Court of Appeal for Ontario

Date: 2025-03-31
Docket: COA-25-OM-0061
Judge: David M. Paciocco
Heard: 2025-03-20

Parties

Applicant (Respondent/Responding Party):
Jennifer Louise Hejno (formerly Stanley), personally and as named Estate Trustee for the Estate of John Jeffrey Hejno

Respondents (Appellants/Moving Parties):
Shawn Hejno, Jeffrey John Hejno, David Hejno, and Irene Veronica Hejno

Counsel for the Moving Parties:
Neil Colville-Reeves and Robert McGlashan

Counsel for the Responding Party:
Jennifer Stebbing and Cheryl Cheung

Endorsement

Background

[1] Pursuant to s. 21.1(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, on November 26, 2024, the application judge issued an order validating two technically deficient documents as the will of John Jeffrey Hejno. [1] The documents, a “primary will” and a “secondary will,” are both dated December 8, 2022, approximately one year and five months before John’s death. They purport to appoint John’s common law spouse Jennifer Louise Hejno (formerly Stanley) as executor of his sizable estate, and to leave her a life interest under a spousal trust consisting of his interest in his privately owned corporation, a residence (as well as an adjacent lot), his cash, and his other assets. On Jennifer’s death, or on the occurrence of other identified events, the estate or part of it is to go to John’s grandson, Shawn Hejno. The effect of the s. 21.1 order is to avoid an intestacy that, absent a successful support claim by a dependent, would apparently have resulted in John’s estate being divided between his two sons, Jeffrey Hejno and David Hejno.

[2] To make this order, the application judge had to be satisfied that the documents set out the testamentary intentions of the deceased. Although no one appeared to oppose the application, the evidence before the application judge arguably raised issues in this regard. The validated will included uninitialed “slip-sheeted” pages that had been inserted into the documents, apparently replacing pages that were in the documents as initially drafted. An affidavit from John’s lawyer, included in the application materials, attested that John advised him in February 2024, approximately two and half months before he died, that he wanted to ensure that his estate plan would take care of Jennifer, his spouse, but “he was indecisive about how” and had a “competing interest” in the survival of his corporation and his ‘legacy’. After John had provided the documents, they met again and John “could not confirm his instructions … for his wills”. His lawyer attested that he did not complete drafting John’s will because he “never received final instructions from John before he died”. The documents also purported to direct the disposition of shares in a corporation that were already issued to John’s son, Jeffrey. None of these issues were probed by the application judge during the oral application proceedings, and he provided no reasons for decision. The endorsement simply read: “Order to go in accordance with the Order signed.”

[3] Based on these and other considerations, the moving parties, Shawn, Jeffrey, and Irene Hejno (John’s 82-year-old ex-wife), forwarded a notice of appeal to Jennifer on February 18, 2025. In the motion now before me they are seeking an order extending their time to file that appeal. Among the other considerations that the moving parties rely on is that David, who would likely receive property in the event of an intestacy, has a serious mental health condition that may be affecting his comprehension of the issues, yet his mental illness was not disclosed in the application materials and no assistance was provided to him or to Irene, despite their vulnerability. The moving parties seek to explain their delay in appealing based on their limited understanding of the application, their limited ability to fund litigation, and the delay before they became aware of the order. Shawn attests that he did not learn of the order of November 26, 2024 until February 14, 2025. Jeffrey and Irene attest that they learned of the order from Shawn three days later, on February 17, 2024.

The Motion for Extension of Time

[4] Jennifer opposes the motion for an extension of time. She argues that the appeal is without merit. She emphasizes that none of the moving parties opposed the application, despite: (1) having received the notice of application and application record in early October 2024; (2) attending remotely during a preliminary appearance on November 19, 2024; and (3) Shawn and Jeffrey consulting a lawyer who confirmed in writing to Jennifer’s lawyer on November 12, 2024 that he would not be going on the record. The lawyer said, “I understand they are not going to oppose the Application at this time”. Jennifer argues that having chosen not to oppose the application before it was decided, they should not now be permitted to do so. She submits that Irene is an ex-wife with no possible interest in the validity of the will, and that David is not only presumed to be mentally competent but is not a party to the motion. She also references communications to support an inference that, contrary to their claims in their affidavits, the moving parties would have known about the order shortly after it was made. As well, she argues that she would be prejudiced by an extension of time to file. She points out that pursuant to the order she has taken on the burden of the executorship of a busy estate and that, because the application was not contested, she did not bring an application for dependent’s relief.

The Test for Extension of Time

[5] The test on a motion for an extension of time was stated in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15:

The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

a. whether the moving party formed a bona fide intention to appeal within the relevant time period;

b. the length of, and explanation for, the delay in filing;

c. any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and

d. the merits of the proposed appeal.

Analysis and Decision

[6] I am persuaded that in the circumstances of this case the justice of the case requires the extension the moving parties are requesting. Although the moving parties have not shown that they formed an intention to appeal within the appeal period, they did not see the order until the period had expired, and upon seeing it, they promptly formed that intention and instituted appeal proceedings without delay.

[7] The delay has not been overlong, and it has been explained.

[8] I am persuaded that there will not be prejudice caused to Jennifer if the extension is granted. I do not see her work as executor to be a hardship for her. She sought to take on that role for her own benefit, as the life estate holder. In the event the order is set aside on appeal, she can claim compensation for her work as the executor, which can be determined on its merits. It is not too late for her to bring an application for dependent’s relief, should that become necessary.

[9] There is also merit in the proposed appeal, illustrated by the failure of the application judge to address evidence that arguably casts doubt on whether the documents he found to be a valid will in fact set out the testamentary intentions of the deceased. There may also be merit in the appeal if the application judge is found to have made the order without scrutiny, on the basis that it was unopposed. I agree with the moving parties that the nature of the authority granted by s. 21.1 raises serious issues about the obligations on a judge to ensure that s. 21.1 is satisfied on the evidence, when such an application is brought. Despite the serious arguments that Jennifer offered in opposition, the issues raised warrant appellate consideration.

[10] In making this decision, I have considered the fact that the moving parties did not actively oppose the application. This might well ultimately hinder their appeal. But as Griffin J.A. explained in Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd., 2023 BCCA 436, at para. 89, an adverse party who does not actively oppose does not lose the right to appeal. It will be for the appeal panel to determine the significance, if any, of this consideration.

[11] I am therefore extending the time for filing the notice of appeal. I would not exercise my discretion to order security for costs. The cross-motion for security for costs is dismissed. The moving parties will have five business days after the release of this decision to serve and file a notice of appeal.

[12] As agreed by the parties, costs in this motion in the amount of $12,500 are payable to the moving parties by the responding party, Jennifer Louise Hejno (formerly Stanley) as named Estate Trustee for the Estate of John Jeffrey Hejno.

“David M. Paciocco J.A.”

[1] I will use first names because all the parties share the surname Hejno.