



COURT OF APPEAL FOR ONTARIO

CITATION: Lawlor v. Walton, 2015 ONCA 358

DATE: 20150520

DOCKET: C59868

Weiler, Cronk and Pepall JJ.A.

BETWEEN

Linda Lawlor and Linda Mills

Plaintiffs (Appellants)

and

Pamella
    Walton and Latoya Johnson and

Marjorie
    Johnson

Defendants (Respondents)

Howard Gerson, for the appellants

Granville N. Cadogan, for the respondents

Heard: May 11, 2015

On appeal from the order of Justice P.H. Howden of the
    Superior Court of Justice, dated December 11, 2014.

ENDORSEMENT

[1]

The appellants appeal from the motion judges ruling on the respondents
    motion under Rules 21 and 25.11 of the
Rules of Civil Procedure
.  The
    motion judge concluded that the appellants action was an impermissible
    collateral attack on an October 27, 2010 decision of the Deputy Director of
    Titles under the
Land Titles Act
, R.S.O. 1990 c. L.5 (the Land Titles
    Decision), which the appellants failed to appeal.  Accordingly, the motion
    judge granted the respondents motion and dismissed the appellants action.

[2]

The appellants appeal.  For the following reasons, we conclude that the
    appeal must be allowed.

[3]

The motion judge noted in his reasons that, in their statement of claim,
    the appellants sought an order granting them an extension of time within which
    to appeal the Land Titles Decision.  However, the motion judge did not address
    the merits of whether the appellants had satisfied the test for an extension of
    time or whether such an extension should be granted.

[4]

The record before the motion judge also included a decision by Spies J.
    of the Superior Court of Justice, dated February 2, 2014, acquitting the
    appellant Linda Lawlor of fraud in relation to the transactions at issue in the
    appellants action.  Justice Spies core factual findings at Ms. Lawlors
    criminal trial are diametrically at odds with the Deputy Directors findings in
    the Land Titles Decision.

[5]

Of course, the factual findings at the criminal trial were in no way
    binding on the motion judge.  Ms. Lawlors acquittal at her criminal trial merely
    established that the Crown had failed to prove, to the requisite criminal
    standard, that she had engaged in fraud in relation to the property at issue. 
    Nonetheless, the findings in the criminal proceeding were relevant to an
    assessment of the full circumstances of this case, especially where they ran
    contrary to the inculpatory findings on the same or similar issues in the Land
    Titles Decision.  The motion judge, however, made no mention of the criminal
    proceeding, or of the extensive reasons of the trial judge in that proceeding.

[6]

Further, the record before this court provides some support for the
    appellants claim that procedural fairness at the hearing before the Deputy
    Director of Titles was compromised.  Contrary to the motion judges view, there
    is evidence at this appeal hearing that service on the appellants of notice of
    the hearing before the Deputy Director may have been defective.  It is also uncontested
    that the appellants participated only on the second day of the hearing before
    the Deputy Director and that they were afforded no opportunity to question the
    respondents witnesses who had testified in the appellants absence.

[7]

In our view, in many respects, neither side in this dispute has conducted
    this litigation in accordance with the proper procedures contemplated under the
Rules of Civil Procedure
.  That said, we are persuaded that the
    appellants conduct prior to and at the hearing before the motion judge is
    consistent with the view that their request for an extension of time within
    which to appeal the Land Titles Decision was a live issue.

[8]

Finally, we note that the findings of fraudulent conduct made against
    the appellants in the Land Titles Decision are most serious.  In addition, the
    practical effect of that decision is to require the appellant Linda Lawlor to
    vacate the home where she has resided for approximately eight years.

[9]

In all the circumstances, the interests of justice require that the
    appellants request for an extension of time to appeal the Land Titles Decision
    be heard on the merits, on a proper record.

[10]

Accordingly,
    the appeal is allowed and the appellants action is reinstated, without
    prejudice to renewal by the respondents of their Rule 21 motion, if so
    advised.  If the appellants intend to proceed with a motion for an extension of
    time within which to appeal the Land Titles Decision, they shall serve and file
    their motion, on proper materials, in the Superior Court of Justice within 45
    days from the date of the release of these reasons, failing which they will be
    deemed to have abandoned any extension of time request.

[11]

In
    the unusual circumstances of this case, no award of the costs of the appeal is
    appropriate.

K. M. Weiler
    J.A.

E.A. Cronk
    J.A.

S.E. Pepall J.A.


