



COURT OF APPEAL FOR ONTARIO

CITATION: Gefen v. Gaertner, 2021 ONCA 631

DATE: 20210916

DOCKET: M52606 (C68850)

Strathy C.J.O., Pepall and Pardu
    JJ.A.

BETWEEN

Henia Gefen in
    her personal capacity and  
    as estate trustee of the Estate of Elias Gefen

Plaintiff (
Appellant/Responding Party
)

and

Arie
    Gaertner, Miller, Canfield, Paddock and Stone LLP
the Jewish
    Home for the Aged, Baycrest Hospital,
Baycrest
    Centre for Geriatric Care,
\
Yehuda Gefen
and
Harry Gefen

Defendants (
Respondents/
Moving Party
/
Responding Party
)

AND BETWEEN

Harry Gefen

Plaintiff by Counterclaim

(
Respondent/Responding Party
)

and

Henia Gefen in her personal capacity and
as estate trustee of the Estate of Elias Gefen, Harvey Gefen, Ashley Gefen, Dundas-Thickson Properties Ltd.,
1393522 Ontario Limited and 1585708 Ontario Limited

Defendants by Counterclaim

(
Appellant/
Responding Party
)

Christopher
    M.B. Graham, for the moving party, Lucia Maria Saunders, Estate Trustee of the
    Estate of Yehuda Gefen (deceased)

Ronald B.
    Moldaver, Q.C., for the responding party, Henia Gefen in her personal capacity
    and as estate trustee of the estate of Elias Gefen

Devin
    McMurtry, for the responding party, Harry Gefen

Heard: September 15, 2021 by video conference

REASONS FOR DECISION

[1]

At the conclusion of submissions, we advised
    counsel that the motion to quash the appeal would be dismissed with reasons to
    follow. These are our reasons.

[2]

The moving party seeks to quash the appeal of
    the responding party, Henia Gefen, on the ground that it is out of time.

[3]

The trial judge released her reasons for
    decision on October 17, 2019. The judgment dismissed the claim of Henia Gefen
    in her personal capacity and as estate trustee. The judgment also dismissed the
    counterclaim of the responding party, Harry Gefen.

[4]

The appeal of Harry Gefen from that judgment,
    and the appeal of Henia Gefen in respect of paragraph 5 of that judgment, are
    scheduled to be heard on October 13, 2021.

[5]

Although the reasons were released on October
    17, 2019, and a decision on costs was released on February 14, 2020, the
    judgment itself was not signed until October 16, 2020, because the parties
    could not agree on the form of judgment. It was necessary for the trial judge
    to convene a case conference and to receive further submissions in order to
    settle the judgment. On October 13, 2020, the trial judge released an
    endorsement giving reasons for settling the form of judgment.

[6]

On October 20, 2020, Henia Gefen served a notice
    of appeal from the judgment, but only insofar as para. 5 of the judgment was
    concerned. That paragraph identified assets owned by the deceased at the time
    of his death.

[7]

The moving party submits that the time for
    appeal generally runs from the date of the release of the reasons, not from the
    date that the judgment is finally settled and issued. That proposition, as a
    general rule, is well supported by authority:
Fontaine v. Canada (Attorney
    General)
, 2012 ONCA 206, 213 A.C.W.S. (3d) 7.

[8]

The general rule may be displaced where the
    judgment provides otherwise, or where the judgment is uncertain on a point, or
    where something of substance has been missed. In such cases, time runs from the
    date of entry of the judgment, not the date of pronouncement:
Fontaine
,
    at paras. 59-60;
Byers (Litigation Guardian of) v. Pentex Print Master
    Industries Inc.
(2003), 62 O.R. (3d) 647 (C.A.), at paras. 31, 33, 34, 36,
    43.

[9]

It is equally well settled, however, that the
    appeal itself is from the judgment and not from the reasons:
Ross v. Canada
    Trust Company
, 2021 ONCA 161, 458 D.L.R. (4th) 39, at para. 53. The
    content of para. 5 of the judgment was not a part of the trial judges summary
    of disposition at para. 248 of her reasons, where she summarized the relief
    that she granted.

[10]

It was not until the judgment was finally
    settled, and issued, that the responding party, Henia Gefen, became aware that
    the content of para. 5 would form part of the judgment of the court. It is reasonable,
    in our view, to treat October 16, 2020 as the date on which time to appeal
    began to run and it is not, therefore, out of time.

[11]

Quite apart from the foregoing, the two appeals
    are factually connected, the moving party has identified no prejudice as a
    result of an extension of time and it would have been in the interests of
    justice that an extension be granted, had it been necessary.

[12]

The motion to quash is dismissed, with costs to
    the responding party, Henia Gefen, fixed in the amount of $3,500, inclusive of
    disbursements and all applicable taxes.

G.R.
    Strathy C.J.O.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


