COURT OF APPEAL FOR ONTARIO

CITATION: Lawlor v. Walton, 2015 ONCA 358

DATE: 20150520

DOCKET: C59868

Weiler, Cronk and Pepall JJ.A.

BETWEEN

Linda Lawlor and Linda Mills

Plaintiffs (Appellants)

and

Pamella Walton and Latoya Johnson and

Marjorie Johnson

Defendants (Respondents)

Howard Gerson, for the appellants

Granville N. Cadogan, for the respondents

Heard: May 11, 2015

On appeal from the order of Justice P.H. Howden of the Superior Court of Justice, dated December 11, 2014.

ENDORSEMENT

[1] The appellants appeal from the motion judge’s ruling on the respondents’ motion under Rules 21 and 25.11 of the Rules of Civil Procedure. The motion judge concluded that the appellants’ action was an impermissible collateral attack on an October 27, 2010 decision of the Deputy Director of Titles under the Land Titles Act, R.S.O. 1990 c. L.5 (the “Land Titles Decision”), which the appellants failed to appeal. Accordingly, the motion judge granted the respondents’ motion and dismissed the appellants’ action.

[2] The appellants appeal. For the following reasons, we conclude that the appeal must be allowed.

[3] The motion judge noted in his reasons that, in their statement of claim, the appellants sought an order granting them an extension of time within which to appeal the Land Titles Decision. However, the motion judge did not address the merits of whether the appellants had satisfied the test for an extension of time or whether such an extension should be granted.

[4] The record before the motion judge also included a decision by Spies J. of the Superior Court of Justice, dated February 2, 2014, acquitting the appellant Linda Lawlor of fraud in relation to the transactions at issue in the appellants’ action. Justice Spies’ core factual findings at Ms. Lawlor’s criminal trial are diametrically at odds with the Deputy Director’s findings in the Land Titles Decision.

[5] Of course, the factual findings at the criminal trial were in no way binding on the motion judge. Ms. Lawlor’s acquittal at her criminal trial merely established that the Crown had failed to prove, to the requisite criminal standard, that she had engaged in fraud in relation to the property at issue. Nonetheless, the findings in the criminal proceeding were relevant to an assessment of the full circumstances of this case, especially where they ran contrary to the inculpatory findings on the same or similar issues in the Land Titles Decision. The motion judge, however, made no mention of the criminal proceeding, or of the extensive reasons of the trial judge in that proceeding.

[6] Further, the record before this court provides some support for the appellants’ claim that procedural fairness at the hearing before the Deputy Director of Titles was compromised. Contrary to the motion judge’s view, there is evidence at this appeal hearing that service on the appellants of notice of the hearing before the Deputy Director may have been defective. It is also uncontested that the appellants participated only on the second day of the hearing before the Deputy Director and that they were afforded no opportunity to question the respondents’ witnesses who had testified in the appellants’ absence.

[7] In our view, in many respects, neither side in this dispute has conducted this litigation in accordance with the proper procedures contemplated under the Rules of Civil Procedure. That said, we are persuaded that the appellants’ conduct prior to and at the hearing before the motion judge is consistent with the view that their request for an extension of time within which to appeal the Land Titles Decision was a live issue.

[8] Finally, we note that the findings of fraudulent conduct made against the appellants in the Land Titles Decision are most serious. In addition, the practical effect of that decision is to require the appellant Linda Lawlor to vacate the home where she has resided for approximately eight years.

[9] In all the circumstances, the interests of justice require that the appellants’ request for an extension of time to appeal the Land Titles Decision be heard on the merits, on a proper record.

[10] Accordingly, the appeal is allowed and the appellants’ action is reinstated, without prejudice to renewal by the respondents of their Rule 21 motion, if so advised. If the appellants intend to proceed with a motion for an extension of time within which to appeal the Land Titles Decision, they shall serve and file their motion, on proper materials, in the Superior Court of Justice within 45 days from the date of the release of these reasons, failing which they will be deemed to have abandoned any extension of time request.

[11] In the unusual circumstances of this case, no award of the costs of the appeal is appropriate.

“K. M. Weiler J.A.”

“E.A. Cronk J.A.”

“S.E. Pepall J.A.”