ENDORSEMENT SHEET FOR DIVISIONAL COURT CASE CONFERENCE
SHORT TITLE OF PROCEEDINGS: Pletch v Pletch Estate
CITATION: Pletch v. Pletch Estate, 2022 ONSC 7188
COURT FILE NO.: DC- 22-122-00ML
BEFORE: Justice L. Sheard
HEARD ON: December 14, 2022 – Via Videoconference
COUNSEL: Kimberly Cura, for Appellant (Respondent in Application), Kerry-Ann Pletch, Estate Trustee of Darrell Pletch Estate
Derek Sinko, for the proposed Appellant (Respondent in Application), Terry Marcelle MacLellan, in her personal capacity
Mark Muir Rodenburg for Jeffrey Leroy Pletch, Respondent in Application
Tiffany Clarke for Julia Pletch, Respondent in Appeal (Applicant in Application)
Alanah Pletch, Respondent in Appeal, (Applicant in Application), in person
RELIEF REQUESTED: Case Conference
☐ ORDER SIGNED ☐ ON CONSENT
☐ UNOPPOSED ☐ NO ONE APPEARED
☐ ADJOURNED TO Click here to enter a date.
ENDORSEMENT:
[1] A Case Conference was held today to address next steps to be taken on this matter.
[2] I did not have a complete record before me today; however, I did have a copy of the original Notice of Appeal and the Amended Notice of Appeal dated April 20, 2022, the latter of which I understand to be the most recent Notice of Appeal.
Relief Sought on the Appeal
i) Original Notice of Appeal
[3] The original Notice of Appeal asked that the judgment of the Application judge be varied to allow “the appellant to be indemnified by the Estate of Darrell James Herbert Pletch for reasonable costs incurred in responding to the underlying application.”
[4] The Notice of Appeal states that the appeal is brought, in part, pursuant to the Succession Law Reform Act, RSO 1990, s. S.26 (“SLRA”), s. 76. The appellant is of the view that under s. 76 of the SLRA, an appeal lies, as of right, to the Divisional Court.
[5] Section 76 reads: “An appeal lies to the Divisional Court from any order of the court made under this Part.” The Part referenced by s. 76, Part V, encompasses ss. 55 to 79 of the SLRA.
[6] The order appealed from was made under s. 75 of the SLRA, which authorizes a court to award costs of the application out of the estate or otherwise as it thinks proper.
[7] The Application judge made two orders. I understand that the first decision mentions payment of costs and that the second decision, dated March 31, 2022 (delivered to the parties April 6, 2022) deals exclusively with costs (the “Costs Only Order”). At today’s Case Conference, I did not have copies of either order, nor did I have the reasons of the Application judge.
ii) Amended Notice of Appeal
[8] The appellant delivered an Amended Notice of Appeal, seeking additional relief as set out in (new) paragraphs 2 to 5. These paragraphs specifically identify that an appeal is being sought from costs orders and determinations made by the Application judge in the Costs Only Order.
[9] The parties appear to agree that with respect to the new relief sought in the Amended Notice of Appeal, the appellant is required to seek leave to appeal.
[10] Counsel do not agree on whether, if leave to appeal from the Costs Only Order is required, leave to appeal must be sought, in advance, by way of a motion in writing, filed in the Divisional Court Office in Toronto, as per r. 62.02, or whether leave may be sought at the time of the hearing, from the panel hearing the appeal.
Position of the Appellant, Kerry-Ann Pletch
[11] The appellant is of the view that, as s. 76 grants leave as of right, if leave is required respecting the additional relief sought in the Amended Notice of Appeal, that leave to appeal the Costs Only Order may be sought from the panel hearing the appeal.
Position of Terry Marcelle MacLellan
[12] Terry Marcelle MacLellan was not named as an appellant in the Notice of Appeal or in the Amended Notice of Appeal. However, Ms. MacLellan does seek to appeal the Costs Only Order. Derek Sinko, counsel for Ms. MacLellan understood that his client needed to seek to leave pursuant to rule 62.02l to appeal the Costs Only Order. On his client’s behalf, in April 2022 Mr. Sinko filed his client’s written motion for leave with the Divisional Court Office in Toronto.
[13] By email dated May 3, 2022, Mr. Sinko was advised by a clerk at the Toronto Divisional Court that:
- both the appeal and motion for leave are currently being case managed by Hamilton;
and,
- further directions and file numbers would be provided by the parties by Hamilton in due course and issues can be raised to with case management judge.
[14] I am the Administrative Judge of the Divisional Court for this Region and the case management judge.
[15] The central issue on this Case Conference was whether:
a) the named appellant needed to seek leave to appeal at all;
b) the named appellant needed to seek leave to appeal with respect to the new relief sought in the Amended Notice of Appeal;
c) if so, could the appellant ask for leave from the panel hearing the appeal?;
d) Ms. MacLellan, who has not filed a Notice of Appeal, needs leave to seek leave to appeal?; and
e) if so, whether she must seek leave pursuant to the provisions of r. 62.02 or whether she might ask for leave from the panel hearing the appeal?
Discussion
[16] On a plain reading of s. 76 of the SLRA, the position taken by the appellant that no leave is required, or, at least, with respect to the relief sought at para. 1 of the Notice of Appeal (unchanged under the Amended Notice of Appeal) would appear to have some merit.
[17] However, that view gives rise to an apparent conflict with the requirement that leave is required to appeal a costs decision, as set out under s. 133 of the Courts of Justice Act, RSO 1990, c. C.43 (the “CJA”). S. 133 reads as follows:
No appeal lies without leave of the court to which the appeal is to be taken,
(a) from an order made with the consent of the parties; or
(b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs. R.S.O. 1990, c. C.43, s. 133.
[18] At the Case Conference, and without the benefit of any caselaw on point, I expressed the view that, given that the only issue to be determined on the appeal was costs – by whom they should be paid and in what amount – leave to appeal ought to have been sought pursuant to r. 62.02.
[19] Notwithstanding the view I expressed at the Case Conference, I advised the parties that I would make inquiries of my judicial colleagues at the Divisional Court in Toronto to determine whether there exists is a practice or protocol in a case in which the appeal provisions in two statutes appear to conflict. From my inquiries I understand that:
written motions for leave should be brought under r. 62.02 by all parties;
in their written motions for leave, the parties may make submissions on whether the motion is required, given the apparent conflict between the SLRA and the CJA; and
these motions should be identified as brought in consequence to the Case Conference held on December 16, 2022.
[20] To further inform myself, after the Case Conference, I carried a very brief search. I found the decision of Corredato v. Corredato, 2016 ONSC 6252. This was a decision on a motion for leave to appeal, brought under r. 62.02 and pre-dates the current procedure for seeking leave by way of a motion in writing to a Toronto panel.
[21] Corredato is a decision of (then) Justice Thorburn, sitting as single judge of the Divisional Court. The order appealed from was made under Part V of the SLRA; that leave to appeal was required, appeared to have been assumed. In Corredato the order under appeal was interlocutory whereas in this case, the order appealed from is a final order. However, the wording under s. 76 of the SLRA that states that leave lies to the Divisional Court does not differentiate between final and interlocutory orders.
[22] While Corredato may be distinguishable, it does appear to offer an example of the procedure followed on an appeal of an order made under Part V, that supports a view s.133 of the CJA applies, notwithstanding the language used in s. 76.
Order and Directions:
[23] For the reasons given, I order and direct as follows:
Any party that seeks to appeal from the order of the Application judge respecting his decision(s) related to costs shall seek leave to bring the appeal and follow the procedure set out under r. 62.02 and applicable practice directions.
In complying with the direction at 1., Ms. MacLellan may choose to re-file the motion materials that she had filed in April 2022 or she may file new motion materials.
In their motions in writing, the parties are free to assert that leave is not required, by reason of the provisions of the SLRA.
Subject to an order that may be made by a panel of the Divisional Court, if leave is not sought and granted, the issue of leave is not to be put before the panel hearing the appeal.
[23] I will arrange for this endorsement to be sent to Justices Corbett and Matheson.
Date: December 19, 2022
Justice L. Sheard
CITATION: Pletch v. Pletch Estate, 2022 ONSC 7188
COURT FILE NO.: DC-22-122-00ML
DATE: December 19, 2022
SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT
RE: Pletch v Pletch Estate
BEFORE: Justice L. Sheard
CASE CONFERENCE ENDORSEMENT
L. Sheard J.
DATE: December 19, 2022