COURT OF APPEAL FOR ONTARIO

DATE: 20260210

DOCKET: COA-25-CV-0301

Paciocco, George and Monahan JJ.A.

BETWEEN

Elizabeth Casey Cooke Family Trust and Charles Daniel Cooke Family Trust by their Trustee, Alan Cooke, and Elizabeth Casey Cooke and Charles Daniel Cooke by their Litigation Guardian, Alan Cooke

Plaintiffs/Responding Parties (Appellants)

and

Paul Dioguardi, Dioguardi Tax Law and Dioguardi Tax Law Professional Corporation

Defendants/Moving Parties (Respondents)

Paul D’Angelo, for the appellants

Alexandra V. Mayeski and Alice E. Colquhoun, for the respondents

Heard: December 3, 2025

On appeal from the judgment of Justice Alexandre Kaufman of the Superior Court of Justice, dated January 16, 2025, with reasons reported at 2025 ONSC 370 .

Paciocco J.A.:

I. Overview & Material Facts

[ 1 ] Paul Dioguardi, a solicitor, prepared a will (the “Will”) for James Cooke which was executed on January 9, 2018. [1] James Sr. died shortly thereafter on March 16, 2018. The Will ultimately left a partial intestacy, contrary to the apparent instructions of James Sr. contained in notations he made on his previous will and handwritten notes which he provided to Mr. Dioguardi. Those written instructions called for an allocation of the residue of James Sr.’s estate to his three children (James Jr., Jonathan, and Alan) and two grandchildren (Elizabeth and Charlie, in trust) in specific proportions. However, contrary to the written instructions the Will made this disposition conditional on James Sr.’s wife Patricia predeceasing him or dying within 30 days of his death. The Will made no alternative provision for the residue if that condition was not met.

[ 2 ] The impugned conditional text of the relevant section of the Will reads as follows:

If my wife should predecease me or should survive me but die within a period of thirty (30) days after my death, I direct my Trustee: […]

[ 3 ] This text was included in the previous will, but it provided an alternative disposition if Patricia survived James Sr. by 30 days. It is likely that if this impugned conditional text was included in the 2018 Will in error, it occurred by using the previous will as a precedent without careful editing.

[ 4 ] In any event, Patricia ultimately survived James Sr. for six years following his passing. Since the precondition to the gifts was not met, the primary distribution scheme in the Will was rendered inapplicable, and the intestate succession regime in the Succession Law Reform Act , R.S.O. 1990, c. S.26 (“ SLRA ”) was left to govern the vast majority of James Sr.’s estate distribution. Under the statutory regime, James Sr.’s grandchildren have no entitlement to his estate: see SLRA , ss. 45- 47 .

[ 5 ] Alan is the father of the grandchildren, Elizabeth and Charlie, who were deprived of the trust funds from James Sr. that the appellants allege James Sr. intended for them. He is also their litigation guardian and the trustee of their trusts. Alan and James Jr. confronted Mr. Dioguardi with the alleged error within days of James Sr.’s passing, but Mr. Dioguardi claimed that the Will accurately reflected James Sr.’s intentions.

[ 6 ] Subsequently, on April 24, 2018, James Jr. applied for a Certificate of Appointment of Estate Trustee With a Will (the “Certificate”), pursuant to the terms of the Will and r. 74 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. The Certificate was issued on May 16, 2018 by the Superior Court of Justice. A certificate replaces the former application for probate: see Neuberger v. York , 2016 ONCA 191 , 129 O.R. (3d) 721, at para. 69 , leave to appeal refused, [2016] S.C.C.A. No. 207. No one objected to the issuance of the Certificate, and no one has applied to have the Certificate revoked, both procedures which are available under r. 75 of the Rules .

[ 7 ] On March 18, 2020, Alan commenced a solicitor’s negligence action against Mr. Dioguardi on behalf of Elizabeth and Charlie (the “Negligence Action”). Mr. Dioguardi delivered a statement of defence and denies he acted negligently. He brought a motion for summary judgment, seeking dismissal of the Negligence Action as an abuse of process. On January 16, 2025, the motion was granted, and the Negligence Action was dismissed after the motion judge concluded that it was a collateral attack on the Certificate and therefore an abuse of process.

[ 8 ] Separately, on October 21, 2022, Alan commenced an application for directions seeking a declaration that ss. 45 and 46 of the SLRA govern the distribution of the residue of James Sr.’s estate. At the time of the summary judgment motion that is the subject of this appeal, that application had not yet been decided.

[ 9 ] The appellants now appeal the January 16, 2025 summary judgment that dismissed the Negligence Action. Mr. Dioguardi has brought a fresh evidence motion in response to the appeal. That fresh evidence motion is unopposed by the appellants. The proposed evidence shows that on March 13, 2025, an order was issued in the Superior Court of Justice granting Alan’s SLRA application and declaring each beneficiary’s entitlement to the residue in accordance with the SLRA . It is not clear from the proposed evidence whether the estate residue has now been distributed according to the SLRA scheme. In any event, I need not determine whether the fresh evidence is admissible as there is no need to consult this evidence to resolve this appeal.

II. Issues

[ 10 ] The appellants raised the following grounds of appeal in their factum:

(1) The motion judge erred in concluding that the Negligence Action is a collateral attack on the Certificate;

(2) The motion judge erred in concluding that when a Certificate of Appointment of Estate Trustee is issued, its effect is that an action in negligence against the solicitor who drafted the will is no longer permitted; and,

(3) The motion judge erred in concluding that making a finding that the respondents negligently failed to give effect to James Sr.’s intentions would contradict the grant of probate.

[ 11 ] The appellants’ three grounds of appeal are interconnected. I therefore address them together in a single analysis. For the following reasons, I would dismiss the appeal.

III. Analysis

A. The Will Could Have Been Rectified at Probate

[ 12 ] The collateral attack finding that is at the heart of this appeal is premised on the theory that during the certificate process the appellants could have rectified the negligent drafting they are alleging in the Negligence Action. If that theory is incorrect, as the appellants contend it to be, the appeal must succeed.

[ 13 ] The appellants claim that rectification of the Will would have been “extremely difficult if possible at all” because the evidence of the lawyer who drafted the will “is a prerequisite” to rectification and Mr. Dioguardi claims that the Will reflects the instructions he received. They argue that by taking this position, Mr. Dioguardi frustrated their ability to seek rectification during the certificate process.

[ 14 ] I do not accept that rectification was either legally or factually unavailable given Mr. Dioguardi’s position. Without deciding whether the cooperation of the drafting solicitor might be necessary in other situations, such as when the court is interpreting a probated will as a court of construction, Mr. Dioguardi’s cooperation would not have been needed to raise the issue of rectification at probate in this case.

[ 15 ] The motion judge articulated the correct principles at paras. 16-22 of his decision, in reliance on Neuberger , which is the leading case of this court. The issuance of a Certificate of Estate Trustee, also known as “probate”, is the court procedure by which a will is proved to be valid. When executors named in the will apply for probate, they must establish that: (1) the testator satisfied the statutory age requirement to make a will; (2) the will was executed in accordance with the statutory requirements and has not been revoked; (3) the testator knew and understood the contents of the will; (4) the will was not affected by mistake; and (5) the testator had testamentary capacity. See Albert H. Oosterhoff et al., Oosterhoff on Wills , 9th ed. (Toronto: Thomson Reuters, 2021), at p. 205.

[ 16 ] The court’s jurisdiction in matters of probate is inquisitorial; the court is obligated to “ascertain and pronounce what documents constitute the testator’s last will and are entitled to be admitted to probate”: Neuberger at para. 68 . To discharge this function and resolve these issues, a probate court will therefore admit direct evidence of the testator’s intention when proving the will: Panda Estate (Re) , 2018 ONSC 6734 , 42 E.T.R. (4th) 139, at paras. 15-17 ; Silano v. Silano , 2019 ONSC 2776 , 49 E.T.R. (4th) 90, at paras. 26-27 ; and Nordlander v. Nordlander Estate , [1998] O.J. No. 4039 (Gen. Div.), at paras. 17-22 ; see also Ali Estate (Re) , 2011 BCSC 537 , 69 E.T.R. (3d) 203, at paras. 21-37 .

[ 17 ] The appellants cite Hofman v. Lougheed et al. , 2023 ONSC 3437 , 87 E.T.R. (4th) 263, to the contrary. Hofman held that this court’s decision in Rondel v. Robinson Estate , 2011 ONCA 493 , 106 O.R. (3d) 321, leave to appeal refused, [2011] S.C.C.A. No. 536, at para. 23, sets out the “applicable legal principles pertaining to rectification of a will”: Hofman , at para. 39 . Relying broadly on Robinson , the application judge in Hofman said that “[i]n determining whether a mistake, if any, has been made by the drafting solicitor … direct extrinsic evidence is generally inadmissible”, including “third-party evidence attesting to the testator’s intentions”: Hofman , at para. 42 . However, Hofman was not a probate case but a construction case, because it involved determining the true meaning, intent, and effect of the language of a will: Hofman , at paras. 1, 20 . Similarly, the decision in Robinson was explicitly premised on the application judge “sitting as a court of construction”: Robinson , at paras. 22-23. Therefore, the commentary in Robinson should not be read as relevant to probate.

[ 18 ] In this case, there was ample evidence on the record to assess James Sr.’s true intentions relating to the residual distribution scheme, even without Mr. Dioguardi’s cooperation. That evidence included: James Sr.’s notations on the 1993 will; James Sr.’s handwritten notes; correspondence between James Sr. and Alan; Alan’s direct affidavit evidence; and Mr. Dioguardi’s examination for discovery transcript, in which the appellants submitted Mr. Dioguardi “[i]n essence … admitted his error”. This is the same evidence that the motion judge found to be “compelling” support of the appellants’ submission that James Sr. did not intend to leave a partial intestacy.

[ 19 ] This evidence would have been admissible in a court of probate and available to the appellants to argue the error for the purpose of rectifying the Will. While it may have been helpful, Mr. Dioguardi’s cooperation was not essential and his refusal to explicitly admit the alleged error would not have prevented the appellants from seeking rectification in the certificate process.

[ 20 ] I recognize that there is authority holding that a court of probate may only delete and not add words: Barylak v. Figol (1995), 9 E.T.R. (2d) 305 (Ont. C.J. Gen. Div.), at para. 25; see also Ali Estate , at paras. 27-37. I need not decide whether this limitation still applies to courts exercising their probate function in Ontario. Even if it does, the alleged drafting error in this case could have been rectified, had it been proved, simply by deleting the introductory text to the distribution scheme, reproduced in para. 2 above, which rendered the scheme conditional. In my view, the probate court did not lack the power to rectify the Will in this case, before issuing the Certificate.

B. The Motion Judge was Entitled to Find the Negligence Action was an Abuse of Process

[ 21 ] The key to understanding why the Negligence Action was an abuse of process lies in appreciating the legal nature of a Certificate of Appointment of Estate Trustee, which is a “court order certifying that particular writings constitute a deceased’s will and that those persons named as estate trustees have the authority to act in relation to the testator’s estate”: Neuberger , at para. 66 . As discussed above in para. 15, to issue a certificate, the court must therefore be satisfied that the will was duly executed, the testator had testamentary capacity, and the testator knew of and approved the contents of the will: Neuberger , at paras. 77-78 . “Probate is an in rem pronouncement that the instrument represents the testator's true testamentary intentions”: Neuberger , at para. 118 . It follows that unless and until it is revoked, the Certificate relating to James Sr.’s estate issued on May 16, 2018, is therefore a final order of the court confirming the Will reflected James Sr.’s intentions. The motion judge found that since the appellants’ Negligence Action required a finding that the solicitor negligently failed to give effect to James Sr.’s testamentary intention, it was necessarily a collateral attack on this central factual finding underlying the Certificate.

[ 22 ] Technically, the Negligence Action was not a collateral attack. A “collateral attack” will occur if a party seeks to overturn a court order in proceedings other than those which explicitly allow the first order to be challenged and reversed: Toronto (City) v. C.U.P.E. , Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77, at paras. 33-34 . The appellants were not seeking to overturn the Certificate or to attack its legal validity or effect. Indeed, Alan took steps to further the effect of the Certificate by bringing an application for directions which sought to have James Sr.’s estate distributed according to the Will as drafted, rather than as allegedly intended.

[ 23 ] However, I would not disturb the motion judge’s decision. The collateral attack doctrine is a subset operating within the broader doctrine of abuse of process: C.U.P.E., at para. 22; Becker v. Walgate , 2025 ONCA 696 , at para. 31 . The motion judge’s reasoning shows that he was properly applying this broader abuse of process doctrine to prevent the appellants from relitigating key factual findings that were finally resolved when the Certificate was issued. As indicated, the Certificate was premised on the conclusion that James Sr. intended to make the gifts to his grandchildren conditional. Yet, in substance the appellants’ claim in the Negligence Action is that James Sr. intended the transfers to be unconditional. The Negligence Action was therefore an abusive attempt by the appellants to relitigate factual findings already resolved by the Superior Court, and to advance issues that could have been determined in prior proceedings, namely the certificate process in this case: see C.U.P.E. , at paras. 37, 51-52; Becker , at paras. 34, 37 ; Aba-Alkhail v. University of Ottawa , 2013 ONCA 633 , 363 D.L.R. (4th) 470, at para. 12 , leave to appeal refused, [2013] S.C.C.A. No. 491; Winter v. Sherman Estate , 2018 ONCA 703 , 42 E.T.R. (4th) 181, at para. 7 , leave to appeal refused, [2019] S.C.C.A. No. 438; and Ontario v. Lipsitz , 2011 ONCA 466 , 334 D.L.R. (4th) 606, at paras. 83-88 , leave to appeal refused, [2011] S.C.C.A. No. 407. The appellants had the opportunity to rectify the Will during the certificate process, but they failed to do so. The motion judge was therefore correct in finding that the Negligence Action was an abuse of process, warranting its dismissal through summary judgment.

[ 24 ] To be clear, and contrary to the appellants’ submissions, this outcome does not mean that negligence claims against solicitors are always prohibited once a Certificate of Appointment of Estate Trustee is obtained. It also does not absolve lawyers of responsibility when they act negligently. The narrow holding of this case is that where a solicitor makes a drafting error that could be rectified in the certificate process, and the party harmed by that error takes no steps to have the will rectified, then the doctrine of abuse of process may prevent the harmed party from subsequently bringing an action against the solicitor for damages equivalent to the benefit they claim they ought to have received.

[ 25 ] For example, there is nothing preventing a claim against a solicitor to recover the costs incurred by the rectification process (i.e., for legal fees and disbursements or for additional expenses and lost opportunities arising from the delay in obtaining the certificate).

[ 26 ] Moreover, there is nothing preventing a claim against a solicitor for damages relating to any negligence in the drafting of the will that cannot be rectified in the certificate process. One example of this would be where a solicitor gives negligent advice that is followed by the testator (such that the testator had knowledge and approval of the contents of the will) but the negligent advice harms a beneficiary. Another would be where a solicitor completely and erroneously leaves out an intended beneficiary (such as a newly-born grandchild who the testator directed to be added in) and the will cannot be rectified because although it is clear the beneficiary was erroneously excluded, the court of probate cannot determine the testator’s intentions related to that person.

[ 27 ] Finally, there is nothing preventing a claim against a solicitor for negligently refusing to cooperate with a beneficiary to rectify a will that was obviously tainted by the solicitor’s drafting error, once that error is brought to the attention of the solicitor.

[ 28 ] The appellants’ Negligence Action in this case did not advance any such claims.

[ 29 ] I would emphasize that the doctrine of abuse of process is not employed to shield lawyers from liability; it is employed to recognize and reinforce the public good of the certificate process by requiring parties to employ the available processes and remedies before, or possibly in parallel to, bringing a negligence action against a solicitor. Errors that can be addressed in the certificate process via rectification must be raised at that stage.

C. There is No Basis to Interfere with the Motion Judge’s Discretionary Decision to Dismiss the Negligence Action

[ 30 ] As an alternative argument, the appellants invite us to overturn the motion judge’s decision to dismiss the proceedings on the basis that judges are not compelled to remedy every case of an abuse of process. They submit that the dismissal in this case is unfair.

[ 31 ] I accept that judges have discretion to determine an appropriate remedy after finding an abuse of process: Saskatchewan (Environment) v. Métis Nation – Saskatchewan , 2025 SCC 4 , 500 D.L.R. (4th) 279, at para. 32 ; Abarca v. Vargas , 2015 ONCA 4 , 123 O.R. (3d) 561, at paras. 28-30 . The equitable doctrines at issue were developed to advance the interests of justice and need not be applied where doing so would create an injustice: see generally C.U.P.E. , at para. 53; Danyluk v. Ainsworth Technologies Inc. , 2001 SCC 44 , [2001] 2 S.C.R. 460, at para. 80 ; and Amtim Capital Inc. v. Appliance Recycling Centers of America , 2014 ONCA 62 , 118 O.R. (3d) 617, at para. 16 , leave to appeal refused, [2014] S.C.C.A. No. 96.

[ 32 ] The motion judge correctly articulated the concerns that were at play including judicial economy, consistency, finality, and the integrity of the administration of justice: see C.U.P.E. , at para. 37. He concluded that fairness in this case favoured dismissing the underlying Negligence Action. He reasoned that if the Negligence Action was permitted to proceed and the appellants were successful, the result would be damages against Mr. Dioguardi that could have been mitigated by the appellants. Moreover, success in the Negligence Action could lead to some beneficiaries receiving greater benefits than they would have received if the Will had been drafted in alignment with James Sr.’s apparent intentions.

[ 33 ] I recognize the weight of the appellants’ submission that it is unfair to foreclose proceedings that would have examined whether Mr. Dioguardi should be held accountable for what may well have been a consequential drafting error that frustrated James Sr.’s testamentary intentions and deprived Elizabeth and Charlie of the gifts their grandfather intended that they receive. But the key point is that such proceedings could have been and should have been undertaken during the certificate process. There are pressing public policy considerations in estate law for applying the abuse of process doctrine to prevent belated attacks against the factual underpinnings of a certificate, which would call that certificate into question.

[ 34 ] The exercise of the motion judge’s discretionary decision to dismiss the Negligence Action is subject to deference on appeal: Métis Nation , at para. 32. I see no basis for interfering with the motion judge’s assessment, including his decision to dismiss the underlying action.

IV. Disposition

[ 35 ] I would dismiss the appellants’ appeal.

[ 36 ] I would order costs payable by the appellants to the respondents in the amount of $12,000 inclusive of applicable taxes and disbursements, as agreed to by the parties.

Released: February 10, 2026 “D.M.P.”

“David M. Paciocco J.A.”

“I agree. J. George J.A.”

“I agree. P.J. Monahan J.A.”

[1] Throughout these reasons, I refer to members of the Cooke family by their first names to avoid confusion, as they all share the same surname. I refer to the deceased/testator, James Andrew Ross Cooke, as “James Sr.” and his son/the estate trustee, James Basil Cooke, as “James Jr.”.