COURT FILE NO.: 213/07

DATE: 20080325

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

A.C.J.S.C. CUNNINGHAM, CARNWATH AND FERRIER JJ.

B E T W E E N:

MARY BERMINGHAM

Applicant (Appellant)

• and -

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

Respondents (Respondents)

Adam J. Wygodny, for the Applicant (Appellant)

Edward F. Olkovich, for Michael Watson, Estate Trustee of the Estate of Jeanette Bermingham, deceased

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

Ian M. Thompson, for the Respondent, Diane Bermingham

HEARD at Toronto: March 25, 2008

a.c.j.s.c. cunningham J.: (Orally)

1The moving party seeks pursuant to s.21(5) of the Courts of Justice Act, an order setting aside the order of Gans J., dated October 4, 2007.

2Certain criteria must be considered by a judge in determining whether or not to set aside a Registrar’s order. See Scaini v. Prochnicki, 2007 ONCA 63 where four criteria to be considered are enunciated.

3Clearly, the overriding consideration is what the justice of the case requires. See Frey v. MacDonald, [1989] O.J. No. 236 (C.A.) and Scaini v. Prochnicki (supra).

4Gans J. found he was not provided with enough information upon which he could make a reasoned decision to relieve the appellant from the operation of the rules. This was a conclusion Gans J. was entitled to reach based on the lack of evidence before him.

5The motion is dismissed.

COSTS

6We have endorsed the Record as follows: “Costs of Linda Bermingham and Diane Bermingham fixed at $2,500, all inclusive each, payable from the estate to be charged against the interest of Mary Bermingham.”

A.C.J.S.C. CUNNINGHAM

CARNWATH J.

FERRIER J.

Date of Reasons for Judgment: March 25, 2008

Date of Release: March 28, 2008

COURT FILE NO.: 213/07

DATE: 20080325

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT