Court of Appeal for Ontario

Date: 20240221 Docket: COA-23-CV-0195

Tulloch C.J.O., Hourigan and Zarnett JJ.A.

Between

Elizabeth Ann Buffone Applicant (Respondent)

and

Barbara Sokil in her capacity as executrix for the Estate of Eleanor Bobbie, deceased, and in her personal capacity* and William M. Sokil Respondents (Appellant*)

Barbara Lynn Sokil, acting in person Christopher Salazar, for the respondent BMO Trust Company Jonathan Friedman, for the respondent Elizabeth Ann Buffone William Sokil, acting in person

Heard and released orally: February 20, 2024

On appeal from the order of Justice Cory A. Gilmore of the Superior Court of Justice, dated February 17, 2023.

Reasons for Decision

[1] This is an appeal from a contempt order and a costs order in an estate proceeding. The appellant, Barbara Sokil was named as alternate executor of the estate of her deceased aunt, Eleanor Bobbie (the “Estate”). The appellant and the respondents Elizabeth Buffone and William Sokil are equal beneficiaries of the Estate pursuant to Part II of the Succession Law Reform Act, R.S.O. 1990, c. S.26. The Estate included a residential property.

[2] In an order dated December 13, 2022 (“the Cavanagh Order”), Cavanagh J. appointed BMO Trust Company as the Estate Trustee During Litigation (“ETDL”). The Cavanagh Order included the following terms: (i) the appellant was to grant the ETDL access to the property; (ii) the ETDL was granted leave to issue a writ of possession with respect to the property; and (iii) the appellant was ordered to produce to the ETDL all documents related to the estate and estate funds.

[3] The ETDL brought a motion for a finding of contempt against the appellant for her alleged failure to comply with the Cavanagh Order and an order validating alternative service by email/courier of the contempt motion record. It also sought an order for immediate possession of the property. The motion judge found the appellant in contempt but the only punishment for the contempt she ordered was to advance the date on which the appellant was to vacate the Estate property. She also ordered that the appellant pay costs of the motion to the ETDL in the amount of $18,000 and that this sum be paid directly from her portion of the Estate upon any distribution.

[4] The appellant sought an adjournment of the appeal. She was previously granted an unopposed adjournment of the appeal, but the ETDL and Mr. Sokil oppose any further adjournment. The appellant did not attend at the hearing of the appeal. Her request for an adjournment is unsupported by any sworn evidence and strikes as a further attempt to simply delay the determination of her appeal. For these reasons, we denied the request for an adjournment.

[5] We agree with the submission of counsel for the ETDL that the appeal is largely moot as the property has been sold. In any event, regarding the merits of the appeal, we see no basis for interfering with the motion judge’s order for substituted service or her finding of contempt, which were well supported by the evidence.

[6] The appellant requires leave to appeal the costs award. Leave to appeal a costs order will not be granted except in obvious cases where the party seeking leave convinces the court there are “strong grounds upon which the appellate court could find that the judge erred in exercising his discretion”: Brad-Jay Investments Limited v. Village Developments Limited (2006), , 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92. We are not satisfied that the appellant has met her onus, as we see no error in the trial judge’s awarding of costs.

[7] The appeal is dismissed. The appellant shall pay ETDL its costs of the appeal on a partial indemnity basis in the all-inclusive sum of $8,492.44. These costs shall be paid directly from the appellant’s share of the Estate. This costs award is without prejudice to any claims that Mr. Sokil and Ms. Buffone may make against the appellant in the estate proceeding for costs she has caused the Estate to incur.

“M. Tulloch C.J.O.”

“C.W. Hourigan J.A.”

“B. Zarnett J.A.”