No. 116, 2017 ONCA 154, at para. 15, which the respondents rely on, holds that a procedural order whose ultimate sanction for non-compliance is dismissal is an interlocutory order. It does not, as the respondents contend, stand for the proposition that an order dismissing a proceeding for failure to comply with an interlocutory order is itself an interlocutory order. Given that the motion judge’s order dismissing Mr. Crowley’s application is a final order, this court has jurisdiction to decide the appeal.
3On appeal, Mr. Crowley focuses largely on the merits of his underlying application. He alleges that his mother lacked testamentary capacity and that her will was made fraudulently and under duress. He also submits that the court below improperly dismissed his application for delay.
4The merits of the underlying application are not relevant to the issue of whether the motion judge erred in exercising her discretion to dismiss the application for non-compliance with Justice McCarthy’s order. Mr. Crowley’s application was not dismissed for delay. Rather, the motion judge dismissed Mr. Crowley’s application pursuant to rr. 15.04(8) and (9) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provide as follows:
(8) A client who is not a corporation shall, within 30 days after being served with the order removing the lawyer from the record,
(a) appoint a new lawyer of record by serving a notice under subrule 15.03 (2); or
(b) serve a notice of intention to act in person under subrule 15.03 (3).
(9) If the client fails to comply with subrule (8),
(a) the court may dismiss the client’s proceeding or strike out his or her defence … [Emphasis added.]
5In this case, quoting rr. 15.04(8) and (9), Justice McCarthy’s order removing Mr. Crowley’s former solicitor explicitly directed him to serve a notice of change of solicitor or a notice of intention to act in person within 30 days. The order also explicitly warned Mr. Crowley that if he did not comply with the order the court could dismiss his application.
6As the motion judge explained in her endorsement dismissing the application, Mr. Crowley’s failure to serve a notice of change of solicitor or a notice of intention to act in person within the specified time was consistent with an ongoing pattern of delay and non-compliance with previous court orders:
The deceased, Audrey Crowley, passed in 2020. Since its inception in 2021, this matter has followed a long and tortured road. The parties have been before the Court on numerous occasions.
The beneficiaries have patiently waited on the sidelines, hoping to see an end to the litigation. That end finally came today.
Mr. Crowley has been afforded many opportunities by the Court. He is unable to retain counsel, he has not complied with timetables, and he has not followed the Rules of Civil Procedure.
By way of Order dated October 10, 2023, Justice McCarthy gave Mr. Crowley one final opportunity to set this matter back on track. [Emphasis added.]
7The motion judge also found that Mr. Crowley was aware of Justice McCarthy’s order at the time it was made. She further stated that Mr. Crowley acknowledged that he had not yet complied with the order. On appeal, Mr. Crowley contests this finding, and points to a notice of intention to act in person in his materials dated April 18, 2024, which is over six months after Justice McCarthy’s order. He says that he prepared this notice and sent it to the parties as soon as he became aware of Justice McCarthy’s order. However, there is no evidence to support this contention and it runs counter to the motion judge’s findings of fact, to which we owe deference.
8As this court noted in Cunningham v. Hutchings, 2018 ONCA 365, at para. 5, dismissal of a proceeding is the “most draconian remedy available” for non-compliance with r. 15.04(8). However, in this case, the motion judge did not err in exercising her discretion to dismiss Mr. Crowley’s application. Justice McCarthy’s order complied with the requirement in r. 15.04(4)(e) that the order include the text of rr. 15.04(8) and (9). Mr. Crowley had fair warning that non-compliance could lead to a dismissal of his application. He has engaged in a pattern of delay and non-compliance. Finally, this ongoing delay is prejudicial to the respondents, who have been waiting for a long time to finalize the distribution of the estate. Accordingly, we see no error in the motion judge’s decision dismissing Mr. Crowley’s application.
9We also see no error in the motion judge’s costs award.
10The appeal is dismissed. The respondent is entitled to costs in the all-inclusive amount of $15,000.
“L. Sossin J.A.”
“L. Favreau J.A.”
“P.J. Monahan J.A.”