Court of Appeal for Ontario

Date: 2019-01-04 Docket: C64298

Judges: Strathy C.J.O., Roberts and Zarnett JJ.A.

Between

Jo Anne Appleyard, Objector Appellant

and

Janice Zealand, Applicant for Certificate of Appointment of Estate Trustee with a Will Respondent

Counsel

Jo Anne Appleyard, acting in person

M. Jasmine Sweatman, for the Respondent

Heard in writing: December 21, 2018

On Appeal

On appeal from the order of Justice Jennifer Woollcombe of the Superior Court of Justice, dated August 1, 2017, and, pursuant to leave granted by the April 19, 2018 order of this court, on appeal from the order of Justice Dale Fitzpatrick of the Superior Court of Justice, dated March 15, 2017.

Reasons for Decision

[1] The appellant appeals from the August 1, 2017 order dismissing her motion to set aside or vary the March 15, 2017 order. The March 15, 2017 order, from which she also appeals, required the appellant to seek leave of the court before she could advance any claims against her deceased former husband's estate, failing which her claims would be dismissed. The parties agreed that the appeals would be heard in writing.

[2] The appellant and her former spouse were divorced in 1996. He died in 2013 leaving a will dividing his estate between his common-law partner and his two children. The appellant was not a named beneficiary under the will. The appellant filed two objections to the appointment of the respondent, Janice Zealand, as the estate trustee, and put forward claims for arrears in spousal support and ongoing spousal support, return of property and unjust enrichment.

[3] On behalf of the estate, Ms. Zealand obtained the March 15, 2017 order that the appellant was required to bring an application for leave before the Superior Court of Justice pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, before bringing any claim or motion, pursuant to the June 5, 2008 order of C. Campbell J. made in the appellant's bankruptcy proceedings. The March 15, 2017 order further stipulated that if the appellant failed to serve her leave application within 30 days of the order, her claims against the estate would be dismissed.

[4] The appellant's subsequent motion to set aside or vary the March 15, 2017 order was dismissed on August 1, 2017, on the basis that she did not meet the criteria on which she relied under rr. 37.14(1)(b) and 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Appeal of the August 1, 2017 Order

[5] Turning first to the appeal of the August 1, 2017 order, we are not persuaded that the motion judge erred in dismissing the appellant's motion to set aside or vary the March 15, 2017 order. Specifically, the appellant's failure to appear on the motion before Fitzpatrick J. was not due to "accident, mistake or insufficient notice" under r. 37.14(1)(b), as the appellant alleged. Rather, as the motion judge correctly observed, in the light of the several prior adjournments at her request, the appellant took a calculated risk in failing to appear and requesting a further adjournment of a peremptory motion date for reasons that Fitzpatrick J. was entitled to reject as insufficient to excuse her absence. Similarly, we see no error in the motion judge's conclusion that there was no fraud as required under r. 59.06(2)(a) to permit the court to set aside or vary the March 15, 2017 order.

[6] Accordingly, we dismiss the appeal from the August 1, 2017 order. The costs order remains in force.

Appeal of the March 15, 2017 Order

[7] With respect to the March 15, 2017 order, we agree that the motion judge erred in concluding that the June 5, 2008 order made in the bankruptcy proceedings applied to bar the appellant advancing her claim without first obtaining leave in the estate proceedings or any other proceedings unrelated to her bankruptcy.

[8] Paragraph 5 of the June 5, 2008 order is the operative provision that underpins the March 15, 2017 order. It precludes and prohibits the appellant "from bringing any further or other proceedings or seeking any other relief without leave of this Court" until the appellant has complied with the $2,500 costs order set out in para. 4 of the June 5, 2008 order and all other costs orders outstanding against the appellant relating to the appellant's bankrupt estate.

[9] It is common ground that there has been no order, including the June 5, 2008 and March 15, 2017 orders, in which the appellant has been declared a vexatious litigant under section 140 of the Courts of Justice Act. Absent that declaration, it was unreasonable and incorrect for Fitzpatrick J. to expand the reach of the June 5, 2008 order beyond the bankruptcy proceedings in which it was made. It makes little sense that the appellant would be precluded from bringing a claim unrelated to the bankruptcy proceedings for failing to satisfy costs orders made in those proceedings. Nor was it reasonable or correct for him to impose a requirement on the appellant to obtain leave to bring further proceedings under section 140 of the Courts of Justice Act, a requirement that would properly apply only to someone found, under that section, to be a vexatious litigant.

[10] As a result, we allow the appeal and set aside the March 15, 2017 order, including the costs order against the appellant, on terms.

Conditions on Appeal

[11] Given the significant and protracted delay and incurrence of costs to-date in the estate proceedings, in our view, it is in the best interests of all parties to allow the appeal on terms that will serve to expedite the estate proceedings. Accordingly, we exercise our discretion under s. 134(1) of the Courts of Justice Act and make the following order:

Failing agreement, within 30 days of the release of these reasons, the estate trustee shall bring a motion for directions before a judge of the Superior Court to establish a timetable for the administration of the estate, including such steps as may be appropriate for the timely determination of the appellant's claims.

Disposition

[12] Accordingly, the appeal from the August 1, 2017 order is dismissed. The appeal from the March 15, 2017 order is allowed on the terms specified above in para. 11 of these reasons.

[13] There was mixed success on these appeals. We therefore make no order as to costs.

"G.R. Strathy C.J.O."

"L.B. Roberts J.A."

"B. Zarnett J.A."