CITATION: Ivany v. Simpson, 2015 ONSC 2098
COURT FILE NO: 01-285/13
COURT FILE NO: CV-13-1285-ES
DATE: 20150417
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF Jean Mary Glover
BETWEEN:
Sharon Ivany
Applicant/Moving Party
– and –
Patricia Simpson and John Norman Welsh
Respondents/Responding Parties
Gregory McConnell, for the Applicant
Robert Shour, for the Respondent Welsh
HEARD: April 15, 2015
WHITAKER J.
[1] The applicant seeks a court declaration that a Will signed by the deceased, Jean Mary Glover, (“Mrs. Glover”) on December 17, 2012 is invalid, either by undue influence and/or incapacity.
[2] On these motions, the proposed added parties, Sherrie Welsh, (“Sherrie”) and Eugene Welsh, Jr. (“Eugene”), request an Order that they be added as applicants in the proceeding. The respondent requests an order for security of costs.
[3] Both motions are opposed.
[4] Under the Will of December 17, 2012, John Norman Welsh received the principal asset of the estate, the home of Mrs. Glover. It is argued that the terms of her Will amounted to a significant departure from statements made and positions taken by her in the years leading up to her death. I will address the two questions posed in this matter:
Firstly, should leave be given to add Sherrie Welsh and Eugene Welsh, Jr. as parties?
Secondly, should the applicant be required to post security for costs?
[5] There are a number of factors which favour the granting of leave. First, the positions of the applicants are identical to the positions of the applicants. If leave were not to be granted there may be inconsistent findings of fact and law.
[6] Secondly, additional parties may share the cost burden.
[7] Adding the two parties will simplify obtaining instructions.
[8] The respondents point out that the notice of the intention to add them was given prior to the delivery of the motion for security for costs.
[9] I disagree with counsel for the respondent who suggests that the addition of the new parties will extend the course of litigation and generate additional costs.
[10] With respect to adding the amendment sought generally, I rely on Laskin J.A. from the decision of the Ontario Court of Appeal in Mazzuca v. Silvercreek Pharmacy Ltd., 2001 CanLII 8620 (ON CA), [2001] 56 O.R. (3d) 768 (ON CA), where he says,
In my view courts ought to be guided by the principle that ordinarily, an amendment should be granted where the opposite party has not been misled or substantially injured by the error or, in other words, has not suffered prejudice that cannot be compensated by costs or an adjournment … although the court still has discretion to refuse the amendment, that discretion should not often be exercised.
[11] I see no prejudice to the responding parties other than that this will now mean that there are defendants in the jurisdiction.
[12] With respect to the issue of security of costs, the respondent suggests and I adopt the quote from Brian A. Schnurr in his book, Estate Litigation, 2^nd^ ed., at Ch. 19.11, where he advises:
However, it is difficult for a respondent in an estates matter to be successful on a motion for securities for costs. For one, the general trend is for the courts to not grant an order for security for costs based solely on the applicant ordinarily residing outside of Ontario. The respondent must also show that the claim is frivolous or vexatious or their motion for security will not likely succeed.
[13] I conclude that the additional parties are entitled to be added and that leave is granted for this purpose. I dismiss the claim for security of costs. With respect to the issue of hospital records and medical reports that was raised at the conclusion of the hearing, this was not raised by the parties in their filed material or in the motions record and was not argued at the hearing I decline to deal with it.
[14] Order accordingly, submissions as to costs may be filed within 10 days on 2 pages of writing.
WHITAKER, J.
DATE: April 17, 2015
CITATION: Ivany v. Simpson, 2015 ONSC 2098
COURT FILE NO: 01-285/13
COURT FILE NO: CV-13-1285-ES
DATE: 20150417
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
IN THE ESTATE OF Jean Mary Glover
Sharon Ivany
Applicant/Moving Party
– and –
Patricia Simpson and John Norman Welsh
Respondents/Responding Parties
REASONS FOR DECISION
WHITAKER J.
Released: April 17, 2015