DATE: 20030131

DOCKET: M29127(C37735)

COURT OF APPEAL FOR ONTARIO

RE: IN THE MATTER OF THE ESTATE OF DORA HERBERMAN, DECEASED

LILLIAN STREISFIELD in her capacity as litigation administrator on behalf of the Estate of GERALD M. STREISFIELD, deceased, LILLIAN STREISFIELD in her personal capacity, CRAIG STREISFIELD, JEFFREY STREISFIELD, STEVEN STREISFIELD, SHERYL STREISFIELD, and MARLA STREISFIELD BORENSTEIN (Plaintiffs/Appellants/Responding Parties) - and - MARVIN GOODMAN, CAROL GOODMAN, JOYCE LAWEE, DAVID LAWEE and JEAN KARNOVSKY (Defendants/Respondents/Moving Parties)

MARVIN GOODMAN, JOYCE LAWEE AND JEAN KARNOVSKY (Plaintiffs by counterclaim/ Respondents/Moving Parties) - and -LILLIAN STREISFIELD in her capacity as litigation administrator on behalf of the Estate of GERALD M. STREISFIELD, deceased, LILLIAN STREISFIELD in her personal capacity, CRAIG STREISFIELD, JEFFREY STREISFIELD, STEVEN STREISFIELD, SHERYL STREISFIELD and MARLA STREISFIELD BORENSTEIN, 489223 ONTARIO LITMITED (carrying on business as “Field Construction, 1982”), THE PUBLIC GUARDIAN AND TRUSTEE, and LEONARD WEINSTEIN (in his capacity as Estate Trustee during the litigation of the Estate of Dora Herberman, deceased) (Defendants by counterclaim/Appellants/Responding Parties)

BEFORE: BORINS, CRONK AND ARMSTRONG JJ.A.

COUNSEL: Robert A. Watson for the moving parties

Carene Smith, Q.C. and Miles O’Reilly, Q.C. for the responding party, Jeffrey Streisfield

Lillian Streisfield responding party, in person

Craig Streisfield responding party, in person

Stephen Streisfield responding party, in person

HEARD: January 24, 2003

Motion to quash appeals from the judgment of Justice James D. Carnwath of the Superior Court of Justice dated January 17, 2002.

E N D O R S E M E N T

Released Orally: January 24, 2003

[1] This a motion by the respondents for directions. Principally they seek an order quashing the appeals that have been brought by the individual appellants on a number of grounds. In the view that we take, for the most part, the grounds advanced for quashing the appeals are without merit.

[2] It is argued that Lillian Streisfield is in contempt of court for failing to comply with that portion of the formal judgment of Carnwath J. that required her to deliver possession of the Herberman home to the Dora Herberman estate. In our view, this misreads the formal judgment. The judgment does not order that Lillian Streisfield deliver possession of the home, although it does award a variety of relief to the respondents in connection with the home. The formal judgment, however, in paragraph 6, established the mechanism for obtaining possession of the home. Under that paragraph, leave was granted to the respondents to issue a writ of possession with respect to the property. The respondents have not availed themselves of that means of executing the judgment and, accordingly, this ground must fail.

[3] The second ground for quashing the appeals is that the notices of appeal were filed out of time, contrary to rule 61.04(1) of the Rules of Civil Procedure. We do not agree. Although the principal reasons for judgment of Carnwath J. were released on August 20, 2001, which would normally be the date when the 30 day period begins for appealing from the judgment, that time was effectively extended to January 17, 2002 when issues regarding the payment of occupation rent were adjudicated by the trial judge and the formal judgment was signed and entered. This court recently dealt with a similar issue in Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc., [2003] O.J. No. 6. The reasoning of that judgment is conclusive, and compels our finding that the notices of appeal in this case were not filed out of time.

[4] Relief is asked with respect to issues concerning the administration of the Dora Herberman estate. Those matters are properly dealt with through the Estate List of the Superior Court of Justice in Toronto, applying the Estate Rules. Therefore, we decline to provide directions respecting the administration of the estate.

[5] However, there are two issues raised by the respondents that have merit. First, an appeal has been launched by Lillian Streisfield in her capacity as litigation administrator on behalf of the estate of Gerald Streisfield. Pursuant to rule 15.01(1), she is unable to personally represent the estate. Rule 15.01(1) requires that the estate be represented by a solicitor. In the circumstances, we order that if a solicitor is not retained by March 15, 2003 to represent the estate of Gerald Streisfield in its appeal, a motion may be made to this court to dismiss that appeal.

[6] The second issue concerns the appeal by Steven Streisfield. It is an appeal only in respect to that part of the judgment that ordered him to pay costs of the trial. He has not complied with s. 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which requires that he obtain leave to appeal, nor with rule 61.03(1)(16). His non‑compliance was brought to his attention by O’Connor A.C.J.O. in June 2002, when an earlier version of this motion was heard by the Chief Justice. Mr. Streisfield has taken no steps to comply with these procedural requirements, notwithstanding the admonition of the Chief Justice that he do so. Accordingly, we order that if he does not comply with s. 133(b) and rule 61.03(1)(16) by February 3, 2003, the appeal of Steven Streisfield is quashed.

[7] We feel bound to express our concern regarding the slow pace at which these appeals are progressing. Unfortunately, some appeals from the Superior Court of Justice in Toronto have been delayed as a result of trial transcripts not having been prepared within a reasonable time. This was a lengthy trial. It seems to have taken about 17 days. The transcripts have been ordered and paid for. At this time, because we have no information about the status of the transcripts, we do not feel that we should order that the appeal be expedited. It is difficult to do so without the completion of the transcripts. However, it is our view that, should the transcripts not be forthcoming within a reasonably short time, the proper motion can be made with respect to that issue and the possibility of ordering that the appeal be expedited.

[8] In our view, although the motion to quash was largely unsuccessful, this is not a proper case in which to order costs.

“S. Borins J.A.”

“E. A. Cronk J.A.”

“Robert P. Armstrong J.A.”