Appleyard v. Zealand

Appleyard v. Zealand

The court upheld the motion judge's dismissal of the application to set aside the August 1, 2017 decision because the appellant did not meet the strict criteria under rr.37.14(1)(b) or r.59.06(2)(a); but the March 15, 2017 order was set aside because it improperly extended the June 5, 2008 bankruptcy order and...

Source-derived case information.

Citation
2019 ONCA 4
Parties
Objector, Appellant: Jo Anne Appleyard; Applicant for Certificate of Appointment of Estate Trustee With a Will, Respondent: Janice Zealand
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
4 January 2019
Procedural Posture
Civil Estate and Bankruptcy Related Proceedings / Appeal (from Superior Court of Justice Orders Dated March 15, 2017 and August 1, 2017)
Outcome
Appeal from August 1, 2017 order dismissed; appeal from March 15, 2017 order allowed and March 15, 2017 order set aside on the terms specified by the court.
Legal Topics
Setting Aside Orders, Peremptory Motion/default Attendance (r.37.14), Setting Aside for Fraud (r.59.06), Vexatious Litigant and Leave to Proceed (s.140 Courts of Justice Act), Appellate Case Management (s.134 Courts of Justice Act), Costs
Source Language
english
Civil Estate Law Bankruptcy Civil Procedure Setting Aside Orders Peremptory Motion/default Attendance (r.37.14) Setting Aside for Fraud (r.59.06) Vexatious Litigant and Leave to Proceed (s.140 Courts of Justice Act) +2 more

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Parties

Jo Anne Appleyard

Objector, Appellant

Janice Zealand

Applicant for Certificate of Appointment of Estate Trustee With a Will, Respondent

Procedural Posture

Civil Estate and Bankruptcy Related Proceedings / Appeal (from Superior Court of Justice Orders Dated March 15, 2017 and August 1, 2017)

Legal Issues

  1. 1 Whether the motion judge erred in refusing to set aside or vary the March 15, 2017 order under rr.37.14(1)(b) and 59.06(2)(a)
  2. 2 Whether the June 5, 2008 bankruptcy order could bar the appellant from bringing claims in unrelated estate proceedings absent a vexatious litigant declaration
  3. 3 Whether a requirement to obtain leave under s.140 of the Courts of Justice Act could be imposed absent a declaration that the litigant is vexatious

Ratio Decidendi

The court upheld the motion judge's dismissal of the application to set aside the August 1, 2017 decision because the appellant did not meet the strict criteria under rr.37.14(1)(b) or r.59.06(2)(a); but the March 15, 2017 order was set aside because it improperly extended the June 5, 2008 bankruptcy order and incorrectly imposed a s.140 leave requirement absent a vexatious litigant declaration; the court substituted an order under s.134(1) directing the estate trustee to move for a timetable to resolve the estate and the appellant's claims.

Court Disposition

Appeal from August 1, 2017 order dismissed; appeal from March 15, 2017 order allowed and March 15, 2017 order set aside on the terms specified by the court.

Orders

  • March 15, 2017 order is set aside (including the costs order against the appellant) on terms specified in the reasons
  • Appeal from August 1, 2017 order dismissed