Court File and Parties
COURT OF APPEAL FOR ONTARIO
DATE: 20220826 DOCKET: M53703 (C69986)
Hoy J.A. (Motion Judge)
In the Matter of the Estate of Rosalba Di Nunzio, deceased
BETWEEN
Lucia Di Nunzio Applicant (Appellant/Responding Party)
and
Teresa Di Nunzio and Robert Di Nunzio Respondents (Respondent/Moving Party)
Counsel: Michael S. Deverett, for the moving party Benjamin D. Arkin and Tina Nguyen, for the responding party
Heard: in writing
Endorsement
[1] The respondent, Teresa Di Nunzio (“Teresa”), brings this motion for an order requiring the appellant, Lucia Di Nunzio (“Lucia”), to post $25,000 for security for costs of the appeal, and $111,395.45 for the costs of the application, within 30 days, failing which the appeal shall be dismissed. In the alternative, Teresa requests a declaration that there is no mutuality of remedy in the circumstances, together with an order that Lucia must elect, within 30 days of the order, to either relinquish her claim for costs or post the security for costs. This motion was heard in writing at the direction of the case management judge.
[2] In seeking security for costs, Teresa relies on r. 61.06(1)(a) and (c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:
(1) In an appeal where it appears that,
(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;
…; or
(c) for other good reason, security for costs should be ordered,
a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.
[3] Teresa argues that Lucia’s appeal is lacking in legal merit and is brought without reasonable cause, and, therefore, is frivolous and vexatious. Further, she argues that Lucia has insufficient assets to pay the costs of the appeal. Thus, she submits, the requirements of r. 61.06(1)(a) are satisfied.
[4] Teresa also argues that in the circumstances there is a lack of mutuality of obligation and remedy: if Lucia is successful on appeal, she can recover the costs of the application and the appeal from Teresa, and if Lucia is not successful, she will walk away without having to pay Teresa’s costs of the application and appeal because she has no assets. Teresa argues that this lack of mutuality is an “other good reason” within the meaning of r. 61.06(1)(c). She acknowledges that this is a novel argument.
[5] I am not persuaded that the threshold requirements of r. 61.06(1)(a) or (c) are made out.
[6] While it does not appear to be disputed that Lucia does not have sufficient assets – in Ontario or elsewhere – to pay the costs of the appeal or the costs below, I do not have good reason to believe that Lucia’s appeal is frivolous and vexatious.
[7] Lucia and Teresa are sisters. In her application below, Lucia unsuccessfully challenged her late mother’s final will, which appointed Teresa the sole trustee and beneficiary and was prepared by a new solicitor. In earlier wills, Lucia had been entitled to one third of her mother’s estate. On appeal, she argues that the application judge failed to apply or misapplied the doctrine of suspicious circumstances.
[8] If a party challenging a will introduces evidence that raises “suspicious circumstances” surrounding the preparation of the will, tending to call into question the capacity of the testator, or tending to show that the free will of the testator was overborne by acts of coercion or fraud, the burden shifts to the propounder of the will to prove that the testator had knowledge and approved the will’s contents and had the necessary capacity: Vout v. Hay, [1995] 2 S.C.R. 876, at paras. 25-27.
[9] A frivolous appeal is one that is readily recognizable as devoid of merit: Pickard v. London Police Services Board, 2010 ONCA 643, at para. 19; York University v. Markicevic, 2015 ONCA 651, at paras. 32, 33. I would not go so far as to say that Lucia’s appeal is readily recognizable as devoid of merit. But even if it were, on the record before me, it is not frivolous and vexatious.
[10] Lucia believes that the application judge erred. She brings the appeal to reverse the application judge’s decision. There is no evidence that the appeal is taken to annoy or embarrass Teresa or was conducted in a vexatious manner: Pickard, at para. 19. There is no obvious bad faith motivation. A low chance of success is not in itself sufficient to find an appeal vexatious: Health Genetic Center Corp. (Health Genetic Center) v. New Scientist Magazine, 2019 ONCA 576, at paras. 10-11; York University, at paras. 33, 35.
[11] Nor am I satisfied that what Teresa characterizes as “lack of mutuality” constitutes “other good reason” to order security for costs or that she is entitled to the declaration and order that she seeks in the alternative.
[12] Teresa relies on two Supreme Court decisions in advancing her argument: Tucker v. Jones, [1916] 53 S.C.R. 431 and Politzer v. Metropolitan Homes Ltd., [1976] 1 S.C.R. 363. Those cases considered mutuality in very different legal contexts than a motion for security for costs. In Tucker, the Court was concerned with an action for specific performance related to a contract for the exchange of pieces of land situated in Saskatchewan and Iowa. The Court upheld the decree of special performance, holding that mutuality of remedy may still exist even though the parties must seek their remedies in courts of different jurisdictions. In Politzer, the Supreme Court was concerned with whether the document at issue was an agreement for the purchase and sale of land or an option to acquire land. The court concluded that the document was merely an option because it lacked mutuality of obligation.
[13] What Teresa calls “lack of mutuality” is in essence a disparity in the financial resources or circumstances of the parties and is the reason most motions for security for costs are brought. Accepting what Teresa concedes is her novel argument would significantly broaden the scope of r. 61.06(1).
[14] As to the relief that Teresa seeks in the alternative, the “lack of mutuality” Teresa describes is not the lack of mutuality considered in the two cases she cites. I decline to grant the alternative declaratory relief she seeks. Further, the alternate relief would require Lucia to post security for costs where I have concluded that the threshold requirements of neither r. 61.06(1)(a) nor (c) are met. I decline to grant the alternate relief sought.
[15] Accordingly, this motion is dismissed.