2017 ONSC 2319, 2017 ONSC 2319

CITATION : Marino Estate v. Marino, 2017 ONSC 2319 DIVISIONAL COURT FILE NO.: 624/16 DATE: 20170413 SUPERIOR COURT OF JUSTICE – ONTARIO RE: MICHAEL MARINO, Estate Trustee of the Estate of Nino Marino v. ANTHONY MARINO BEFORE: NORDHEIMER J. COUNSEL: A. Marino in person/moving party F. Kirsh & M.

Rattner, for the responding party, Michael Marino HEARD at Toronto: written submissions E N D O R S E M E N T [ 1 ] The plaintiffs seek leave to appeal from the decision of Hainey J., dated March 9, 2016, in which the motion judge, among other things, ordered Anthony Marino to submit to a capacity assessment. [1] [ 2 ] Anthony Marino and Michael Marino are the only children of the deceased, Nino Marino. Under the deceased’s last will, Michael was named as Estate Trustee.

Anthony challenges the validity of the will. [ 3 ] Because of legitimate concerns regarding the mental capacity of Anthony, Michael brought a motion for, among other things, the appointment of the Public Guardian and Trustee as litigation guardian for Anthony. It is this motion that led Hainey J. to order Anthony to submit to a capacity assessment. [ 4 ] In order to obtain leave to appeal, a moving party must satisfy one of the two tests set out in r. 62.02(4) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, that reads: Leave to appeal shall not be granted unless, (

a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or (

b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. [ 5 ] Anthony is unrepresented on his motion for leave to appeal. In the factum that he filed, Anthony does not address either of the tests for leave to appeal. Consequently, I will address both tests. [ 6 ] In terms of the first test for leave to appeal, Anthony must be able to show that there are conflicting decisions in Ontario on a matter of principle.

Anthony has not pointed to any such conflicting cases. In any event, it would likely be a difficult thing to do, since the nature of the order in issue in this motion is one that is very much fact driven. [ 7 ] In addition, I would not find it desirable to grant leave to appeal in this case. The order of the motions judge is not only

procedural in nature, it does not finally determine any issue, especially whether the Public Guardian and Trustee should be appointed as litigation guardian for Anthony. Those matters are to be determined once the capacity assessment is completed. [ 8 ] In terms of the second test for leave to appeal, Anthony has not pointed to anything that would satisfy me that there is good reason to doubt the correctness of the motion judge’s decision. The motion judge had a motion before him that raised a serious issue regarding the mental capacity of Anthony.

Consequently, the motion judge had the authority, under s. 105(2) of the Courts of Justice Act , R.S.O. 1990, c. C. 43, to order Anthony “to undergo a physical or mental examination by one or more health practitioners”. [ 9 ] Further, I do not find that the issue raised is of such importance that leave to appeal ought to be granted. Again, this is a fact specific determination made in accordance with the requirements of s. 105(2) .

It may be an issue that is important to the immediate parties, but it is not a matter that is of general importance to the administration of justice. [ 10 ] Consequently, the motion for leave to appeal is dismissed. Anthony Marino will pay to Michael Marino his costs of the motion, in the requested amount of $1,500.00, inclusive of disbursements and HST, within thirty days. NORDHEIMER J. DATE: April 13, 2017