



COURT OF APPEAL FOR ONTARIO

CITATION: Hernandez v. Hernandez, 2021 ONCA
    106

DATE: 20210217

DOCKET: C67279

Strathy C.J.O., Brown and Miller
    JJ.A.

BETWEEN

Cheri
    Ann Hernandez

Applicant (Appellant)

and

Norman
    Hernandez
,
Anna Hernandez
,
the Office of the Public Guardian and Trustee
, and
    Barbara Taylor

Respondents (
Respondents
)



Nour Jomaa, for the appellant

Anthony R. Leardi, for the respondent,
    Norman Hernandez

Heard and released orally: February 11, 2021 by
    video conference

On appeal from the judgment of Justice Russell
    M. Raikes of the Superior Court of Justice, dated July 3, 2019, with reasons at
    2019 ONSC 4067.

REASONS FOR DECISION

[1]

Anna Hernandez, whose personal care is the
    subject of this appeal, died on March 1, 2020. The respondent submits that we
    should dismiss the appeal as moot. The appellant counters that we should hear
    the appeal because there remains a live controversy:
Borowski v. Canada
    (Attorney General)
, [1989] 1 S.C.R. 342. Alternatively, she submits that
    we should exercise our discretion to hear the appeal.

[2]

We do not agree that there is a live
    controversy. The relief sought in the appeal relates to which of Norman
    Hernandez and Cheri Ann Hernandez should be responsible for the personal care
    of their mother, Anna. That relief is no longer available, and the appeal has
    no practical purpose and is moot.

[3]

We do not accept the appellants submission that
    there remains a live issue as to costs. The appellants liability for the costs
    below is simply an incidental consequence of Annas death and is not a live
    issue.

[4]

Nor do we accept the appellants submission that
    we should hear the appeal because it may have implications for a passing of
    accounts proceeding between the parties. Effectively, the appellant asks us to
    set aside a finding of fact made by the application judge to prevent that
    finding from being used in the passing of accounts proceeding. We decline to do
    so. Any necessary findings of fact will be for the judge in the passing of
    accounts.

[5]

For the following reasons, we do not accept the
    appellants invitation to exercise our discretion to hear the appeal and grant
    the relief she now seeks:

a.

First, for the reasons set out above, hearing
    the appeal will have no practical effect on the rights of the parties;

b.

Second, we do not agree that the appeal raises
    issues of public importance. In our view, it is of importance only to the
    parties, is largely fact-based and there is no uncertainty in the law; and

c.

Third, in the circumstances of this case, it is
    neither in the interests of justice nor an appropriate use of judicial
    resources, to hear an appeal simply to decide which party should be responsible
    for the costs below or for the purpose of binding a judge in other pending
    proceedings.

[6]

The appeal is therefore dismissed, with costs to
    the respondent in the amount of $9,000, inclusive of disbursements and HST, to
    be paid personally by the appellant and not out of the estate.

G.R.
    Strathy C.J.O.

David
    Brown J.A.

B.W. Miller
    J.A.


