COURT FILE NO.: CV-20-2100 DATE: 2022 04 19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Leslie Watson, Plaintiff AND: Abigail Herom, Defendant

BEFORE: Chozik J.

COUNSEL: Leslie Watson, Self-Represented Rose Faddoul, for the Defendant

HEARD: March 29, 2022

ENDORSEMENT

OVERVIEW:

[1] Two motions are before me. The first is a motion brought by the Plaintiff, Leslie Watson (“Leslie”), to amend her Statement of Claim. The second motion is brought by the Defendant, Abigail Herom (“Gail”), for summary judgment. As an alternative to summary judgment, Gail seeks an order under rule 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, striking all or part of the Statement of Claim and Reply and an order under rule 56.01(e) for security for costs.

[2] I am satisfied that summary judgment must issue. It is therefore not necessary to address the other relief sought. However, I am prepared to do so in case I am mistaken as to summary judgment.

[3] In the alternative, I would have granted leave to amend the Statement of Claim, but I would have struck portions of Leslie’s pleadings. I would have also ordered Leslie to post $45,000 as security for costs.

BACKGROUND:

[4] Leslie and Gail are sisters. They are the stepdaughters of Jack Herom (“Jack”), who died on October 11, 2018. In his Will, dated October 30, 2012 (the “Will”), Jack left his estate to Gail. His Will expressly excluded any non-biological children, except Gail. In other words, under his Will, Jack intended to exclude Leslie from his estate.

[5] The main asset of the estate was Jack’s house in Milton. For some years prior to his death, Gail lived there with Jack and her son Dale Herom (“Dale”). Jack got sick. Gail took care of him. Jack died. Leslie did not know he was sick or that he died for some time. Pursuant to the Will, Gail and Dale took title to the property after Jack’s death. Leslie seeks to have the transfer set aside and to take 50 percent interest in the property.

[6] Leslie argues that the issue for trial is the validity of the Will.

POSITIONS OF THE PARTIES:

[7] In this action, Leslie seeks to have the Will declared invalid and pursues a variety of related relief. She claims that Jack had an earlier Will, one that he executed with her mother Betty, and that under that earlier Will the intention was for her and Gail to equally share in the estate. She claims that she had a close and loving relationship with her mother and Jack.

[8] Leslie alleges that, at the time he executed the Will, Jack lacked testamentary capacity. She claims that Gail, who moved in with Jack after Betty died, unduly influenced Jack and that there were suspicious circumstances around the creation and execution of the Will. In support of her claims, Leslie relies on her own affidavits and an affidavit from her daughter, Jenna Staats.

[9] Gail defends the action. Her position is that Jack’s Will is valid. She submits that there was no earlier joint Will – no one has been able to produce any record of such a joint Will. Gail denies Leslie’s claims and argues that Leslie’s claims are not credible. Gail maintains that Leslie did not have a good relationship with their mother or Jack, and that Jack deliberately and consciously intended to exclude Leslie out of his estate.

[10] In addition to her own evidence, Gail adduced affidavit evidence of two independent witnesses, Fay Hassan and Alexander May. Both of these witnesses confirm Gail’s evidence that the Will is valid.

[11] Fay Hassan is a lawyer. Her sworn evidence is that she prepared the Will in accordance with Jack’s instructions and witnessed him execute it. She details the steps she took to comply with her professional obligations in respect of the preparation of the Will and to satisfy herself of Jack’s testamentary capacity. She states she observed no signs of any undue influence nor suspicious circumstances around the making of the Will. Her evidence also confirms that there was no prior Will found in the files of the lawyer Leslie alleges prepared that Will.

[12] Alexander May gave sworn evidence that he had been a friend of Jack’s for 30 years. He personally witnessed Jack execute the Will. He spoke with Jack about the Will. He states Jack had full testamentary capacity at the time and that Jack told him he intended to exclude Leslie out of any inheritance. He confirms that Jack’s relationship with Leslie was very strained.

Summary Judgment

[13] Pursuant to rule 20.04(2)(a) of the Rules of Civil Procedure, the court must grant a motion for summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or a defence. There is no genuine issue requiring a trial when the judge hearing a motion for summary judgment or defence, on the evidence submitted by the parties, feels they can fairly resolve the dispute: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 57.

[14] A judge hearing a summary judgment motion shall consider the evidence submitted by the parties. If there is a genuine issue requiring a trial, the judge may use the new powers under r. 20.04(2.1) and (2.2), provided it is not contrary to the interests of justice. Those powers include the ability to weigh the evidence, evaluate the credibility of the deponents, and draw reasonable inferences from the evidence: r. 20.04(2.1).

[15] Applying the powers available to me under r. 20.04(2.1), I am able to reach a fair and just determination of the merits of the claim. I am satisfied that there is no genuine issue requiring a trial in this matter. Summary judgment must be granted.

[16] It is well-settled law that the parties must both put their “best foot forward” on a motion for summary judgment: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at paras. 15 and 56. This means that a party cannot “sit back and rely on the possibility that more favourable facts may develop at trial”: Combined Air, at para. 56, citing Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434. This court is therefore entitled to evaluate the summary judgment motion on the basis that the parties have put forward the best evidentiary support for their case.

[17] Leslie candidly acknowledged that she has included all of her evidence on this motion. There is no further or other evidence. This is as strong as her case gets.

[18] I have carefully reviewed Leslie’s evidence. Leslie’s claims on the material issues are not supported by any independent witnesses or objective evidence. Her claims are contradicted by the defence evidence, which includes sworn affidavit evidence from two independent witnesses. I find that the evidence of Ms. Hassan and Mr. May is objective and credible. It is confirmed by each other, and by Gail’s evidence. None of the allegations made by Leslie against them are supported by any of the evidence.

[19] Having weighted the evidence, as I am permitted under r. 20.04(2.1), I find that Leslie’s evidence is outweighed by the evidence of the defence. Her evidence is not persuasive enough to give rise to a genuine issue requiring a trial of this action. Without corroboration or some independent confirmation, Leslie’s evidence is not sufficiently credible. On the other hand, I find that the defence evidence is credible, reasonably capable of belief, and dispassionate. It confirms the validity of the Will.

[20] From her evidence and submissions, it is clear that Leslie was very upset that she and her daughter Jenna were not told of Jack’s illness or death. Devastating as that may be, it does not render his Will invalid or lead to the conclusion that there was undue influence or suspicious circumstances around the making of the Will. There is nothing to confirm that there was an earlier Will. Even if there was, Jack was not precluded from dealing with his estate as he wished many years later.

[21] I am satisfied that there is no genuine issue for trial. Summary judgment must issue.

[22] Although this is dispositive of the two motions before me, I will address the other relief sought in the event I am found to be mistaken respecting summary judgment.

Amendment of Pleadings:

[23] As set out above, on her motion Leslie seeks leave to amend her Statement of Claim to include Gail’s son, Dale, as a party. Rule 26.01 requires the court to grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[24] In this case, allowing Leslie to amend her pleadings would not be prejudicial. It is not disputed that Dale is now on title to the house at issue. Quite fairly, Gail does not oppose that relief. I am satisfied that leave to amend pleadings ought to be granted.

[25] During the hearing, Gail’s counsel sought to show that the Statement of Claim and the Amended Statement of Claim contain some minor discrepancies. Counsel was unable to ascertain whether the versions of the documents she was concerned about were the same versions as those before the court. Hence, she abandoned those arguments.

[26] Gail argued that Leslie had to serve the Amended Statement of Claim on Dale personally, but that she had failed to do so. As I indicated during the hearing, I agree that the Amended Statement of Claim must be served on Dale personally. However, I am not satisfied that notice of the motion before the court also had to be served personally on him. Counsel was unable to cite any authority for this proposition. Service was through regular mail to his last known address. I am satisfied that the notice of this motion was properly served on Dale.

Striking of Pleadings:

[27] Pursuant to rule 21.01, Gail asks that certain paragraphs of the Statement of Claim and most of the Reply be struck. She argues that the following paragraphs contain irrelevant facts: paragraphs 10, 11, 17, 18-20, 22, 26, 27, 36, 38, 39, 40, 44, 45, 46 of the Statement of Claim, and paragraphs 4-57 and 59-69 of the Reply. She argues that the facts stated there have no relevance respecting testamentary capacity or the validity of the Will. Many of the facts are historical, immaterial, lack any identification of the source of the information, and are bare assertions which require Gail to respond unnecessarily.

[28] I agree. Those portions are irrelevant to the issues in this action and shall be struck.

Security for Costs:

[29] Rule 56.01 of the Rules of Civil Procedure dictates the instances where a court may require a party to post security for costs. The provision reads:

56.01 (1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,

(e) there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent[.]

[30] The analysis under r. 56.01 follows a two-step process. As applied to this case, Gail must first demonstrate that there is good reason to believe that the action is frivolous and vexatious and that there is a good reason to believe that Leslie lacks assets in Ontario to pay costs should Leslie be required to do so by the court.

[31] Where it is established that security for costs is appropriate, Leslie can defeat a claim of security for costs by demonstrating to the court that granting Gail’s r. 56.01 motion would be unjust: JoBro Film Finance Ltd. v. National Bank of Canada, 2020 ONSC 975, at para. 5; The Gatti Group Corp. v. Zuccarini, 2019 ONSC 7050, 7 C.L.R. (5th) 298, at paras. 5-7.

[32] In this case, Leslie candidly acknowledged that she has no funds to pay a costs order. She has a debilitating illness, works part-time sometimes, and supports her daughter. She submits that her income is $1,100 per month. She states that she cannot afford to pay anything. At the same time, she argues that her impecuniosity should not prevent her action from going forward.

[33] Security for costs is designed to be protective and not used as a litigation tactic to prevent a meritorious case from being heard. In determining the justness of security for costs, courts have considered various factors including the merits of the claim, delays in bringing the motion, the impact of actionable conduct by the defendants on the available assets of the plaintiffs, access to justice concerns, and the public importance of the litigation. Ultimately, each case must be considered on its own facts: Yaiguaje v. Chevron Corp., 2017 ONCA 827, 418 D.L.R. (4th) 679, at paras. 23-25; Air Palace v. Abdel, 2021 ONSC 7882, at paras. 26-27.

[34] In this case, I am satisfied that there is good reason to be concerned about Leslie’s ability to pay a costs award.

[35] Gail has not offered any estimate as to her anticipated costs, except to say, thus far, her costs have been approximately $50,000. Ordinarily, a detailed estimate in the form of a Bill of Costs or accounting records reflecting the anticipated expenses yet to be incurred is required. Accounting records and Bills of Costs permit the court to assess with particularity the work done and to be done: Air Palace, at para. 70; Aviaco International Leasing Inc. v. Boeing Canada Inc., at paras. 19-20.

[36] Gail relies on two Bills of Costs of the legal expenses and disbursements she has incurred to date. Those expenses total approximately $50,000. Those Bills of Costs do not assist very much in estimating the cost of a potential trial. Having examined the Bill of Costs to date, I conclude that the costs incurred are excessive. I reached this conclusion considering the volume of material, complexity of the issues, the quantum at stake, and the manner in which this motion was argued. This action is in its infancy. The motion for summary judgment was not factually or legally complex. Leslie’s motion for leave to amend pleadings was unopposed.

[37] I am of the view that to defend a trial in this matter could reasonably be expected to cost an additional $75,000 to $100,000. There are two witnesses for the plaintiff, and three witnesses for the defence. Leslie is pursuing various heads of relief. She makes a lot of very serious allegations. Costs of $75,000 to $100,000 to defend this action at a trial would not be unreasonable. If Leslie is not ultimately successful, she has no ability to pay even a fraction of Gail’s costs.

[38] Inability to pay costs is not the only factor. To assess whether to order security for costs, I must also consider whether the action is vexatious or frivolous or whether there is good reason to believe it has virtually no chance of success: 484130 Ontario Ltd. v. Konstantinou, [2001] O.J. No. 111 (Ont. S.C.), at para. 8.

[39] I have considered the factors that courts typically look at in determining whether an action is vexatious or frivolous, and concluded that most do not apply: Lang Michener Lash Johnson v. Fabian (1987), 59 O.R. (2d) 353 (Ont. H.C.), at pp. 358-359 (para. 20).

[40] The one trait of vexatious litigation apparent in this case is that Leslie makes deeply personal and hurtful allegations impugning the integrity or ethics of individuals that are ultimately irrelevant to the issues in the case. She also served multiple versions of the Statement of Claim and Reply. But this action lacks some of the other more obvious characteristics of vexatiousness such as bringing multiple actions or appeals, relitigating decided issues, or failing to pay costs in unsuccessful proceedings.

[41] Here, I find that the litigation has very little chance of success. The evidence to support Leslie’s claims is simply not there. She makes bare assertions and bald allegations. But other than her own recitation of her version of events, there is no independent or objective evidence to support the allegations. Having regard to the weaknesses in her evidence, and the strength of the defence evidence, there is virtually no chance that Leslie will succeed at trial.

[42] With respect to the quantum and form of the security, I am of the view that $75,000 is a low but reasonable estimate for the potential cost to defend a trial in this matter. I make this determination having regard to the complexity of the case, the quantum at issue, the importance of the issues, the nature of the evidence adduced thus far, and the anticipated length of the proceedings.

[43] On a partial indemnity basis this translates to approximately $45,000. This is a reasonable, fair, and proportionate amount that an unsuccessful litigant could expect to pay. Security for costs in the amount of $45,000 is appropriate in the circumstances of this case.

Costs of this Action:

[44] Gail is the successful party on these motions. As the successful party, she is presumptively entitled to costs. The two Bills of Costs submitted by her establish that the total costs she has incurred are $49,749.62 for legal fees and $3,226.63 for disbursements, plus HST. She seeks costs on a partial indemnity basis.

[45] Leslie submits that she cannot afford to pay any legal costs.

[46] Inability to pay costs is not sufficient to deny the successful party from obtaining an order for costs: Scavarelli v. Bank of Montreal at para. 15; see also Myers v. Metropolitan Toronto (Municipality) Police Force (1995), 125 D.L.R. (4th) 184 (Ont. Div. Crt.), at pp. 189-90 (para. 21); Anderson v. Jamieson, 2014 ONSC 5790, at para. 12.

[47] As I have already set out, I find that the costs reflected in the Bills of Costs are excessive, even having regard to the various extra work that resulted from Leslie serving multiple versions of pleadings.

[48] In all the circumstances, I am of the view that costs of $15,000 inclusive of disbursements and HST are fair and proportionate. It is what a losing party can expect to pay for an action that is still in its infancy and dealt with by way of a summary judgment motion.

[49] Leslie shall pay costs to Gail of $15,000 within 30 days.

Chozik J. Date: April 19, 2022