



COURT OF APPEAL FOR ONTARIO

CITATION: Patterson v. Patterson, 2021 ONCA
    70

DATE: 20210201

DOCKET: M51853 (C68604)

Roberts, Zarnett and Sossin
    JJ.A.

BETWEEN

William Harold Patterson

Applicant/Moving Party

(Respondent)

and

Sarah Anne Elizabeth Patterson, in her
    personal capacity and in her

capacity as the personal representative
    of the Estate of Sheila Patsy Patterson,

and Donald David Oral Patterson Jr.

Respondent/Responding Parties

(Appellants)

Carol Craig, for the
    appellants

Taayo Simmonds, for the
    respondent

Heard: January 27, 2021 by video
    conference

REASONS FOR
    DECISION

[1]

The parties bring the following motions: 1) the
    respondent seeks to quash the appellants appeal, as their notice of appeal was
    served approximately 37 minutes late, and to extend the time for the service
    and filing of his notice of cross-appeal to vary the order under appeal to
    provide for leave to bring his passing of accounts application; and 2) the
    appellants, in their responding factum, move to extend the time for the service
    of their notice of appeal.

[2]

These motions arise out of the appellants
    appeal from the order of Justice Brian W. Abrams, dated July 23, 2020, requiring
    them, among other things, to pass their accounts for the period of time they
    served as the attorneys for property for the late Sheila Patterson. The
    appellants are respectively the son and granddaughter of Mrs. Patterson. The
    granddaughter served as estate trustee for the estate of Mrs. Patterson. They
    both exercised powers of attorney for Mrs. Patterson during her lifetime. The
    respondent is also her son. Over the past several years, the parties have been
    embroiled in high conflict litigation over Mrs. Pattersons modest estate.

[3]

As context for the motions, one of the appellants
    principal grounds of appeal is their argument that the motion judge erred by
    failing to address the leave requirement for the respondents passing of
    accounts application under s. 42(4)(6) of the
Substitute Decisions Act,
    1992
, S.O. 1992, c. 30.

[4]

We turn first to the respondents motion to extend
    the time for the service and filing of his cross-appeal. In our view, the justice
    of the case warrants the requested extension:
Rizzi v. Mavros
, 2007
    ONCA 350, 85 O.R. (3d) 401, at para. 16. The issue of leave is the appellants
    principal focus of their appeal. The respondent requests that this court
    dismiss the appeal and grant an order varying the motion judges order to
    explicitly state leave was granted. The appellants do not consent to the
    variance sought nor agree that the respondent can seek that relief without a
    cross-appeal. He is therefore required to bring a cross-appeal to seek this relief
    in accordance with r. 61.07(1)(a) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, which indicates that a respondent who seeks to vary the
    order appealed from must serve a notice of cross-appeal.

[5]

We do not accept the appellants submissions
    that the cross-appeal will require any duplication or cause prejudice because
    the respondent can incorporate his submissions on the leave issue in his responding
    factum and any necessary materials into his responding compendium on the appellants
    appeal. Under r. 61.12(6)(b) of the
Rules of Civil Procedure
, the
    appellants are entitled to file a factum as respondents to the cross-appeal.

[6]

The respondent did not press his motion to quash
    in oral submissions, given the responding materials filed by the appellant. It
    is not in the interests of justice to quash the appeal. The cited breach was
    technical and caused no prejudice. The notice of appeal was served only about
    37 minutes late, the appellants appeal materials were accepted for filing by
    this court, and the respondent made no complaint about the timeliness of
    service until over a month later, when the appellants refused their consent to
    the filing of his cross-appeal.

Disposition

[7]

We therefore allow the respondents motion to
    extend the time for the filing of his cross-appeal to February 3, 2021, the
    date requested by the respondent.

[8]

Given our disposition of the respondents
    motions, it is not necessary for us to consider the appellants request for an
    extension of time, which we therefore dismiss.

[9]

In accordance with the parties agreement, the
    costs of these motions are reserved to the panel hearing the appeal and the cross-appeal.

L.B.
    Roberts J.A.

B. Zarnett
    J.A.


Sossin
    J.A.


