Estate Litigation and Employment lawyer Reshma Kishnani article “Decision another reminder of price tag for litigation” was published in Law360 Canada. The article addresses the importance of considering the potential cost of litigation.

The article was originally published on March 1, 2023. To read it in Law360 Canada, part of LexisNexis Canada Inc., visit: https://www.law360.ca/articles/44192/decision-another-reminder-of-price-tag-for-litigation?category=analysis (subscription required).

Decision another reminder of price tag for litigation

In Ducharme Estate v. Thibodeau, 2022 ONCA 661, the Ontario Court of Appeal recently granted the applicant an order for security for costs against the appellant upon being satisfied that there was good reason to believe that the appellant’s appeal was frivolous and vexatious and that the appellant had insufficient assets in Ontario to pay the costs of the appeal, pursuant to Rule 61.06(1)(a) of the Rules of Civil Procedure.

Claudine Thibodeau (the appellant) had a friendship or relationship with Brian Charles Ducharme (the deceased) before he passed away. The deceased died with a will in which he appointed Robert Michael Ducharme (the applicant) as executor. The appellant filed a Notice of Objection in response to the applicant’s application to probate the last will of the deceased. The effect of this was that the registrar could not approve the application for probate and the applicant was required to have his application for probate considered by a judge.

On the eve of the motion before the judge, the appellant withdrew her Notice of Objection and did not attend or instruct her lawyers to attend at the costs hearing. The application judge upheld the validity of the deceased’s will and awarded costs against the appellant in the amount of $47,147.90.

In response, the appellant commenced an appeal challenging the application judge’s decision to uphold the validity of the deceased’s will, despite her own withdrawal of the Notice of Objection, stating primarily that the judge failed to conduct his own inquiry as to the validity of the deceased’s will including her allegation that the deceased had provided instructions to his lawyer to alter his will which his lawyer negligently failed to do. In addition to this the appellant appealed the cost award against her.

The applicant brought a motion for security for costs against the appellant. The court found that given the appellant’s withdrawal of her Notice of Objection, her failure to submit supporting evidence to the court to challenge the validity of the deceased’s will, her commencement of related litigation against the deceased’s will drafting lawyer, her apparent strategy to delay distribution of the estate while she conducted the related litigation and that she did not have sufficient assets in Ontario, it was appropriate to grant the order for security for costs.

The court was satisfied that it had good reason to believe that the appellant’s appeal was frivolous and vexatious based on its inference on the appellant’s decision to bring the appeal and the manner in which it was brought. The court stated: “The substantive appeal appears to be so bereft of merit that there is reason to believe that the decision to bring it may have been a vexatious strategy to advance a costs appeal without having to seek leave to appeal costs, which is rarely granted.”

The court also found that the appellant did not have sufficient assets in Ontario to pay the costs of the appeal further justifying the security for costs order. The court noted that the appellant did not “appear to be impecunious or incapable of maintaining the costs of this litigation” based on the fact that she had legal representation assisting her with the Notice of Objection and maintaining the separate related litigation against the deceased’s will drafting lawyer.

The court ordered that the appellant pay security for costs in the amount of $20,000 and ordered further costs against the appellant of $5,100 inclusive of HST for the motion brought by the applicant.

It is not uncommon for parties to challenge the validity of a deceased’s will particularly when there is a change to the deceased’s spousal relationship, the deceased experiences cognitive challenges when they make their will, the deceased attempts to alter their will just before their death, and but not limited to, where the deceased makes unequal and or insufficient provisions in their will for their loved ones. This can be a costly and lengthy endeavour.

In this particular case, the appellant’s decision and strategy in pursuing this matter against the deceased’s estate has already put a potential price tag in excess of $72,000 on her with a result of the appellant not receiving a distribution from the deceased’s estate or the insurers of the deceased’s will drafting lawyer. Litigation should always be considered carefully, in weighing the potential costs consequences of the same and the potential (not necessarily desired) outcome under the circumstances.

Please contact the author, Reshma Kishnani at rkishnani@mindengross.com, for more information.

Re-printed with permission from Law360 Canada (www.law360.ca), part of LexisNexis Canada Inc. originally published on March 01, 2023.

This article is intended to provide general information only and not legal advice. This information should not be acted upon without prior consultation with legal advisers.