



COURT OF APPEAL FOR ONTARIO

CITATION: Appleyard v. Zealand, 2019 ONCA 4

DATE: 20190104

DOCKET: C64298

Strathy C.J.O., Roberts and Zarnett JJ.A.

BETWEEN

Jo Anne Appleyard, Objector

Appellant

and

Janice Zealand, Applicant for Certificate of  
    Appointment of Estate Trustee with a Will

Respondent

Jo Anne Appleyard, acting in
    person

M. Jasmine Sweatman, for the Respondent

Heard in writing: December 21, 2018

On appeal from the order of
    Justice Jennifer Woollcombe of the Superior Court of Justice, dated August 1,
    2017, and, pursuant to leave granted by the April 19, 2018 order of this court,
    on appeal from the order of Justice Dale Fitzpatrick of the Superior Court of
    Justice, dated March 15, 2017.

REASONS FOR DECISION

[1]

The appellant appeals from the August 1, 2017 order dismissing her
    motion to set aside or vary the March 15, 2017 order. The March 15, 2017 order,
    from which she also appeals, required the appellant to seek leave of the court
    before she could advance any claims against her deceased former husbands estate,
    failing which her claims would be dismissed. The parties agreed that the
    appeals would be heard in writing.

[2]

The appellant and her former spouse were divorced in 1996. He died in
    2013 leaving a will dividing his estate between his common-law partner and his
    two children. The appellant was not a named beneficiary under the will. The
    appellant filed two objections to the appointment of the respondent, Janice
    Zealand, as the estate trustee, and put forward claims for arrears in spousal
    support and ongoing spousal support, return of property and unjust enrichment.

[3]

On behalf of the estate, Ms. Zealand obtained the March 15, 2017 order
    that the appellant was required to bring an application for leave before the
    Superior Court of Justice pursuant to s. 140 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43, before bringing any claim or motion, pursuant to the June
    5, 2008 order of C. Campbell J. made in the appellants bankruptcy proceedings.
    The March 15, 2017 order further stipulated that if the appellant failed to
    serve her leave application within 30 days of the order, her claims against the
    estate would be dismissed.

[4]

The appellants subsequent motion to set aside or vary the March 15,
    2017 order was dismissed on August 1, 2017, on the basis that she did not meet
    the criteria on which she relied under rr. 37.14(1)(b) and 59.06(2)(a) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194.

[5]

Turning first to the appeal of the August 1, 2017 order, we are not
    persuaded that the motion judge erred in dismissing the appellants motion to
    set aside or vary the March 15, 2017 order. Specifically, the appellants
    failure to appear on the motion before Fitzpatrick J. was not due to accident,
    mistake or insufficient notice under r. 37.14(1)(b), as the appellant alleged.
    Rather, as the motion judge correctly observed, in the light of the several
    prior adjournments at her request, the appellant took a calculated risk in failing
    to appear and requesting a further adjournment of a peremptory motion date for
    reasons that Fitzpatrick J. was entitled to reject as insufficient to excuse
    her absence.  Similarly, we see no error in the motion judges conclusion that
    there was no fraud as required under r. 59.06(2)(a) to permit the court to set
    aside or vary the March 15, 2017 order.

[6]

Accordingly, we dismiss the appeal from the August 1, 2017 order. The
    costs order remains in force.

[7]

With respect to the March 15, 2017 order, we agree that the motion judge
    erred in concluding that the June 5, 2008 order made in the bankruptcy proceedings
    applied to bar the appellant advancing her claim without first obtaining leave in
    the estate proceedings or any other proceedings unrelated to her bankruptcy.

[8]

Paragraph 5 of the June 5, 2008 order is the operative provision that
    underpins the March 15, 2017 order. It precludes and prohibits the appellant
    from bringing any further or other proceedings or seeking any other relief
    without leave of this Court until the appellant has complied with the $2,500
    costs order set out in para. 4 of the June 5, 2008 order and all other costs
    orders outstanding against the appellant relating to the appellants bankrupt
    estate.

[9]

It is common
    ground that there has been no order, including the June 5, 2008 and March 15,
    2017 orders, in which the appellant has been declared a vexatious litigant
    under section 140 of the
Courts of Justice Act
. Absent that declaration,
    it was unreasonable and incorrect for Fitzpatrick J. to expand the reach of the
    June 5, 2008 order beyond the bankruptcy proceedings in which it was made. It
    makes little sense that the appellant would be precluded from bringing a claim
    unrelated to the bankruptcy proceedings for failing to satisfy costs orders
    made in those proceedings. Nor was it reasonable or correct for him to impose a
    requirement on the appellant to obtain leave to bring further proceedings under
    section 140 of the
Courts of Justice Act
, a requirement that
    would properly apply only to someone found, under that section, to be a
    vexatious litigant.

[10]

As
    a result, we allow the appeal and set aside the March 15, 2017 order, including
    the costs order against the appellant, on terms.

[11]

Given
    the significant and protracted delay and incurrence of costs to-date in the
    estate proceedings, in our view, it is in the best interests of all parties to allow
    the appeal on terms that will serve to expedite the estate proceedings. 
    Accordingly, we exercise our discretion under s. 134(1) of the
Courts of
    Justice Act
and make the following order:


Failing agreement,
within 30
    days of the release of these reasons, the estate trustee shall bring a motion
    for directions before a judge of the Superior Court to establish a timetable
    for the administration of the estate, including such steps as may be
    appropriate for the timely determination of the appellants claims
.

Disposition
:

[12]

Accordingly,
    the appeal from the August 1, 2017 order is dismissed. The appeal from the
    March 15, 2017 order is allowed on the terms specified above in para. 11 of
    these reasons.

[13]

There
    was mixed success on these appeals. We therefore make no order as to costs.

G.R. Strathy
    C.J.O.

L.B. Roberts
    J.A.

B. Zarnett J.A.


