Court of Appeal for Ontario
COURT OF APPEAL FOR ONTARIO DATE: 20241108 DOCKET: COA-24-OM-0322 Wilson J.A. (Motion Judge)
In the Matter of the Estate of Elenita Burre Mahilum, also known as Nita B. Mahilum, deceased
BETWEEN
Eduardo Mahilum and Erwin Mahilum Moving Parties
and
Caroline Consentino (née Mahilum), Edgar Mahilum and Enrique Mahilum Responding Parties
Counsel: Fred M. Tonelli, for the moving party Shruthi Raman and Kavina Nagrani, appearing on behalf of Caroline Cosentino Mahi Noor Khalid, on behalf of the Estate of Elenita Burre Mahilum
Heard: November 1, 2024
Endorsement
Introduction
[1] This motion seeks an extension of time to file a notice of appeal. The underlying application concerns the estate of the late Elenita Burre Mahilum. The deceased had six children: five sons and one daughter, Caroline. In 2021, Caroline commenced an application due to concerns about the manner in which her brother Eduardo was dealing with their mother’s estate. Her position was that Eduardo submitted a fraudulent will to the court to be appointed as estate trustee.
Procedural History
[2] On October 19, 2021, the court appointed an Estate Trustee during Litigation (“estate trustee”). The estate trustee attended to various matters arising from the estate, including the sale of the deceased’s home. There was a court order for the listing of the property for sale. Eduardo and Elberto refused to move out of the house, and on November 25, 2021, the court issued a further order authorizing the sheriff and police to enforce the prior order directing the sale of the house.
[3] In July 2023, the estate trustee served a motion for directions to deal with the final matters in the administration of the estate. The motion was initially returnable on October 12, 2023. Eduardo attended the motion and requested an adjournment on behalf of himself and his brother, Erwin, so they could obtain counsel. The motion was adjourned and marked peremptory on the respondents. Timelines were set for filing materials.
[4] On January 9, 2024, the motion date was fixed for February 21, 2024 - a date that was agreed upon by all counsel and parties. That date did not proceed because the estate trustee had not filed a factum. A new date was set for the motion for March 20, 2024. Eduardo and Erwin filed some materials in response to the motion but did not file affidavit evidence.
[5] On March 20, 2024, Mr. Tonelli, solicitor for the moving parties, attended court and requested an adjournment of the motion on the basis he had just been retained. There was no material filed in support of the request for the adjournment of the motion, which had been marked peremptory. The motion judge dismissed the adjournment request, noting there had been no explanation by Eduardo and Erwin for their delay in retaining counsel for a motion they had been aware of for eight months. The motion proceeded and the decision was released on July 23, 2024.
[6] On August 23, 2024, the moving parties served their notice of appeal on the respondents, except for Elberto. Pursuant to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the materials for the appeal were to be filed by August 22, 2024. As a result, the Court of Appeal rejected the filing. Eduardo and Erwin then served this motion to extend the time to serve and file the appeal.
[7] The motion was allegedly served on the parties and the estate trustee as of September 26, 2024. However, Mr. Tonelli acknowledged that he did not serve Elberto because he did not know where to find him. In addition, the motion was never properly served on counsel for the estate trustee because Mr. Tonelli made an error in her email address, which he failed to correct. Counsel for the estate trustee received a copy of the motion record from the respondent’s counsel. Counsel for the estate trustee advised that she was ready to deal with the motion to avoid further delay.
[8] Caroline also brings a cross-motion to quash the appeal. Alternatively, if the time to file the appeal is extended, she brings a motion for an order for security for costs.
The Motion to Extend Time for Filing the Appeal Materials
[9] The motion record contains the affidavit of a law clerk in support of the relief sought. She deposes that in calculating the thirty-day time period, through inadvertence, it was not noted that July has thirty-one days. This resulted in the moving parties being one day late for filing. It is submitted that prejudice would result if the order is not granted.
[10] The respondent, Caroline, submits that the appeal is frivolous and vexatious, and it would be unfair to grant the order requested given the history and circumstances of this case.
[11] To comply with r. 61.04(1) of the Rules, the notice of appeal had to have been served and filed with the necessary materials by August 22, 2024. The onus is on the party who failed to comply with the timeline to demonstrate that the extension ought to be granted.
[12] In determining whether to grant the extension of time, the court will take into consideration the circumstances of the case. This includes whether the moving party formed an intention to appeal within the relevant time period, the length of time and explanation for the delay, prejudice to the respondent occasioned by the delay, and the merits of the proposed appeal.
[13] The judgment sets out Eduardo and Erwin’s pattern of behaviour that makes it clear they evinced, at best, a cavalier attitude towards the application and orders of the Superior Court of Justice. Their behaviour could be described as tactical, designed to frustrate and defeat their sister’s application.
[14] Caroline commenced the application in 2021 due to concerns with how Eduardo was managing their mother’s estate. Despite a court order in October 2021, Eduardo and Elberto refused move out of the deceased’s home so it could be sold. This resulted in a further order of the court and additional legal fees.
[15] The motion for directions brought by the estate trustee was originally returnable in October 2023, but Eduardo and Erwin sought an adjournment, which was granted on a peremptory basis. They were aware of that provision, yet they did not retain counsel. Instead, on the peremptory return date of the motion, their new counsel, Mr. Tonelli, attended court and requested another adjournment. He did not file any materials and neither Eduardo nor Erwin attended court.
[16] The presiding judge declined the adjournment request, noting that both Eduardo and Erwin were simply trying to delay the hearing of the motion.
[17] The motion proceeded and the judge found at paras. 22-23:
[Eduardo] has been completely uncooperative in providing any documents that would show what happened to money belonging to the estate...Eduardo refused to provide any information to the estate trustee to help her complete her mandate. Eduardo had a box of documents that he refused to turn over to the estate trustee...Eduardo’s conduct made it impossible for the estate trustee to determine the exact extent of the misappropriation.
[18] Whether or not to grant the extension of time is within the discretion of the court. In making that determination, the court must consider whether it is in the interests of justice to grant the extension: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636.
[19] In Enbridge Gas, this court dismissed a motion for an extension of time to file the notice for leave to appeal and held that lack of merit alone can be a sufficient basis on which to deny a motion for extension of time to file an appeal.
[20] Here, the moving parties formed the intention to appeal within the thirty-day time period, albeit at the last possible moment. The length of delay is not problematic, however, the explanation offered is unsatisfactory. The computation of time pursuant to the Rules is not difficult and leaves the question of why the moving parties left the service and filing of the appeal materials to the last possible day. The affidavit of the law clerk filed in support of the motion is of little to no value. There is brief reference to possible prejudice to the moving parties if the order sought is not granted, however, no actual prejudice is identified. If the moving parties wished to persuade the court that the order sought was necessary in order to prevent prejudice, evidence from a party or from counsel should have been included.
[21] I now turn to a final consideration, the merits of the proposed appeal. The notice of appeal asserts that the motion judge failed to adjourn the motion. Whether or not to adjourn a matter is within the discretion of the judge and is based on the facts of this case. The decision of the motion judge to proceed was reasonable, particularly since the motion had been adjourned previously at the request of the moving parties and had been marked peremptory. This ground of appeal is exceedingly weak.
[22] The only other ground of appeal set out in the notice of appeal is “the trial court made an error in fact in making its decision.” Counsel has failed to set out what error of fact or law it is alleged the judge made or how his decision was incorrect. Counsel did not identify any other ground of appeal during the hearing. Thus, the only basis for the appeal is the denial of the adjournment request, which I have commented on earlier in these reasons.
[23] Counsel for the respondent, Caroline, raised the issue of the moving parties’ ability to pay the costs that were ordered by the motion judge. While Mr. Tonelli advised that his clients are not impecunious, no evidence was filed in response to the cross-motion for security for costs. The motion judge awarded costs to Caroline and to the estate trustee, which were to be offset against Eduardo and Elberto’s share of the estate. Eduardo’s share in the estate was reduced by $60,900 because of his conduct in misappropriating funds from the estate.
[24] Finally, the motion judge noted that the estate was a simple one that should have been distributed quickly and easily but for Eduardo and Erwin’s conduct. It was their behaviour that forced Caroline to bring the application. I also note that the estate is a modest one, estimated at approximately $400,000. The concern about the ability of Eduardo and Erwin to pay the costs that have been ordered is a valid one.
[25] In my view, taking into account all of the circumstances, it is not in the interests of justice to grant the extension of time to file the appeal. The motion is dismissed.
Costs
[26] The respondent, Caroline, seeks the costs of the motion on a partial indemnity scale fixed at $8,102.10, or alternatively, on a substantial indemnity scale fixed at $12,153.15. The estate trustee seeks costs on a partial indemnity scale fixed at $7,581.62, or alternatively, on a substantial indemnity scale fixed at $11,301.81. The moving parties claim costs of $7,106.57.
[27] The moving parties were not successful and are not entitled to costs. Caroline and the estate trustee shall be awarded costs. Each of them had to file responding materials, including factums, on the motion to extend time to file the appeal. Caroline brought a cross-motion for security for costs, which was reasonable if the moving parties’ motion was successful.
[28] In my view, it was the conduct of Eduardo and Erwin that resulted in the motions today, designed to prolong the distribution of the estate and payment of costs ordered by the motion judge.
[29] This behaviour cannot be countenanced by the court and is deserving of an award of costs on a substantial indemnity basis. I fix the costs of the respondent Caroline in the sum of $12,000 and of the estate trustee in the sum of $11,000, amounts that are fair and reasonable and well within the contemplation of the moving parties if they were unsuccessful on their motion. Eduardo and Erwin are jointly and severally liable for these costs. Caroline and the estate trustee may satisfy these costs from any amounts to which Eduardo and Erwin are entitled to receive as beneficiaries of the estate.
[30] If there is any amount outstanding that cannot be satisfied from their share of the estate, such amount shall be enforceable as a costs award made against them personally.