Court of Appeal for Ontario

Date: 20210217 Docket: C67279

Strathy C.J.O., Brown and Miller JJ.A.

Between

Cheri Ann Hernandez Applicant (Appellant)

and

Norman Hernandez, Anna Hernandez, the Office of the Public Guardian and Trustee, and Barbara Taylor Respondents (Respondents)

Counsel: Nour Jomaa, for the appellant Anthony R. Leardi, for the respondent, Norman Hernandez

Heard and released orally: February 11, 2021 by video conference

On appeal from the judgment of Justice Russell M. Raikes of the Superior Court of Justice, dated July 3, 2019, with reasons at 2019 ONSC 4067.

Reasons for Decision

[1] Anna Hernandez, whose personal care is the subject of this appeal, died on March 1, 2020. The respondent submits that we should dismiss the appeal as moot. The appellant counters that we should hear the appeal because there remains a “live controversy”: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. Alternatively, she submits that we should exercise our discretion to hear the appeal.

[2] We do not agree that there is a “live controversy”. The relief sought in the appeal relates to which of Norman Hernandez and Cheri Ann Hernandez should be responsible for the personal care of their mother, Anna. That relief is no longer available, and the appeal has no practical purpose and is moot.

[3] We do not accept the appellant’s submission that there remains a live issue as to costs. The appellant’s liability for the costs below is simply an incidental consequence of Anna’s death and is not a live issue.

[4] Nor do we accept the appellant’s submission that we should hear the appeal because it may have implications for a passing of accounts proceeding between the parties. Effectively, the appellant asks us to set aside a finding of fact made by the application judge to prevent that finding from being used in the passing of accounts proceeding. We decline to do so. Any necessary findings of fact will be for the judge in the passing of accounts.

[5] For the following reasons, we do not accept the appellant’s invitation to exercise our discretion to hear the appeal and grant the relief she now seeks:

a. First, for the reasons set out above, hearing the appeal will have no practical effect on the rights of the parties;

b. Second, we do not agree that the appeal raises issues of public importance. In our view, it is of importance only to the parties, is largely fact-based and there is no uncertainty in the law; and

c. Third, in the circumstances of this case, it is neither in the interests of justice nor an appropriate use of judicial resources, to hear an appeal simply to decide which party should be responsible for the costs below or for the purpose of binding a judge in other pending proceedings.

[6] The appeal is therefore dismissed, with costs to the respondent in the amount of $9,000, inclusive of disbursements and HST, to be paid personally by the appellant and not out of the estate.

“G.R. Strathy C.J.O.”

“David Brown J.A.”

“B.W. Miller J.A.”