Court of Appeal for Ontario

Date: 2025-03-19
Docket: M55828 (COA-24-CV-1309)
Judge: David M. Paciocco

In the Matter of the Estate of Anna Evelyn Hartin, deceased

Between:
Sharon Hartin
Applicant (Respondent/Responding Party)

and

Mary McInnis, in her capacity as Estate Trustee of the Estate of Anna Evelyn Hartin, deceased and in her capacity as Attorney for Property of Anna Evelyn Hartin
Respondent (Appellant/Moving Party)

Appearances:
Mary McInnis, acting in person
James L. McDonald and Desiree Smith, for the responding party

Heard: In writing

Endorsement

Overview

[1] Anna Evelyn Hartin (“Evelyn”) passed away on May 4, 2016. Evelyn’s daughter, Mary McInnis, acted as attorney for property during the end of Evelyn’s life and then as her executor and estate trustee. Evelyn’s daughter, Sharon Hartin (“Sharon”), raised objections to the manner the estate was administered, which resulted in litigation.

[2] On October 17, 2024, after numerous orders were made by multiple judges directing Ms. McInnis to make disclosure of estate accounts, an assigned trial judge provided final judgment, making strong adverse credibility findings against Ms. McInnis. In his decision he: (1) declined to pass the accounts that Ms. McInnis presented, upholding objections made by Sharon; (2) declared that Ms. McInnis had breached her fiduciary duties both as Evelyn’s attorney pursuant to a power of attorney and as her estate trustee; (3) revoked Ms. McInnis’s certificate of appointment; (4) denied her compensation; and (5) ordered her to reimburse the estate in the amount of $127,167.70. He ordered Ms. McInnis to personally pay costs on a full indemnity basis in the amount of $95,000 because of her failure to provide a full and proper accounting, and her litigation conduct in failing to abide by court orders.

[3] Ms. McInnis, who is unrepresented, filed a Notice of Appeal of that decision on November 22, 2024. Since that time, Ms. McInnis has not filed any of the documents required for perfection. She now moves before me for an extension of time to perfect on the grounds that she requires an extension to perfect as a self-represented litigant facing significant health challenges who is overwhelmed by the requirements of complying with the rules. Sharon opposes that motion and seeks an order pursuant to Rule 61.13(1) dismissing the appeal for delay because of Ms. McInnis’ refusal to file transcripts of evidence.

[4] For the reasons that follow, I will not grant the relief sought by either party, but I will impose a deadline on Ms. McInnis that by March 31, 2025 she either: (1) file proof pursuant to Rule 61.05(5) that she has ordered transcripts of “all oral evidence that the parties have not agreed to omit”, or (2) file a motion pursuant to Rule 61.09(4) seeking relief from compliance. If Ms. McInnis fails to do either Sharon may bring a motion pursuant to Rule 61.13 to the Registrar for dismissal for delay.

The Motion for Extension of Time to Perfect

[5] The perfection deadline in a civil appeal varies depending upon whether the appeal requires transcripts. If not, the perfection deadline is 30 days after filing the Notice of Appeal, pursuant to Rule 61.09(1)(a). If transcripts are required, the perfection deadline does not begin to run until notice has been received that the transcripts are ready, which can take weeks if not months. Once notice has been received, the appellant has a further 60 days, pursuant to Rule 61.09(1)(b).

[6] Ms. McInnis has been insistent that no transcripts are needed for this appeal. On that premise, perfection should have occurred by December 22, 2024, and Ms. McInnis would indeed require the extension she now seeks.

[7] However, Ms. McInnis is wrong in thinking that transcripts of the evidence are not required. Unless the parties agree that transcripts of the evidence are not required (pursuant to Rule 61.05(4)), or the appellant has obtained an order pursuant to Rule 61.09(4) relieving them from Rule 61.05(5), an appellant must file proof that they have ordered transcripts of “all oral evidence that the parties have not agreed to omit”. That is the situation here. The parties have not agreed that no transcripts are needed, and Ms. McInnis has not obtained a court order relieving her from Rule 61.05(5). Transcripts of all evidence in the proceedings are therefore required for this appeal.

[8] Since transcripts are currently required for this appeal and notice has yet to be given that they are ready, the perfection deadline has not yet begun. Ms. McInnis does not need the extension she is applying for. Her application is moot, and I deny it on that basis.

The Motion for Dismissal

[9] Rule 61.13(1) permits a respondent to bring a motion to the Registrar to dismiss an appeal for delay where the appellant has not filed proof that required transcripts have been ordered. There appear to be no reported cases confirming the jurisdiction of a single judge of this Court to dismiss an appeal because of delay, and Rule 61.16(2.2) provides that: “A motion in the Court of Appeal for an order that finally determines an appeal, other than an order dismissing the appeal on consent, shall be heard and determined by a panel consisting of not fewer than three judges sitting together, and always of an uneven number of judges.” An order dismissing the appeal for delay would finally determine the appeal. It is therefore unlikely that I have jurisdiction to make the order requested, but even if I do, I would not make such an order.

[10] First, Ms. McInnis is an unrepresented litigant, and it is evident from the appeal material that she has filed that she is having difficulties complying with the rules. In my view, those materials reflect a misunderstanding on her part of the decision being appealed and betray misconceptions about the nature of the appeal process. I will say no more for fear of prejudicing the appeal, should it proceed to a hearing.

[11] Second, Ms. McInnis has explained her failure to comply with the transcript requirements. Specifically, she believes that she has been instructed by the Registrar’s office that she need only obtain the transcripts that she believes to be needed, in her case none. I am doubtful that Ms. McInnis was given this advice, but I accept that she probably misunderstood the direction she was given. The general obligation on an appellant to secure all transcripts of evidence may not be obvious to an unrepresented litigant, even after reviewing the rules. They are confusing.

[12] Rule 61.05(1), for example, directs appellants to “serve and file … with the notice of appeal an appellant’s certificate respecting evidence (Form 61C) setting out only the portions of evidence that, in the appellant’s opinion, are required for the appeal” (emphasis added). Read in isolation, this provision appears to support Ms. McInnis’ belief that she needed to secure only the transcripts she believes to be required, which in her case are “none”. However, Rule 61.05(1) does not purport to define the transcripts that are required for an appeal. It is simply part of a procedure for identifying the transcripts that are required by requiring both parties to set out what they believe to be needed. First, the appellant files their “certificate respecting evidence”. Then, if the respondent does not agree, they are permitted under Rule 61.05(2) to file a respondent’s certificate “setting out any additions to” the transcripts the appellant has identified. Where this occurs, the appellant must secure those transcripts as well. If, it turns out that the respondent has insisted on transcripts that are not needed, a costs sanction can be imposed on them pursuant to Rule 61.05(8). This is a sensible process, but its description in the rules makes for dense reading and the risk of confusion, even for those who are legally trained.

[13] I therefore accept that Ms. McInnis was honestly confused. In coming to this conclusion, I appreciate that Sharon attempted to assist Ms. McInnis in understanding her obligations, but it is not entirely surprising that she did not trust the advice she was getting from an opposing party litigant.

[14] Moreover, the delay has not been long. Even if Ms. McInnis had ordered the transcripts without delay, it is entirely possible they would not yet be ready, and the perfection deadline would still be outstanding. The most that can be said is that as a result of her confusion, Ms. McInnis delayed perfection by the length of the period during which nothing has been done to secure the transcripts, approximately 3 months.

[15] Finally, Sharon has acknowledged that she has not been prejudiced by the delay. This is not a case for dismissing an appeal for delay.

[16] For the reasons I have provided, I would not make the order that Sharon seeks dismissing the appeal for delay, even if I had jurisdiction to do so. However, it is in the interests of justice that I direct Ms. McInnis that by March 31, 2025 she either: (1) file proof pursuant to Rule 61.05(5) that she has ordered transcripts of “all oral evidence that the parties have not agreed to omit”, or (2) file a motion pursuant to Rule 61.09(4) seeking relief from compliance. If Ms. McInnis fails to do either of these things, Sharon may bring a motion to the Registrar for dismissal for delay.

[17] I have provided Ms. McInnis with the second option because I have not heard submissions from her relating to relief from compliance with Rule 61.05(5). However, it is fair that I share my view with Ms. McInnis that it is highly unlikely that a Rule 61.09(4) motion would succeed in this case, given that her only grounds of appeal allege that the evidence does not support the trial judge’s conclusions. Those grounds of appeal cannot realistically be decided without full transcripts of the evidence. If Ms. McInnis chooses to bring a Rule 61.09(4) motion, she runs a significant risk of being faced with a costs order against her.

Conclusion

[18] I therefore direct that by March 31, 2025, Ms. McInnis either: (1) file proof pursuant to Rule 61.05(5) that she has ordered transcripts of “all oral evidence that the parties have not agreed to omit”, or (2) file a motion pursuant to Rule 61.09(4) seeking relief from compliance. If Ms. McInnis fails to do either of these things, Sharon may bring a motion to the Registrar for dismissal for delay.

[19] There will be no costs order to either party since the success on this motion was split.

“David M. Paciocco”