Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210201 DOCKET: M51853 (C68604)

Roberts, Zarnett and Sossin JJ.A.

BETWEEN

William Harold Patterson Applicant/Moving Party (Respondent)

and

Sarah Anne Elizabeth Patterson, in her personal capacity and in her capacity as the personal representative of the Estate of Sheila Patsy Patterson, and Donald David Oral Patterson Jr. Respondent/Responding Parties (Appellants)

Counsel: Carol Craig, for the appellants Taayo Simmonds, for the respondent

Heard: January 27, 2021 by video conference

Reasons for Decision

[1] The parties bring the following motions: 1) the respondent seeks to quash the appellants’ appeal, as their notice of appeal was served approximately 37 minutes late, and to extend the time for the service and filing of his notice of cross-appeal to vary the order under appeal to provide for leave to bring his passing of accounts application; and 2) the appellants, in their responding factum, move to extend the time for the service of their notice of appeal.

[2] These motions arise out of the appellants’ appeal from the order of Justice Brian W. Abrams, dated July 23, 2020, requiring them, among other things, to pass their accounts for the period of time they served as the attorneys for property for the late Sheila Patterson. The appellants are respectively the son and granddaughter of Mrs. Patterson. The granddaughter served as estate trustee for the estate of Mrs. Patterson. They both exercised powers of attorney for Mrs. Patterson during her lifetime. The respondent is also her son. Over the past several years, the parties have been embroiled in high conflict litigation over Mrs. Patterson’s modest estate.

[3] As context for the motions, one of the appellants’ principal grounds of appeal is their argument that the motion judge erred by failing to address the leave requirement for the respondent’s passing of accounts application under s. 42(4) (6) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30.

[4] We turn first to the respondent’s motion to extend the time for the service and filing of his cross-appeal. In our view, the justice of the case warrants the requested extension: Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 16. The issue of leave is the appellants’ principal focus of their appeal. The respondent requests that this court dismiss the appeal and grant an order varying the motion judge’s order to explicitly state leave was granted. The appellants do not consent to the variance sought nor agree that the respondent can seek that relief without a cross-appeal. He is therefore required to bring a cross-appeal to seek this relief in accordance with r. 61.07(1) (a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which indicates that a respondent who seeks to vary the order appealed from must serve a notice of cross-appeal.

[5] We do not accept the appellants’ submissions that the cross-appeal will require any duplication or cause prejudice because the respondent can incorporate his submissions on the leave issue in his responding factum and any necessary materials into his responding compendium on the appellants’ appeal. Under r. 61.12(6)(b) of the Rules of Civil Procedure, the appellants are entitled to file a factum as respondents to the cross-appeal.

[6] The respondent did not press his motion to quash in oral submissions, given the responding materials filed by the appellant. It is not in the interests of justice to quash the appeal. The cited breach was technical and caused no prejudice. The notice of appeal was served only about 37 minutes late, the appellants’ appeal materials were accepted for filing by this court, and the respondent made no complaint about the timeliness of service until over a month later, when the appellants refused their consent to the filing of his cross-appeal.

Disposition

[7] We therefore allow the respondent’s motion to extend the time for the filing of his cross-appeal to February 3, 2021, the date requested by the respondent.

[8] Given our disposition of the respondent’s motions, it is not necessary for us to consider the appellants’ request for an extension of time, which we therefore dismiss.

[9] In accordance with the parties’ agreement, the costs of these motions are reserved to the panel hearing the appeal and the cross-appeal.

“L.B. Roberts J.A.” “B. Zarnett J.A.” “Sossin J.A.”