CITATION: Ivany v. Simpson, 2015 ONSC 5322

DIVISIONAL COURT FILE NOs.: 226/15 & 299/15

DATE: 2015-08-25

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SHARON IVANY v. PATRICIA SIMPSON and JOHN NORMAN WELSH

BEFORE: NORDHEIMER J.

COUNSEL: G. E. McConnell, for the applicant, Sharon Ivany, responding party on the motion and moving party on the cross-motion

K. D. Goldstein for the respondent, John Norman Welsh, moving party on the motion and responding party on the cross-motion

HEARD at Toronto: written submissions

E N D O R S E M E N T

[1] The respondent, John Norman Welsh, seeks leave to appeal from the decision of Whitaker J. dated April 17, 2015 in which the motion judge added two parties as applicants in the proceeding and declined to order the applicant, Ivany, to post security for costs. The motion judge refused to deal with an issue regarding the production of medical records and did not address Welsh’s request that mediation be dispensed with. There is also a cross-motion by Ivany for leave to appeal the motion judge’s refusal to award any costs of the motions.

Leave to appeal – parties and security for costs

[2] It is not, in my view, necessary for the purposes of this motion for leave to appeal to set out the background facts in any great detail. It is sufficient to say that this proceeding involves a challenge by Ivany to the Last Will and Testament of Jean Glover who, I understand, left the bulk of her estate to Welsh. It is alleged that Jean Glover either did not have the testamentary capacity to make a proper Will or was subject to undue influence in making the Will that she did.

[3] In order to obtain leave to appeal, a moving party must satisfy one of the two tests set out in r. 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that reads:

Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[4] Welsh asserts that the motion judge failed to follow the decision in D.W. Lorentz Construction Inc. v. Anchorman Construction Ltd., [2007] O.J. No. 1534 (S.C.J.) in deciding to add the two additional applicants. I do not agree. The principles set out in Lorentz are principles of general application to the adding of parties. There is nothing in the decision of the motion judge to add the two party applicants that conflicts with those general principles. The two added parties are siblings of Welsh and, on Welsh’s own admission, “share a common interest” with Ivany.[^1] They too had, early on, raised an objection to the Will. Further, the decision to add or not add parties still remains a matter of discretion. I see no conflict in principle between the decision here and the general principles regarding adding parties nor to I see any good reason to doubt the correctness of the decision reached by the motion judge.

[5] In terms of the decision not to require Ivany to post security for costs, Welsh says that the motion judge’s decision conflicts with the principles set out in Smallwood v. Sparling (1983), 42 O.R. (2d) 53 (H.C.J.). Again I do not agree. Admittedly, Ivany does not live in Ontario. She lives in British Columbia. The Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5 applies to British Columbia. There is evidence that Ivany has assets in British Columbia and also in Alberta, to which the Reciprocal Enforcement of Judgments Act also applies. As noted in Smallwood, where a party has assets within a reciprocating jurisdiction, security for costs will not ordinarily be ordered. Once again, I see no conflict in principle between the decision here and the general principles set out in Smallwood nor do I see any good reason to doubt the correctness of the decision reached by the motion judge.

[6] The issue regarding the medical records was not the subject of any relief sought in the motions. It may have been referred to in the factum filed on behalf of Welsh but that is not the proper place to first raise separate relief. In my view, the motion judge was entirely within his rights to refuse to deal with that issue in those circumstances. Similarly, I am told that the issue about mediation was not addressed by the parties in their submissions. Consequently, the motion judge was entirely justified in assuming that the issue was not being pursued and therefore that he did not have to address it. In any event, there is no prejudice to Welsh from that decision as he can bring a further application for that relief if he is so advised.

[7] In the end result, I do not see any basis upon which leave to appeal ought to be granted regarding the motion judge’s decision on the motions.

Leave to appeal - costs

[8] The motion judge made no order as to costs on the motions. In doing so, the motion judge said:

There were a number of issues disposed of in the decision in this matter. It is hard to say that either party was successful. Success was mixed.

[9] Ivany fairly raises two issues regarding that decision. One is that Welsh’s counsel had sought and received an extension of time for the costs submissions to be filed to May 13, 2015. The costs submissions for Welsh were filed on May 1, 2015. The decision of the motion judge was delivered on May 4, 2015, prior to any costs submissions being filed on behalf of Ivany. That procedural error would itself raise a serious issue as to the correctness of the decision.

[10] Further, the statement by the motion judge that success was mixed is factually incorrect. Ivany had been successful in her motion to add parties and had also been successful in resisting Welsh’s motion for security for costs. While there may have been other valid reasons for not ordering any costs, mixed success was not one of them and that is the only reason to which the motion judge makes reference.

[11] In those circumstances, I have good reason to doubt the correctness of that decision.

[12] That said, though, there is a second component to that branch of the test for leave to appeal and that is that the proposed appeal involves matters of such importance that leave to appeal should be granted. Costs decisions of the type involved here rarely will involve matters of great importance outside of whatever importance they may have to the individual parties. This case is no different. While the circumstances giving rise to the costs decision may be unfortunate, the costs decision itself does not raise an issue of such importance that it should be addressed by a panel of the Divisional Court.

[13] I have concluded therefore that the cross-motion for leave to appeal must be dismissed.

Conclusion

[14] The motion and cross-motion for leave to appeal are both dismissed. In this instance, there has been mixed success. Consequently, I would make no order as to the costs of either of the motions.

NORDHEIMER J.

DATE: August 25, 2015

[^1]: Moving party’s factum, para. 8