Court File and Parties

CITATION: Steinhart, for the Estate of E. I. Aplyn v. Aplyn, 2022 ONSC 3625

DIVISIONAL COURT FILE NO.: DC-20-09

DATE: 2022-06-17

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Haley Steinhart as Estate Trustee of the Estate of Earl Israel Aplyn, Appellant

AND:

Willa Aplyn, Respondent

BEFORE: Stewart, Healey and Nishikawa JJ.

COUNSEL: Haley Steinhart, Self-Represented

No one appearing for Willa Aplyn

HEARD at Brampton: June 15, 2022

ENDORSEMENT

[1] This appeal was scheduled to be heard before us on June 15, 2022. At the hearing, Ms. Steinhart was in attendance as sole executor of the Estate of E.I Aplyn, and was self-represented.

[2] Despite having been served with notice of the appeal and the Appellant’s materials, the Respondent Willa Aplyn did not attend the hearing nor did she file any materials in response to the appeal.

[3] The appeal is from the decision of Kumaranayake, J. dated August 19, 2019 which dismissed the Application brought by Ms. Steinhart on behalf of the Estate for a declaration that approximately $100,000 was taken improperly by the Respondent both from a joint account with Mr. Aplyn and by using Mr. Aplyn’s credit cards both when he was alive and shortly after his death. It is argued by the Appellant that these misappropriated funds are thereby subject to a resulting trust in favour of the Estate.

[4] We note that the Endorsement of Emery J. dated December 14, 2021 made in the context of case management of the appeal provided (at para. 8) that either party may bring a motion to challenge the appellate jurisdiction of this Court under ss. 19(1)(a) and (1.2)(c) of the Courts of Justice Act (“CJA”) at any time.

[5] Although no such motion challenging jurisdiction was brought by either party prior to the hearing, the panel today raised the issue of monetary jurisdiction and indicated to Ms. Steinhart that on its face the amount in issue exceeded the monetary jurisdiction of this Court to hear and determine. We are of the further opinion that this matter does not fall within the ambit of ones that may be appealed to this Court pursuant to s. 10(1) of the Estates Act. A claim for a resulting trust is one seeking equitable relief that does not engage the Estates Act.

[6] Ms. Steinhart agreed that the monetary jurisdiction issue raises a possible legitimate impediment to proceeding with the Estate’s appeal in this Court. She requested that we simply consider her to be moving for an order pursuant to s. 110 of the CJA transferring this appeal to the Court of Appeal as being the proper forum in which to argue the merits of this appeal.

[7] This Court has jurisdiction to transfer an appeal to the Court of Appeal as provided for in s. 110 of the CJA. A consideration in determining whether to do so is the merit of the appeal. In our view there is at least an arguable case with respect to the apparent placement by the application judge of the onus on the Estate to prove improper misappropriation of funds by the Respondent when funds had been shown to have been withdrawn by her, and the alleged failure to place the onus upon the Respondent to prove her assertion that the funds were a gift.

[8] As noted above, no motion was brought by the Respondent raising this jurisdictional issue. She has not filed responding materials nor has she attended at the hearing. Therefore, no resulting prejudice to the Respondent has been shown if the order sought by the Appellant is granted that outweighs the Appellant’s desire to have the appeal heard in the proper forum and the general desirability that this occur.

[9] We also view the fact that the Appellant is self-represented on this appeal as one that weighs in favour of transferring the appeal, rather than simply dismissing it for want of jurisdiction.

[10] Accordingly, this appeal is transferred to the Court of Appeal as s. 110 of the CJA permits. There shall be no costs of the hearing before this Court.

[11] Ms. Steinhart should contact the Court of Appeal administration office to obtain assistance with respect to the transfer of all necessary materials and to obtain a date for the hearing.

[12] We concur with Emery, J.’s encouragement of the parties, as expressed in his endorsement referred to above, to retain or consult counsel with respect to the details of effecting the transfer of the appeal documentation as well as the preparation and filing of any additional material as may be required.

Stewart J.

I agree _______________________________

Healey J.

I agree _______________________________

Nishikawa J.

Date: June 17, 2022