Court of Appeal for Ontario

Date: 2025-04-29
Docket: COA-25-OM-0104

Between:
Susan Henderson (Applicant / Moving Party)
and
Wei Wang, in her personal capacity and as Estate Trustee for the Estate of Ruth Emmalene Henderson, Robert Henderson, John David Henderson, Deborah Hall, Jewella Henderson (a minor by her litigation guardian the Children’s Lawyer for the Province of Ontario), Faith Henderson, Tanner Jacob McNeil (deceased), Alana Cook, and Caelan Fulton (Respondents / Responding Party)

Appearances:
Susan Henderson, acting in person
Christopher Crisman-Cox, for the responding party, Wei Wang

Heard: In writing

Judge: L.B. Roberts

Endorsement

Background

[1] The moving party seeks an extension of time to file a notice of appeal from the February 18, 2025 judgment dismissing her application to challenge the validity of the 2018 Will of her late mother, Ruth Henderson. Ruth Henderson died on May 16, 2019. The moving party commenced her application on June 4, 2020. The application was not heard until January 13, 2025.

[2] The moving party was not named as a beneficiary in her mother’s 2018 Will. This represented one of the changes from her mother’s 2009 Will, in which the moving party, along with her other siblings, were named as beneficiaries of their mother’s estate. In her application, the moving party sought a declaration that her mother’s 2018 Will was invalid, alleging suspicious circumstances, a lack of testamentary capacity and undue influence. The application judge rejected her claims and dismissed the application.

[3] The moving party filed but did not serve a notice of appeal on March 6, 2025 (“the notice of appeal”). The deadline for serving and filing the notice of appeal was March 20, 2025. On March 27, 2025, this court’s intake office rejected the notice of appeal because of various deficiencies, including that no proof of service had been provided. On April 15, 2025, the responding party agreed to an extension of time for filing to April 25, 2025. The moving party insisted on an extension to May 15, 2025. The moving party brought this motion to extend the time.

The Test for Extension of Time

[4] The test for an extension of time to file a notice of appeal is well-known. The overarching consideration is whether the justice of the case warrants the extension. Informing that consideration are the following oft-cited factors:

1. whether the moving party has demonstrated an intention to appeal within the required time limit;
2. the length of and explanation for the delay;
3. any prejudice to the responding party; and
4. the merits of the proposed appeal.

The lack of merit of the proposed appeal may be dispositive of the extension request. See: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at paras. 15, 16. I am not persuaded that the justice of the case warrants the extension. Rather, the justice of the case weighs against it. I have come to this conclusion for the following reasons.

Analysis of Delay

[5] I start with the first two factors. I accept that the moving party formed a timely intention to appeal as evidenced by the initial March 6th filing of her notice of appeal. With respect to the factors of the length of and the explanation for the moving party’s delay in serving and filing the notice of appeal, I do not accept the moving party’s allegation that she was mistakenly advised by the court office that she had to wait for a court file number before she could serve the notice of appeal on the responding party.

[6] First, I am not persuaded that the court office would ignore the rules for the commencement of appeals: r. 61.04(1) of the Rules of Civil Procedure states plainly that an appeal to this court “shall be commenced by serving a notice of appeal …within 30 days after the making of the order appealed from” (emphasis added). Rule 61.04(4) clearly requires that the notice of appeal, with proof of service, shall be filed within 10 days after service. This is borne out by the March 27 email from court staff rejecting the notice of appeal because, among other deficiencies, there was no proof of service. Moreover, there is no provision in the Rules or this court’s Practice Directions for the service of a notice of appeal following the assignment of a court file number.

[7] Second, the moving party’s own evidence is inconsistent on this issue. Her allegations in her March 27 email to the responding party’s counsel, her notice of motion and her supporting affidavit that she was somehow incorrectly advised by the court office are undermined by her own statements in her motion materials in dealing with the delay issue. In Exhibit D to her affidavit, she sets out “Timeline of Communications and Filing Attempts” relating to this issue. There is no mention of any conversation with the court office in which staff allegedly gave her incorrect advice. Moreover, in Exhibit E to her affidavit, she appears to resile from her allegation of being incorrectly advised, characterizing the allegedly incorrect instructions as “unclear or incomplete directions by court staff”.

[8] Finally, the moving party’s response to the responding party’s request for an earlier filing date was unreasonable. If the only issue was service, as the moving party claims, why the delay until May 15? There was no explanation. Rather than immediately dealing with the issue, the moving party insisted on delaying a further month and in bringing her motion. Her description of the responding party’s reasonable deadline suggestion as demonstrating “a pattern of pressure and shifting conditions aimed at controlling the procedural outcome” and reflecting “coercive tactics and aggressive posturing” is unfounded. However, her conduct continues the pattern of delay that the responding party attested to in her responding affidavit to this motion and the blaming of others for her own actions.

Merits of the Proposed Appeal

[9] I consider next the question of the merits of the moving party’s proposed appeal. I appreciate that I am not to determine the merits but only consider whether the appeal has so little merit that the moving party should be denied her right to appeal: Issasi v. Rozenzweig, 2011 ONCA 112, para. 10; Pantoja v. Belilla, 2023 ONCA 757, para. 4. I conclude that is the case here. There is no merit to her proposed appeal. She has pointed to no error of law and her challenge essentially focusses on the application judge’s careful and thorough findings of fact and credibility. The application judge reviewed the governing legal principles and evidence related to all the moving party’s claims and made clear and unassailable findings grounded firmly in the record.

[10] As the application judge noted, there was no dispute that the 2018 Will was signed in accordance with the requisite formalities. He found, correctly, that there was a presumption that Ruth Henderson had testamentary capacity, which the moving party failed to displace. He thoroughly analyzed the evidence and found that there were no suspicious circumstances, Ruth Henderson had the requisite testamentary capacity to make her 2018 Will, and she made her 2018 Will without undue influence by anyone. As he concluded: “Far from showing that [Ruth Henderson] was coerced to make the 2018 Will, the evidence on the whole establishes that [she] formed a clear and deliberate intent to remove [the moving party] from her will, as she was entitled to do.” The moving party has not raised any arguable error with these conclusions. Her appeal has no chance of success.

Prejudice and Finality

[11] I turn last to the question of prejudice in the context of the justice of the case. At first blush, the relatively short delay in the moving party’s filing of the notice of appeal would not be a determinative factor in this analysis. However, as I explained earlier, the significance of the moving party’s delay is her actions in unreasonably delaying the filing the notice of appeal and then mischaracterizing and blaming the court office and the responding party and counsel.

[12] A moving party’s long history of procedural misconduct and the resulting prejudice to the responding party may support the dismissal of an extension motion as sometimes such an order is the only order that “can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair” to a responding party: 828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412, paras. 35-37. This is particularly true in estate matters which are expected to be administered promptly and efficiently.

[13] The responding party in her responding affidavit to this motion deposed that the estate and beneficiaries are prejudiced by the lengthy delay in this matter. She stated that the moving party engaged in unreasonable conduct on the application that resulted in the significant delay in the hearing of the application. The moving party’s actions and the prejudice to the estate and the beneficiaries are more particularly described in Exhibit D to the responding party’s responding affidavit. This evidence was not challenged or addressed by the moving party in her reply affidavit that I permitted her to file. As I earlier noted, the moving party has continued to engage in delay and unreasonable conduct on the appeal. I therefore have no confidence that if an extension were granted, the moving party would proceed in an expeditious manner.

[14] Almost six years have passed since Ruth Henderson’s death and the administration of her estate is not yet complete. The estate trustee and the beneficiaries are entitled to finality. They should not be required to expend further time and expense responding to a meritless appeal that only serves to deplete the estate.

Disposition

[15] Accordingly, the motion for an extension of time is dismissed. The responding party is entitled to her costs from the moving party. If the parties cannot agree on the scale and amount of the costs to be awarded to the responding party, they may make brief written submissions of no more than two pages, plus a costs outline, on or before May 8, 2025.

“L.B. Roberts J.A.”