Court File No: 213/07

Date: 20071004

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

Re: MARY BERMINGHAM

Appellant/Moving Party

• and -

MICHAEL WATSON, Estate Trustee with a Will in the estate of Jeanette Bermingham, Deceased, CATHY BERMINGHAM, LINDA BERMINGHAM, and DIANE BERMINGHAM

Respondents/Respondents on Appeal

Before: The Honourable Mr. Justice Arthur M. Gans

Counsel: Harry McMurtry and Adam Wygodny, for the Appellant/Moving Party

Charles C. Mark, Q.C., for Linda Bermingham

Edward F. Olkovich, for the Estate Trustee Michael Watson

Nestor Wolicki, for Cathy Bermingham

Ian M. Thompson, for Diane Bermingham

Heard at Toronto: September 28, 2007

GANS J:

ENDORSEMENT

[1] This is an application for an order setting aside the Order of Assistant Registrar Skraban made on September 17th striking out the Appellant’s proposed appeal of the judgment of Perell J. made on the 4th of April last for failing to perfect the appeal in a timely fashion.

[2] The substance of these proceedings involves the Appellant’s attempt to contest the validity of the Will of her late mother, who died in the summer of 1998, but whose Will did not form the subject matter of a contestation application until the summer of 2006, some almost 8 years after the testatrix’s death. The matter first came on before Horkins J. in October 2006, who made a lengthy Order Giving Directions. A motion was thereafter made by counsel for one of the other beneficiaries, which came on before Perell J. at the end of March of 2007. The argument proceeded on several fronts, more particularly described in the Notice of Motion, filed, and the lengthy reasons of Perell J. This case, which is underscored by extreme pathos, if not bitterness, regrettably pits the Appellant against her three daughters. As stated above, at issue was the alleged testamentary ‘incapacity’ of the testatrix at the time of the preparation and execution of the Will, about which there is, at this stage, but a paucity of information and as best as I understand, little likelihood of it improving. (See the Reasons of Perell J. at para. 21-24.)

[3] While a Notice of Appeal from the Perell Judgment was served and filed within the time prescribed by the Rules, the matter was not perfected thereafter to the date of a motion before the Assistant Registrar pursuant to Rule 61.13, on September 17th. It is common ground between the parties that if the Assistant Registrar is satisfied that the time for perfecting the appeal had passed, then she had no discretion but to dismiss the appeal for want of perfection. However, and notwithstanding this apparent lack of discretion, there is a right of appeal to this Court under Rule 61.16(5).

[4] The only evidence filed in support of the instant motion was the affidavit of a legal assistant at the firm of the Appellant’s current solicitors, which purported to explain away the delay on information and belief from that which had been received from the Appellant herself. Put otherwise, there was no affidavit from the Appellant either before the Assistant Registrar or me, although there was, in my view, time sufficient to obtain one. When the matter came on for argument, I permitted counsel for the Appellant, Mr. McMurtry, to address the Court, although one of his associates was, notionally, counsel of record. He proceeded to provide me with unsworn information about why the matter had not been perfected in a timely fashion.

[5] I do not question the accuracy or veracity of Mr. McMurtry’s representations to the Court. They, as well as other information referenced in the affidavit of his firm’s legal assistant, in my opinion, should have formed the subject matter of an affidavit of the client/appellant, at least, since he purported to tell me, without explanation, that part of the delay involved matters of solicitor/client privilege. This assertion only left me guessing as to what, in fact, had transpired over the last five months since the Appellant was last represented at the hearing before Perell J. by very experienced estate litigation counsel. Put otherwise, I was not provided with enough information upon which I could make a reasoned decision to relieve the Appellant from the operation of the Rules, as draconian as they may now appear to her, to determine that the pre-requisites described in the cases had been met. Saying to me that the “justice of the case” demands that an extension of time be granted without anything further does not answer the question and allay my concerns. (See the decision of Blair J.A. in Frey v. MacDonald (1989), Carswell Ont. 343, 33 C.P.C. (2d) 13).

[6] Accordingly, and reluctantly, I must dismiss the appeal.

[7] If counsel cannot agree, I may be addressed on the issue of costs. Respondents’ counsel shall provide me with their position, reduced to one page each, within 10 days from the date of this Endorsement. The Applicant will be limited to a two-page statement which is to be delivered within 7 days from the receipt of the last Respondents’ position statement.

Gans J.

Released: October 4, 2007