Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210916 DOCKET: M52606 (C68850)

Strathy C.J.O., Pepall and Pardu JJ.A.

BETWEEN

Henia Gefen in her personal capacity and as estate trustee of the Estate of Elias Gefen Plaintiff ( Appellant/Responding Party )

and

Arie Gaertner, Miller, Canfield, Paddock and Stone LLP the Jewish Home for the Aged, Baycrest Hospital, Baycrest Centre for Geriatric Care, Yehuda Gefen and Harry Gefen Defendants ( Respondents/ Moving Party / Responding Party )

AND BETWEEN

Harry Gefen Plaintiff by Counterclaim ( Respondent/Responding Party )

and

Henia Gefen in her personal capacity and as estate trustee of the Estate of Elias Gefen, Harvey Gefen, Ashley Gefen, Dundas-Thickson Properties Ltd., 1393522 Ontario Limited and 1585708 Ontario Limited Defendants by Counterclaim ( Appellant/ Responding Party )

Counsel: Christopher M.B. Graham, for the moving party, Lucia Maria Saunders, Estate Trustee of the Estate of Yehuda Gefen (deceased) Ronald B. Moldaver, Q.C., for the responding party, Henia Gefen in her personal capacity and as estate trustee of the estate of Elias Gefen Devin McMurtry, for the responding party, Harry Gefen

Heard: September 15, 2021 by video conference

Reasons for Decision

[1] At the conclusion of submissions, we advised counsel that the motion to quash the appeal would be dismissed with reasons to follow. These are our reasons.

[2] The moving party seeks to quash the appeal of the responding party, Henia Gefen, on the ground that it is out of time.

[3] The trial judge released her reasons for decision on October 17, 2019. The judgment dismissed the claim of Henia Gefen in her personal capacity and as estate trustee. The judgment also dismissed the counterclaim of the responding party, Harry Gefen.

[4] The appeal of Harry Gefen from that judgment, and the appeal of Henia Gefen in respect of paragraph 5 of that judgment, are scheduled to be heard on October 13, 2021.

[5] Although the reasons were released on October 17, 2019, and a decision on costs was released on February 14, 2020, the judgment itself was not signed until October 16, 2020, because the parties could not agree on the form of judgment. It was necessary for the trial judge to convene a case conference and to receive further submissions in order to settle the judgment. On October 13, 2020, the trial judge released an endorsement giving reasons for settling the form of judgment.

[6] On October 20, 2020, Henia Gefen served a notice of appeal from the judgment, but only insofar as para. 5 of the judgment was concerned. That paragraph identified assets owned by the deceased at the time of his death.

[7] The moving party submits that the time for appeal generally runs from the date of the release of the reasons, not from the date that the judgment is finally settled and issued. That proposition, as a general rule, is well supported by authority: Fontaine v. Canada (Attorney General), 2012 ONCA 206, 213 A.C.W.S. (3d) 7.

[8] The general rule may be displaced where the judgment provides otherwise, or where the judgment is uncertain on a point, or where something of substance has been missed. In such cases, time runs from the date of entry of the judgment, not the date of pronouncement: Fontaine, at paras. 59-60; Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. (2003), 62 O.R. (3d) 647 (C.A.), at paras. 31, 33, 34, 36, 43.

[9] It is equally well settled, however, that the appeal itself is from the judgment and not from the reasons: Ross v. Canada Trust Company, 2021 ONCA 161, 458 D.L.R. (4th) 39, at para. 53. The content of para. 5 of the judgment was not a part of the trial judge’s “summary of disposition” at para. 248 of her reasons, where she summarized the relief that she granted.

[10] It was not until the judgment was finally settled, and issued, that the responding party, Henia Gefen, became aware that the content of para. 5 would form part of the judgment of the court. It is reasonable, in our view, to treat October 16, 2020 as the date on which time to appeal began to run and it is not, therefore, out of time.

[11] Quite apart from the foregoing, the two appeals are factually connected, the moving party has identified no prejudice as a result of an extension of time and it would have been in the interests of justice that an extension be granted, had it been necessary.

[12] The motion to quash is dismissed, with costs to the responding party, Henia Gefen, fixed in the amount of $3,500, inclusive of disbursements and all applicable taxes.

“G.R. Strathy C.J.O.” “S.E. Pepall J.A.” “G. Pardu J.A.”