Court File and Parties

Court of Appeal for Ontario Date: 2022-09-21 Docket: M53724 (C70765)

In the Matter of the Estate of Brian Charles Ducharme, Deceased

Between:

Robert Michael Ducharme, in his capacity as Estate Trustee for the Estate of Brian Charles Ducharme Applicant (Respondent/Moving Party)

And:

Claudine Thibodeau Respondent (Appellant/Responding Party)

Before: Paciocco J.A. (Motion Judge)

Counsel: Owen D. Thomas, for the moving party Robert Rastorp and Celine Dookie, for the responding party

Heard: September 16, 2022 by video conference

Endorsement

[1] Claudine Thibodeau, who had a relationship or friendship with Brian Charles Ducharme (“Brian”), brought a Notice of Objection to Robert Michael Ducharme’s (“Mr. Ducharme”) application for probate of a will that Brian had executed. As a result of her Notice of Objection, the court registrar could not issue probate and a probate order from a judge was required.

[2] At no point did Ms. Thibodeau provide evidence to support her shotgun approach in bringing challenges to the validity of the will, including invalid execution, undue influence, lack of testamentary capacity, and lack of knowledge or approval of contents.

[3] On the eve of the scheduled contested hearing, she withdrew her Notice of Objection, which had delayed and complicated the probate of Brian’s will. The application judge awarded costs against Ms. Thibodeau in the amount of $47,147.90 after Ms. Thibodeau failed to instruct her lawyers to attend the hearing where costs would be determined. Probate has now been issued.

[4] Despite having withdrawn her Notice of Objection to probate, Ms. Thibodeau is now appealing the decision of the application judge to uphold the validity of the will (the “substantive appeal”), but she has not sought to reverse or stay the probate decision. She has coupled a “costs appeal” with the substantive appeal. Had she filed a costs appeal without a substantive appeal, she would have required leave to appeal but by combining the substantive and costs appeal, leave to appeal costs is not required.

[5] In the motion before me, Mr. Ducharme is seeking security for costs against Ms. Thibodeau pursuant to r. 61.06(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I am persuaded that the preconditions of r. 61.06(1)(a) are satisfied and that it is just to make a security for costs order in the circumstances of this case.

[6] First, there is ““good reason” to believe that the appeal appears to be devoid of merit”: Health Genetic Center Corp. (Health Genetic Center) v. New Scientist Magazine, 2019 ONCA 576, at para. 10. Ms. Thibodeau is appealing the very order that she conceded below, and she is doing so without any evidentiary record having been placed before the application judge to support a challenge to the validity of the will. She argues that notwithstanding the withdrawal of her Notice of Objection, the application judge erred by failing, before granting probate, to initiate his own inquiry into her allegation that Brian had provided instructions before his death to a lawyer to alter the will, which the lawyer negligently failed to carry out. Mr. Ducharme argues, to the contrary, that even if a lawyer had failed to carry out such instructions, a remedy might be available against the lawyer, but such episode would have no effect on the validity of the will. Mr. Ducharme further submits that an application judge would have no obligation to inquire into an allegation that would not bear on the issues before them, and therefore no obligation to inquire into Ms. Thibodeau’s allegation, particularly not after she abandoned her opportunity to provide supporting evidence. Mr. Ducharme’s arguments provide considerable support for his submission that there is good reason to believe that the appeal appears to be devoid of merit.

[7] Secondly, “there is something that supports the conclusion that the appeal is “vexatious””: Health Genetic Center Corp., at para. 11. 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.

[8] Moreover, Ms. Thibodeau is conducting related litigation against the solicitor who Brian allegedly instructed to amend his will. She has already made widescale unsupported allegations of invalidity in the Notice of Objection which delayed probate of a will that, if fulfilled, would distribute property she believes should be hers. Now she is bringing an apparently frivolous appeal that she believes, based on the submissions in her factum, will delay the distribution of the estate assets even without a stay. There is therefore reason to believe that she has advanced this appeal to delay distribution while she conducts related litigation against Brian’s solicitor.

[9] Mr. Ducharme has therefore satisfied me that the “frivolous and vexatious” precondition in r. 61.06(1)(a) is met.

[10] I am also satisfied that the precondition in r. 61.06(1)(a) relating to the insufficiency of assets in Ontario has been met. Ms. Thibodeau is not a resident of Ontario and has no registered property in Essex County where she formerly resided. Nor has she presented evidence contesting Mr. Ducharme’s claim that she probably does not have property in Ontario.

[11] I can therefore make a security for costs order pursuant to r. 61.06(1)(a), and I am persuaded that I should. Making a security for costs order is just for the reasons identified and would not be unjust to Ms. Thibodeau. She acknowledges owning property in New Brunswick. With the aid of legal representation, she also initiated the Notice of Objection that I have described. And she is maintaining a separate action against Brian’s former lawyer. She therefore does not appear to be impecunious or incapable of maintaining the costs of this litigation such that an order for security for costs would serve as an impediment to access to justice.

[12] I am also satisfied that, in the likelihood that he will be successful in defending Ms. Thibodeau’s apparently unmeritorious and possibly vexatious appeal, Mr. Ducharme should not have to run the very real risk of ultimately having to bear his own costs. Since Ms. Thibodeau initiated the appeal and appears to have the means if he wins to indemnify him for the costs she has caused, an order for security for costs is just, and should be made.

[13] I am not persuaded, however, that this order should include a deposit of the stayed costs order from below. I am therefore making an order that Ms. Thibodeau pay security for costs in the amount of $20,000, an amount I consider to be reasonable. She must deposit this amount by Friday, October 14, 2022, failing which Mr. Ducharme may bring a motion to dismiss this appeal.

[14] Costs are awarded on this motion to Mr. Ducharme, payable by Ms. Thibodeau in the amount of $5,100, inclusive of HST and disbursements.

“David M. Paciocco J.A.”