COURT OF APPEAL FOR ONTARIO DATE: 20220804 DOCKET: C67667
Feldman, Roberts and Favreau JJ.A.
BETWEEN
Jo Anne Appleyard Appellant
and
Janice Zealand Respondent
Counsel: Joseph Kary, for the appellant M. Jasmine Sweatman, for the respondent
Heard: March 18, 2022 by videoconference
On appeal from the order of Justice Clayton Conlan of the Superior Court of Justice, dated October 2, 2019, with reasons reported at 2019 ONSC 5722.
Roberts J.A.:
OVERVIEW
[1] The appellant, Jo Anne Appleyard, appeals from the motion judge’s order dismissing her unissued “Claim Against Estate” and “Return of Notice of Motion for Directions”, and granting $26,000 in costs to the respondent estate trustee and executrix, Janice Zealand. The order also required Ms. Appleyard to bring any claim in issued form against the estate within ninety calendar days after October 1, 2019, failing which she would be deemed to have abandoned any claim against the estate. She did not do so and did not seek a stay of the motion judge’s order.
[2] This appeal concerns the question of whether an alleged dependant should have an unlimited right to pursue claims and objections against an estate irrespective of procedural misconduct and delay that amount to an abuse of process.
[3] Peter Appleyard died in 2013. The administration of his estate is not completed. The administration of his estate by his named executrix and trustee, Janice Zealand (the “estate trustee”), has been delayed because of the myriad and failed objections, motions, and appeals brought by Ms. Appleyard. Ms. Appleyard is Mr. Appleyard’s former spouse and is not a beneficiary under Mr. Appleyard’s will. Although the three beneficiaries under Mr. Appleyard’s will have withdrawn any objections and have not objected to the passing of the estate trustee’s accounts by Ms. Zealand as estate trustee, nor to her removal from that position, Ms. Appleyard has persisted with her unsupported objections and allegations of misconduct against the estate trustee. She also pursues various claims, intertwined with her objections, which were already determined in previous divorce and bankruptcy proceedings, and, notwithstanding several directions from the court, has refused to bring her claim for dependant support and other relief in the requisite form nor provide the requisite evidentiary support so that it can be properly adjudicated.
[4] There comes a time in a proceeding when granting any further indulgences will only continue unnecessary delay and expense and threaten the orderly, efficient, and fair administration of justice. As I shall explain, that time has come. For the reasons that follow, I would dismiss the appeal.
BACKGROUND
[5] The present appeal is the latest stage in this long and complicated litigation involving the estate of the late Peter Appleyard who died with a will on July 17, 2013. It is only necessary to set out the steps in the various proceedings that are relevant to this appeal, including the divorce and bankruptcy proceedings that precede and inform the estate proceedings, as well as this appeal.
(i) Divorce proceedings
[6] The decree nisi order of Walsh J. was made on January 12, 1996 (“the divorce order”) and the decree absolute was signed on March 19, 1998. Under the divorce order, Walsh J. granted the parties a divorce, dealt with the calculation of the value of the parties’ net family properties, and determined that there was a $12,500 equalization payment required from Ms. Appleyard to Mr. Appleyard. He rejected Ms. Appleyard’s claim for past spousal support but awarded Ms. Appleyard ongoing spousal support in the monthly sum of $1,000.
[7] Walsh J.’s rejection of Ms. Appleyard’s claims for occupation rent, past spousal support, and an increased amount of ongoing monthly spousal support was largely based on his negative credibility findings against Ms. Appleyard, including two particular findings of “deliberate and outright fraud”, her failure to produce supporting documentation, and her depletion of the parties’ jointly-owned assets. He “found a great deal, if not most, of the wife’s evidence as to her actions and conduct after separation to be very troubling and extremely difficult to accept or understand.” He concluded that he was “totally unable to accept or rely upon [Ms. Appleyard’s] testimony”.
[8] Mr. and Ms. Appleyard shared two properties: a farm in Rockwood (the “Rockwood farm”) and a matrimonial home. Under the divorce order, the Rockwood farm and the matrimonial home were ordered “forthwith sold” and the net proceeds of sale were to be divided equally between Mr. and Ms. Appleyard. The divorce order also provided that the $12,500 equalization payment by Ms. Appleyard to Mr. Appleyard was to be paid out of Ms. Appleyard’s share of the sale proceeds.
[9] Ms. Appleyard appealed. On September 14, 1998, the Court of Appeal dismissed the appeal with costs to Mr. Appleyard (after making a small variation to the equalization payment to Mr. Appleyard, from $12,500 to $7,500), notably stating: “we think that this litigation has gone on far too long and must be brought to an end.”
(ii) Bankruptcy proceedings
[10] After a five-day trial before the Ontario Superior Court of Justice, on February 23, 2000, Sachs J. awarded Ms. Appleyard’s former lawyer in her divorce proceedings $91,760 for legal fees. Her appeal was dismissed with costs on August 16, 2001. Ms. Appleyard’s counsel petitioned her into bankruptcy as the majority creditor of the bankrupt estate after the fees had not been paid.
[11] Further to the trustee in bankruptcy’s motion, Ground J. released an endorsement on April 4, 2007, approving and allowing the sale by her trustee in bankruptcy of Ms. Appleyard’s interest in the Rockwood farm to Mr. Appleyard. As noted by Ground J. in his endorsement, Ms. Appleyard had advised the court office that she intended to request an adjournment of the hearing of the trustee’s motion and did not appear. Ms. Appleyard’s appeal from Ground J.’s decision was dismissed with $7,000 in costs by this court on January 11, 2008. The court noted that she attempted to raise the issue of occupation rent, which had not been raised below and was not the proper subject matter of the appeal.
[12] On June 5, 2008, C. Campbell J. authorized the trustee in bankruptcy to sell Ms. Appleyard’s right, title, and interest in certain assets. He awarded costs to the trustee in bankruptcy in the amount of $2,500. C. Campbell J. also ordered that Ms. Appleyard be prohibited from bringing any further or other proceedings or seeking any other relief without leave of this court until she complied with the costs order of $2,500 and all other costs orders outstanding against her relating to her bankrupt estate. It is not disputed that no appeal was taken from this order and that the costs remain unpaid.
[13] Ms. Appleyard has not yet been discharged from bankruptcy.
(iii) Estate proceedings
[14] By his will, Mr. Appleyard divided his estate between his common law spouse and his two children with Ms. Appleyard. He appointed the respondent, Janice Zealand, to administer the estate. Ms. Zealand appears to be a family friend. She received no benefit under Mr. Appleyard’s will.
[15] The estate litigation arose primarily because Mr. Appleyard made no provision in his will for the support of Ms. Appleyard, and she claimed an ongoing entitlement to spousal support, which claim is disputed. Mr. Appleyard had paid the court-ordered spousal support to Ms. Appleyard until his death. The estate has not continued payment of support to Ms. Appleyard. According to the record, Ms. Appleyard put the estate on notice of her unspecified “claims” against the estate by letter dated July 24, 2013, and of her claim for continued spousal support by letter dated July 31, 2013.
(a) Ms. Appleyard’s First Notice of Objection
[16] The estate trustee applied for a certificate for the appointment of estate trustee with a will on August 23, 2013 (“appointment application”). Ms. Appleyard delivered her first notice of objection to the estate trustee’s appointment application, dated September 5, 2013. She did not challenge the validity of the will. However, she objected to the issuance of a certificate of appointment because she claimed that the estate trustee, having been made aware of Ms. Appleyard’s “claims against the Estate pursuant to the Family Law Act, R.S.O. 1990, c. F.3, and pursuant to Dependant’s Relief under the Succession Law Reform Act, R.S.O. 1990, c. S.26, has failed to acknowledge [Ms. Appleyard’s] lawful rights by her failure to continue support payments to [Ms. Appleyard] as ordered by the Court in a Decree Nisi dated January 12, 1996.” Ms. Appleyard went on to describe her claims against her former husband’s estate:
The nature of my interest in the estate is: I am the former legal wife of the late Peter Appleyard. My former husband was aware of his legal obligation to arrange for support payments to continue to be made if he should predecease me.
In addition to my rights pursuant to the Family Law Act, R.S.O. 1990, c. F.3, and the Succession Law Reform Act, R.S.O. 1990, c. S.26, I have a right to claim compensation or the return of property owned by me that was in the possession of my former husband Peter Appleyard at the time of his death. The claims set out above and other claims will be set out in a Claim Against Estate to be served in due course.
[17] Following an attendance before Murray J. on December 19, 2013, Ms. Appleyard withdrew her first objection on consent, ostensibly to commence an application for dependant support, as indicated in her discussions with Murray J. on the record.
(b) Ms. Appleyard’s Second Notice of Objection
[18] However, Ms. Appleyard did not commence an application for dependant support under the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”) or any other claim. Instead, she delivered a second notice of objection to the estate trustee’s appointment application, dated May 24, 2016. Her second notice of objection tied various allegations of impropriety against the estate trustee to her claims against the estate with respect to the Rockwood property and for support. She provided the additional particulars underlined below:
The nature of my interest in the Estate is: I am the former wife of the late Peter Appleyard. I have an interest in the value of the Estate as a consequence of my financial investment in the Rockwood property , and the fact that the Estate has an obligation to continue court-ordered spousal support payments pursuant to The Family Law Act, R.S.O. 1990, c. F.3, and The Succession Law Reform Act R.S.O., 1990. I have a right to compensation or the return of valuable items owned by me, in the possession of my former husband at the time of his death. [Emphasis added.]
[19] By the order of Gibson J. dated May 11, 2016, the estate trustee was authorized, among other things, to sell the Rockwood farm and to take other steps to administer the estate and distribute its assets.
(c) Ms. Appleyard’s “Claim Against Estate”
[20] On September 10, 2016, Ms. Appleyard served the estate with a document entitled “Claim Against Estate”, purportedly under rule 75.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Claim”). This document is not in the form of an issued notice of action or statement of claim but appears to be the top part of an affidavit sworn by Ms. Appleyard on September 7, 2016, in which she deposes: “The grounds set out in this claim are true.” Ms. Appleyard’s Claim was assigned court file no. 607/13, the same court file number as the estate trustee’s appointment application.
[21] The estate trustee did not pursue her appointment application because it was not necessary for her to do so in order to carry out her mandate as estate trustee. There was no dispute that the will under which she was acting was valid, and the May 11, 2016 court order and subsequent court orders, including those described below, allowed her to administer the estate and distribute its assets.
[22] In paragraph 1 of the Claim , Ms. Appleyard seeks damages of $980,000 for:
i. arrears of support payments in the amount of $54,000 pursuant to the divorce order, or, in the alternative, pursuant to the Succession Law Reform Act, Part 5; ii. future spousal support in the amount of $350,000, pursuant to the divorce order, or in the alternative, pursuant to the Succession Law Reform Act, Part 5; iii. unjust enrichment in the minimum amount of $575,000; iv. compensation for or the return of her personal property that she says was in the possession of Mr. Appleyard at the time of his death; v. unspecified “compensatory” and other damages.
[23] As indicated in the body of the Claim , Ms. Appleyard’s claim for unjust enrichment largely relates to the Rockwood farm. According to Ms. Appleyard, the Rockwood farm was not “forthwith sold”, as required under the divorce order, but was sold only after Mr. Appleyard’s death. She therefore claims a share of the proceeds. She also made allegations of improvident sale of the Rockwood farm against the estate trustee. Importantly, her Claim makes no reference to the sale of her interest in the Rockwood farm in her bankruptcy proceedings.
[24] In response to Ms. Appleyard’s Claim , the estate’s lawyer advised her by letter dated September 15, 2016, that it was not a proper claim under the rules and that the estate would rely on the Limitations Act, 2002, S.O. 2002, c. 24.
[25] On March 15, 2017, pursuant to the estate trustee’s motion, Fitzpatrick J. ordered that Ms. Appleyard was precluded from bringing any further motions without leave of the court in accordance with C. Campbell J.’s 2008 order. Fitzpatrick J. ordered costs of $18,000 against Ms. Appleyard. Ms. Appleyard did not appear, even though the motion date was made peremptory on her, she had been granted nearly three months of adjournments, and she had been refused a further adjournment.
[26] On August 1, 2017, Woollcombe J. dismissed Ms. Appleyard’s motion to set aside Fitzpatrick J.’s March 15, 2017 order. The motion judge ordered costs of $5,000 to be paid by Ms. Appleyard within 30 days, failing which all of Ms. Appleyard’s claims against the estate would be dismissed and the estate trustee would be at liberty to continue to administer the estate as set out in the draft order. It is not disputed that the $5,000 costs order has not been paid.
(d) The estate trustee’s applications for the passing of accounts and removal
[27] The estate trustee did not take any further steps under the appointment application. On May 30, 2018, the estate trustee commenced an application to pass her accounts. She also brought an application for her removal as estate trustee. Both of those applications were returnable on August 1, 2018. Ms. Appleyard served a notice of objection to the estate trustee’s accounts on June 27, 2018, again tying her objections to her claims.
[28] On August 1, 2018, Miller J. gave two orders for directions. Among other things, she directed that “Jo Anne Appleyard shall be entitled to participate in the Application to Pass Accounts as a potential creditor of the Estate”, and that the estate trustee’s application to pass her accounts would be consolidated with her application seeking her removal as estate trustee, with the issues determined together, or as the pre-trial and or trial judge may direct. She set out a timetable for the delivery of any affidavits by October 12, 2018 in support of objections and in response to the removal application by the estate trustee by the respondent beneficiary, Susan Appleyard, and Ms. Appleyard. She also ordered a list of the issues for trial. With the exception of Ms. Appleyard’s objection that the applications were premature because of her outstanding claims, the trial issues consisted of the objections by Susan Appleyard related to the estate trustee’s entitlement to compensation, the reasonableness of the legal expenses incurred by the estate trustee, and the realization of all US source income. Finally, Miller J. provided for further mediation, including Ms. Appleyard’s claims. While the mediation subsequently took place, it did not resolve the litigation.
[29] By June 7, 2019, all beneficiary objections to the estate trustee’s accounts or administration were withdrawn. There have been no objections by the beneficiaries to judgment in the application to pass accounts nor have they opposed the application by the estate trustee to be removed.
(e) Order of the Court of Appeal
[30] Ms. Appleyard appealed the earlier noted orders of Fitzpatrick J. and Woollcombe J. to the Court of Appeal. On January 4, 2019, this court allowed the appeal from the March 15, 2017 order of Fitzpatrick J. requiring Ms. Appleyard to seek leave of the court before advancing any claims against Mr. Appleyard’s estate. The court dismissed Ms. Appleyard’s appeal from the August 1, 2017 order of Woollcombe J. that dismissed Ms. Appleyard’s motion for directions and ordered Ms. Appleyard to pay the estate trustee costs of $5,000, failing which all her claims would be dismissed.
[31] This court explained in its reasons: “[A]s [Woollcombe J.] correctly observed, in the light of the several prior adjournments at her request, the appellant took a calculated risk in failing to appear and requesting a further adjournment of a peremptory motion date for reasons that Fitzpatrick J. was entitled to reject as insufficient to excuse her absence”: Appleyard v. Zealand, 2019 ONCA 4, at para. 5.
[32] The court made the following order at para. 11:
Given the significant and protracted delay and incurrence of costs to-date in the estate proceedings, in our view, it is in the best interests of all parties to allow the appeal on terms that will serve to expedite the estate proceedings. Accordingly, we exercise our discretion under s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and make the following order:
Failing agreement, within 30 days of the release of these reasons, the estate trustee shall bring a motion for directions before a judge of the Superior Court to establish a timetable for the administration of the estate, including such steps as may be appropriate for the timely determination of the appellant’s claims.
[Emphasis added.]
(f) Administrative Dismissal of Ms. Appleyard’s claims against the Estate and aftermath
[33] On January 4, 2019, the Registrar of the Superior Court of Justice administratively dismissed for delay court file no. 607/13, which was the estate trustee’s appointment application that was never pursued.
[34] As earlier noted, court file no. 607/13 had also been assigned to Ms. Appleyard’s Claim , although the Claim had never been issued. As also noted above, in her unissued Claim, Ms. Appleyard sought damages for various claims including arrears in spousal support, ongoing spousal support, unjust enrichment related to real property, and loss of personal property.
[35] On January 30, 2019, the estate trustee brought a motion for directions pursuant to this court’s January 4, 2019 direction, seeking an order that Ms. Appleyard be required to bring any claim that she wished to advance in the proper form. As a cross-motion, Ms. Appleyard delivered a “Return of Notice of Motion for Directions”, dated January 25, 2019, under the administratively dismissed court file 607/13. In her notice, Ms. Appleyard claimed an interim order for arrears of spousal support, an order that the balance of funds from “the improvident sale” of the Rockwood farm be paid into court, and that she be added as a party to these proceedings. She also raised an unissued claim against the estate under s. 44 of the Estates Act, R.S.O. 1990, c. E.21.
[36] On June 11, 2019, at Ms. Appleyard’s request, so that she could retain counsel, the two motions were adjourned by Bloom J. and made peremptory against her.
[37] In September 2019, Ms. Appleyard and the estate trustee attended a pre-trial conference before Bielby J. The purpose was to set out the parameters for the trial to deal with the estate trustee’s application to pass accounts in the face of Ms. Appleyard’s objections and the estate trustee’s request to be removed as estate trustee.
(g) Order of Conlan J. under appeal
[38] The motions were heard before Conlan J. on October 1, 2019, with reasons delivered on October 2, 2019. As a preliminary issue, he denied Ms. Appleyard’s last-minute request for an adjournment in order to retain counsel.
[39] The motion judge dismissed Ms. Appleyard’s Claim , without prejudice to her asserting her Claim in proper form as specified in his order (reproduced below). He dismissed her Return of Notice of Motion for Directions without the same qualification. The motion judge noted that for various reasons, including the administrative dismissal, Ms. Appleyard in fact had no extant claims. He characterized her principal substantive claims as all relating to her claim for spousal support and stated that she was required to advance a claim for dependant support by way of an application under s. 58 of the SLRA and that she could raise any other claims under that application. He noted that her procedural claims were all moot. For example, her request to be added as a party had already been accomplished by the August 1, 2018 order of Miller J. He awarded costs of $26,000 to the estate trustee against Ms. Appleyard.
[40] In response to the Court of Appeal’s January 4, 2019 order, the motion judge’s order included the following timetable:
THIS COURT ORDERS that the “Claim Against Estate” (found at page 75 of the bound document filed by [Ms. Appleyard] titled Affidavit of Jo Anne Appleyard in Support of Objections and in Response to the Removal Application Record) is hereby dismissed, subject to paragraph 3.
THIS COURT ORDERS that any application by [Ms. Appleyard] under the Succession Law Reform Act shall be issued within ninety (90) calendar days of October 1, 2019. Failing that it shall be deemed that [Ms. Appleyard] abandons any and all claims that she may have against the Estate (other than her objections that have been filed in the context of the current consolidated Application out of Milton). [Emphasis added.]
(h) Ms. Appleyard’s appeal from Conlan J.’s order
[41] Ms. Appleyard did not commence an application within the ninety-day deadline ordered by Conlan J. She launched her appeal from Conlan J.’s order on November 1, 2019 but did not seek a stay of his order. Ms. Appleyard was granted repeated time extensions to perfect her appeal. She did not perfect her appeal until July 16, 2021.
ISSUES
[42] I would summarize the issues pursued on appeal as follows. In summary, Ms. Appleyard submits that the motion judge erred by failing to set aside and relying upon the administrative dismissal of her claims, dismissing the unissued claims she advanced on the motion before him, and requiring her to file an application for dependant support within ninety days of October 1, 2019, which she argues truncated the time for bringing such a claim under s. 61(1) of the SLRA.
[43] As I shall explain, I am not persuaded that the motion judge made any reversible error.
Analysis
(a) Did the motion judge err in dismissing Ms. Appleyard’s claims without prejudice to filing them in proper form within ninety days of October 1, 2019?
(i) Preliminary issue: motion for fresh evidence
[44] At the commencement of the hearing of this appeal, Ms. Appleyard requested through her counsel an adjournment to permit her to bring a motion to file fresh evidence concerning the January 4, 2019 administrative dismissal of her claims. The request for adjournment was denied by the panel because there was no basis to allow the last-minute request. Ms. Appleyard had had ample notice of the date of this appeal and could have initiated her motion well in advance. Moreover, there was no indication then of the further materials that Ms. Appleyard sought to file, nor that they would have affected the outcome of this appeal.
[45] Following the hearing of the appeal but prior to the release of these reasons, Ms. Appleyard renewed her request for leave to admit fresh evidence relating to the administrative dismissal of her claims. Her counsel provided by email a copy of a letter dated June 15, 2022 from Livia Sessions, Manager, Business Support, of the Ministry of the Attorney General, Court Services Division, Central West Region, in response to a communication from Ms. Appleyard. In the letter, Ms. Sessions advised that the administrative dismissal timeline was triggered in relation to an unconfirmed motion scheduled for November 28, 2016, and that “proceedings commenced in this manner are not generally subject to dismissal timelines under rule 48.14 [administrative dismissal of actions] of the Rules of Civil Procedure”. She further advised that:
We have not identified a reason for the dismissal timeline to have been triggered in this instance and therefore it appears to have been triggered in error. We regret any inconvenience this may have caused. You may wish to review the Rules of Civil Procedure, in particular Rules 48 and 37, for options that may be available in these circumstances.
[46] Counsel for the estate trustee did not object to the panel considering Ms. Sessions’ letter.
[47] Accordingly, the panel requested that the parties provide any further written submissions concerning the effect, if any, of Ms. Sessions’ letter on the motion judge’s decision under appeal and the outcome of the appeal. We have received and reviewed those submissions. For the reasons that follow, I am of the view that Ms. Sessions’ letter has no effect on the correctness or reasonableness of the motion judge’s decision nor on the outcome of this appeal.
(ii) The motion judge did not err in dismissing Ms. Appleyard’s claims
[48] In my view, the motion judge made no reversible error in his disposition of Ms. Appleyard’s claims. His disposition does not depend on the administrative dismissal of her claims. Even apart from the administrative dismissal, as the motion judge correctly noted, Ms. Appleyard had no extant property or support claims – they were moot, dismissed, or procedurally untenable. I say this for the following reasons:
i. As earlier noted, Ms. Appleyard’s property claims (including those later asserted under the auspices of an unjust enrichment claim) had already been finally determined in the divorce and/or the bankruptcy proceedings. In the divorce proceedings, it is clear from his reasons that in calculating the parties’ net family properties and the equalization payment that he ordered, Walsh J. determined the parties’ respective assets, including both their personal and real property, at the valuation date. The Rockwood farm was ordered sold and the proceeds divided between Mr. and Mrs. Appleyard. The order further required the deduction of the equalization payment owed by Ms. Appleyard to Mr. Appleyard from her share of the proceeds. In the bankruptcy proceedings, the court approved the sale of Ms. Appleyard’s interest in the Rockwood farm to Mr. Appleyard by Ms. Appleyard’s trustee in bankruptcy. This court rejected her subsequent appeal. By 2008, all of the property claims that Ms. Appleyard seeks to assert had been finally disposed of. ii. Ms. Appleyard had been allowed to participate as a potential creditor in the application brought by the estate trustee to pass the estate’s accounts by the August 1, 2018 order of Miller J. iii. The administrative dismissal was really of no practical effect because none of Ms. Appleyard’s proposed claims had been issued or commenced in a form that could be litigated and therefore were never extant. These included the claims set out in her unissued Claim and her proposed unissued claim under ss. 44 and 45 of the Estates Act that she raised for the first time in her Return of Notice of Motion. The latter unissued claim was not in the correct form for a dependant’s support claim under s. 58 of the SLRA or any other claim. Moreover, sections 44 and 45 of the Estates Act have no application to her claim for dependant support which arises out of her relationship as a former spouse: Omiciuolo v. Pasco, 2008 ONCA 241, at para. 24. iv. Ms. Appleyard’s failure to pay the costs order required by the August 1, 2017 order of Woollcombe J. justified the dismissal of her claims.
[49] Moreover, I agree with the estate trustee’s submissions that Ms. Appleyard’s conduct of the proceedings is vexatious and amounts to an abuse of process that justifies the dismissal of her proposed claims.
[50] The re-litigation of matters already and finally determined, the pursuit of unmeritorious claims or arguments, the failure to comply with procedural rules and court orders (including filing out of time and failure to satisfy costs awards), and the unnecessary incurrence of delay and expense, are all hallmarks of vexatiously conducted proceedings amounting to an abuse of process: BMO Trust Company v. Childs, 2020 ONCA 21, at paras. 2-4; Hoang v. Mann Engineering Ltd., 2021 ONCA 742, at paras. 8-13; Marché D’Alimenation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, at para. 24; Mascan Corp. , at p. 7; see also: “A Survey of Abuse of Process”, Paul M. Perell, 2007 Archibald-AnnRevCivil [I].
[51] Those hallmarks are clearly reflected in Ms. Appleyard’s conduct in these proceedings. Ms. Appleyard’s vexatious conduct has included causing extensive delays, failing to meet deadlines, including those peremptory to her, her dogged pursuit of unissued claims and claims that had already been finally determined, the absence of any cogent evidentiary foundation for her proposed claims, and her failure to pay outstanding costs awards: see Mascan Corp. v. French (1988), 64 O.R. (2d) 1 (C.A.), at p. 7. These include, importantly, her failure to pay the $5,000 costs award under Woollcombe J.’s August 1, 2017 order, which should have resulted in the dismissal of all her claims and objections.
(iii) The motion judge did not err in the exercise of his case management powers
[52] Nor do I see any error in the motion judge’s exercise of his discretion in his case management of the proceedings to avoid the continuing abuse of the court’s processes due to Ms. Appleyard’s vexatious conduct. The excessive and unnecessary delay in these proceedings led to this court’s January 4, 2019 direction, under s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, that a timetable for the timely administration of this estate be established. The motion judge made his order in accordance with that direction.
[53] Setting a timetable is entirely within a case management judge’s discretion: Teitler v. Dale, 2021 ONCA 577, at para. 24. I see no error in the exercise of that discretion. His timetable achieved the court-ordered objective of bringing to an end the years of unnecessary and expensive litigation ongoing since Mr. Appleyard’s death in 2013. It equitably balanced the parties’ respective interests, including those of the beneficiaries whose inheritance has been eroded as a result of Ms. Appleyard’s vexatious conduct of these proceedings.
[54] Ms. Appleyard alleges that it was improper for the motion judge to order her to bring any claims within ninety days of October 1, 2019 because it shortened the six-month limitation period under s. 61(1) of the SLRA to bring a dependant support claim under s. 58.
[55] I would not accede to this argument. Whether or not any limitation period has or has not expired is not the issue in this case and is irrelevant because of Ms. Appleyard’s vexatious conduct that amounts to an abuse of process. Litigants cannot indefinitely hold the court process hostage. What is in issue here is the reasonableness of the exercise of the motion judge’s inherent power to control and foreclose Ms. Appleyard’s ongoing abuse of the court’s process to which considerable deference is owed on appeal, absent reversible error. I see none here.
[56] Ninety days was one last grace period by the court allowing Ms. Appleyard to bring her claims for dependant support and other relief in the requisite form so they could be properly adjudicated. To hold otherwise would ignore the belaboured procedural history of this proceeding beginning when she gave notice of her proposed claims to the estate trustee in July 2013. What has followed is an odyssey of court proceedings where, despite direction from the court as early as December 19, 2013, Ms. Appleyard has failed to bring her dependant support claim or any other claim in proper form or to support her proposed claims with any cogent evidence.
[57] Nor is this a case of form over substance, as Ms. Appleyard submits. It was necessary for Ms. Appleyard to bring her claims for dependant support and other relief in the requisite form so that it could be properly adjudicated. As is apparent from my earlier narrative of the proceedings, while loosely focussed on property and support issues, Ms. Appleyard’s various claims have shifted over the years, unsupported by any cogent evidentiary foundation. In the circumstances of this case, without the procedural rigour imposed by the form of an issued application, the estate trustee did not know the case the estate had to meet nor was she in a position to respond in any meaningful way. This has been tremendously unjust to the estate trustee and the beneficiaries and has resulted in egregious delay and expense. The fair and effective administration of justice required Ms. Appleyard to put forward her claims in a timely and coherent manner in accordance with the SLRA and the Rules of Civil Procedure.
[58] The motion judge made no error in requiring Ms. Appleyard to advance her application for dependant support including any other claim within ninety days following October 1, 2019, in order to comply with this court’s January 4, 2019 direction and prevent further abuse of the court’s process by the vexatious manner in which she has conducted herself in these proceedings.
[59] The court has a broad discretion to control its process and to make appropriate orders where, as is the case here, proceedings have been conducted in a vexatious manner that amounts to an abuse of process: Peoples Trust Company v. Atlas, 2019 ONCA 359, at paras. 5, 9. The court’s inherent and statutory powers to prevent an abuse of process are necessary to uphold the proper administration of the judicial system. As Blair J.A. stated (in dissent but not on this point), at para. 55, in Foy v. Foy (No. 2), [1979] O.J. No. 4386, (1979) 26 O.R. (2d) 220 (C.A.), leave to appeal refused, [1979] 2 S.C.R. vii:
The concept of abuse of process protects the public interest in the integrity and fairness of the judicial system. It does so by preventing the employment of judicial proceedings for purposes which the law regards as improper. These improper purposes include harassment and oppression of other parties by multifarious proceedings which are brought for purposes other than the assertion or defence of a litigant’s legitimate rights. Such abuse of process interferes with the business of the Courts and tarnishes the image of the administration of justice.
[60] Acceding to Ms. Appleyard’s argument would permit her to endlessly re-litigate issues and delay these proceedings. Again, that, in my view, would amount to a clear abuse of process. As Lauwers J.A. said in Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671, at para. 22: “[T]here comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay.” While this statement was made in the context of an appeal from a dismissal of an action for delay, its underlying rationale that the integrity of the civil justice system and trial fairness preclude a litigant from inordinately delaying her claim by failing to comply with procedure, directions and court orders applies here. This is particularly apposite in estate proceedings where the expeditious administration of an estate is in the interests of justice: Omiciuolo v. Pasco, 2008 ONCA 241, at para. 25; Euring Estate v. Registrar of the Ontario Court (1997), 31 O.R. (3d) 777 (C.A.), at p. 792.
[61] As a result, there was nothing unfair or incorrect in the motion judge’s order that Ms. Appleyard bring any application for dependant support and other relief within ninety days of October 1, 2019. Ms. Appleyard’s claim for dependant support falls squarely within the provisions of s. 58(1) of the SLRA, which provides that “Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.” Moreover, Ms. Appleyard has known since 2013 that she must assert a claim for dependant support by way of an application under the SLRA. She has steadfastly and inexplicably refused to do so, notwithstanding the generous extensions of time and opportunities that have been granted to her.
[62] I do not accept Ms. Appleyard’s argument that it was unnecessary for her to bring a separate application for dependant support because she was entitled to support under the divorce order that continued to bind the estate.
[63] It is by no means certain that the support provisions of the divorce order continued to bind the estate. The support provisions would only bind the estate if made under the Family Law Act, R.S.O 1990, C.F3, per s. 34(4); or, if they were made under the Divorce Act, they expressly provided that they bind the estate: Katz v. Katz, 2014 ONCA 606, at paras. 71-72. However, Ms. Appleyard brought her claim for support under the Divorce Act; and only in the alternative under the Family Law Act. The divorce order did not state that support was granted under the Family Law Act, as it did in relation to other heads of relief, nor did it provide that the support provisions would bind the estate. Where there is ambiguity as to whether an order was made pursuant to the Divorce Act or the Family Law Act, the doctrine of paramountcy will generally give rise to a presumption that the order was made under federal legislation: see Yu v. Jordan, 2012 BCCA 367, at para. 51; Cheng v. Liu, 2017 ONCA 104, at paras. 48-49.
[64] In any event, is not necessary to decide this issue because it is irrelevant for the disposition of this appeal. As earlier noted, Ms. Appleyard’s claim for support under the divorce order (and under the SLRA) was never commenced in the proper form nor did she provide cogent evidence to permit its adjudication. And, for the reasons that I have just explained, Ms. Appleyard’s vexatious conduct justified the dismissal of her proposed claims.
[65] In summary, Ms. Appleyard has taken myriad steps, brought numerous property and support claims, and raised countless allegations and objections against the estate over the years, except commencing a proper application for dependant support, including any other claims she wished to assert. The motion judge’s order required her to do so within ninety days of October 1, 2019, failing which she would be deemed to have abandoned any claim against the estate. This non-monetary part of the motion judge’s order was not stayed by the appeal nor was a stay sought. As a result, Ms. Appleyard was required to comply with it. She did not do so. Accordingly, any claims she may have had against the estate are deemed abandoned and are therefore dismissed.
(b) Should this court exercise its discretion and extend the time in the motion judge’s order for Ms. Appleyard to commence an application for dependant support under the SLRA or any other claim?
[66] As the estate trustee submitted, Conlan J.’s order is now spent. She urged this court not to exercise its discretion under s. 134 of the Courts of Justice Act to grant any further extension and submitted that the equities favour the beneficiaries, including Mr. Appleyard’s 88-year-old common law spouse, who are left with diminished estate assets because of Ms. Appleyard’s incessant and unsuccessful litigation and failure to satisfy multiple costs orders.
[67] I agree with the estate trustee’s position. In my view, there is no principled reason to justify granting a further extension of time to Ms. Appleyard to bring her application for dependant support or any other claim. As Gillese J.A. recently reminded in 828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412, at paras. 35-37, sometimes because of a party’s long history of procedural misconduct and the resulting prejudice to the responding party, “[t]he integrity of the civil justice process demands that this proceeding end now.” That is this case.
[68] As the detailed chronology in these reasons amply demonstrates, Ms. Appleyard has inexcusably delayed for almost nine years the orderly administration of a very simple estate and has depleted the estate’s assets with the unnecessary expense of her many motions, appeals, and objections. She has failed to satisfy costs orders, and I note again that her failure to comply with Woollcombe J.’s August 1, 2017 order should have resulted in the dismissal of her claims. She has failed to support her claims and allegations with cogent evidence and has steadfastly refused to bring her claim for dependant support or other relief in the proper form despite being given numerous opportunities to do so. As the record stands, there is no cogent evidence that Ms. Appleyard is currently in need of support. As Walsh J. found in 1996 and as continues here, Ms. Appleyard has not put forward any acceptable evidence of what income she actually receives, including “no tax returns, no bank records of any kind…and no reconciliation of how, when and where all of these funds which came into her hands were disbursed”.
[69] In my view, given the history of these proceedings, it is a fair inference that even if granted a further extension, it is unlikely that Ms. Appleyard would proceed with her claims in an expeditious manner, if at all.
[70] Any further delay of the estate administration would be grossly unfair to the beneficiaries and the estate trustee. No one has ever questioned the validity of the will. But for Ms. Appleyard’s unsubstantiated objections about the estate trustee’s accounts, which she has tied into her claims, the estate trustee’s work would be done. The beneficiaries do not object to the passing of her accounts and removal of Ms. Zealand as estate trustee.
[71] I would therefore not grant any further extensions of time to Ms. Appleyard to commence any further claims. As a result, Ms. Appleyard’s claims against the estate are at an end.
[72] Ms. Appleyard’s right to participate in the consolidated proceedings based on her claims is also at an end. Pursuant to Miller J.’s August 1, 2018 order that I earlier referenced, Ms. Appleyard’s entitlement to participate at all in the consolidated applications was permitted only as a potential creditor of the estate. Since her claims against the estate have been dismissed, she no longer has a potential financial interest in the estate and her standing to participate in the consolidated applications has therefore also disappeared.
[73] It is unclear whether any objections Conlan J. sought to exempt in paragraph 3 of his order are not tied to Ms. Appleyard’s dismissed claims. To the extent Ms Appleyard may still seek to raise any objections that are not intertwined with her dismissed claims, it is also unclear on what basis Ms. Appleyard would have any standing to pursue them because she no longer has any financial interest in the estate. Any objections regarding the estate trustee’s accounts that might prevail will enure only to the benefit of the beneficiaries. Accordingly, if Ms. Appleyard still seeks to raise objections at the trial, the estate trustee is at liberty to bring a motion before trial or request the trial judge at the beginning of the trial of the consolidated applications to determine whether Ms. Appleyard has any standing to pursue any such objections.
[74] The estate trustee has requested an order, in any event, that Ms. Appleyard be precluded from participating further in these proceedings unless she pays all outstanding costs orders. The estate trustee calculates the outstanding costs orders, including Conlan J.’s costs order, to amount to $51,500. In my view, given Ms. Appleyard’s vexatious conduct in these proceedings that I have earlier described, which includes the failure to pay several costs orders, such an order is reasonable and justified in the circumstances of this case.
DISPOSITION
[75] For these reasons, I would dismiss the appeal.
[76] The estate trustee is entitled to costs from Ms. Appleyard, payable forthwith, in the amount of $15,000, inclusive of disbursements and applicable taxes.
[77] Any claims that Ms. Appleyard may have had against the estate are dismissed. To the extent that Ms. Appleyard seeks to raise any objections remaining that are not intertwined with her dismissed claims, the estate trustee may bring a motion before trial or before the trial judge to determine whether Ms. Appleyard has standing to pursue any such objections.
[78] In any event, Ms. Appleyard must pay all outstanding costs orders, including the costs of this appeal, within 30 days of the release of these reasons, failing which she may no longer participate in or be entitled to further notice of any step in these proceedings, including the trial of the consolidated applications.
[79] If she satisfies the costs orders within the deadline required by these reasons, Ms. Appleyard’s participation in the trial of the consolidated applications is further conditional on a court’s determination that she has standing to assert any objections. She cannot assert any claims.
Released: August 4, 2022 Roberts J.A. K. Feldman J.A. L. Favreau J.A.