Court File and Parties

Court of Appeal for Ontario Date: 20231011 Docket: M54014 (C70660)

Pepall, van Rensburg and Monahan JJ.A.

Between: Leslie Watson, Plaintiff (Moving Party)

And: Abigail Herom, Defendant (Respondent)

Counsel: Leslie Watson, acting in person Rose Faddoul, for the respondent

Heard: September 29, 2023

Reasons for Decision

[1] The moving party appellant, Leslie Watson, moves to review and set aside the December 16, 2022 order of the Motion Judge ordering security for costs of the appeal in the amount of $15,000.

[2] The appellant is appealing the April 19, 2022 summary judgment dismissing her claim in a dispute relating to the estate of her stepfather. The appellant had alleged that his will was invalid because the parties’ stepfather lacked testamentary capacity and the will was the product of the respondent’s undue influence. The appellant was represented by counsel on the summary judgment motion. Accepting the respondent’s evidence and that of two independent witnesses, the summary judgment motion judge granted the motion dismissing the action.

[3] When the appellant appealed from that summary judgment, the respondent sought security for costs in the amount of $35,000.

[4] The rule on security for costs on appeal is r. 61.06(1) of the Rules of Civil Procedure, R.R.O., Reg. 194. It states in part:

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 … 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.

[5] Applying r. 61.06(1)(a), the Motion Judge determined that there was good reason to believe the appeal was frivolous and vexatious. In addition, there was no dispute that the appellant lacked sufficient assets in Ontario to pay the costs of the appeal. Examining the overall justice of the case, the Motion Judge decided that it would be unfair for the respondent to bear the burden of the significant costs to respond to an appeal of doubtful merit without some security for her costs. The Motion Judge was mindful of the appellant’s restricted financial circumstances but was satisfied that the requested order was not being used as a litigation tactic to prevent the appeal from being heard on its merits. She reasoned that security for costs in the amount of $15,000 provided substantial protection to the respondent for her costs of the appeal without being a crushing amount for the appellant.

[6] The appellant raises various arguments to establish that the Motion Judge erred in granting the $15,000 security for costs order. She submits that the respondent failed to properly file certain documents and that the Motion Judge improperly considered certain materials and submissions. She argues that the Motion Judge incorrectly found that her notice of appeal listed arguments that were not before the summary judgment motion judge and that relied on evidence that was not in the record. Finally, she challenges the Motion Judge’s “justness of the order” determination.

[7] We disagree.

[8] The Motion Judge applied the correct test for an order for security for costs on appeal and provided detailed reasons on the lack of merit in the underlying appeal. In addition, she noted that the appellant had provided scant information about the income she was able to generate and her ability to raise or borrow money to satisfy an order for security for costs.

[9] None of the arguments advanced by the moving party undermine the Motion Judge’s conclusions on the two prongs of r. 61.06(1)(a) and her assessment of the justice of the case.

[10] The motion is dismissed. The moving party is to pay the respondent’s costs in the amount of $5,000 inclusive of disbursements and applicable tax.

“S.E. Pepall J.A.” “K. van Rensburg J.A.” “P.J. Monahan J.A.”