Roberts v. Cowie, 2025 ONSC 1920

COURT FILE NO.: CV-21-25108-00ES

DATE: 20250327

ONTARIO

SUPERIOR COURT OF JUSTICE

CV-21-25108-00ES

BETWEEN:

IN THE ESTATE OF CATHERINE COWIE AKA CATHERINE SUTHERLAND COWIE, deceased.

IN THE MATTER OF an application for a small estate certificate or a certificate of appointment of estate trustee.

IN THE MATTER OF an objection to the application for a small estate certificate or a certificate of appointment of estate trustee.

TERRY ROBERTS

Applicant (Moving Party)

-and-

MICHAEL COWIE

Objector (Responding Party)

Adrien Cameron, for the Applicant/Respondent (Moving Party)

N. Mukherjee, for the Objector/Applicant

HEARD: January 22, 2025

AND

CV-24-3555

BETWEEN:

IN THE ESTATE OF CATHERINE COWIE, deceased

MICHAEL COWIE

Applicant (Responding Party)

-and-

TERRY ROBERTS

Respondent (Moving Party)

N. Mukherjee, for the Applicant (Responding Party)

Adrien Cameron, for the Respondent (Moving Party)

HEARD: January 22, 2025

REASONS FOR JUDGMENT

leitch j.

1This is a motion for security for costs pursuant to Rule 56.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, based on the fact that Michael Cowie, who has filed an objection to the appointment of Terry Roberts as an estate trustee, is ordinarily resident outside Ontario.

2Pursuant to r. 75.03, at any time before a certificate of appointment of estate trustee has been issued, a person who appears to have a financial interest in the estate may file a Notice of Objection.

3If such a Notice of Objection is filed, an applicant for a certificate of appointment must give notice to the objector as required by r. 75.03(4).

4To preserve the objection, the objector must file an appearance within 20 days after notice.

5This process was followed by the parties.

6Rule 75.03(6) provides that once the appearance has been filed, the objector may bring a motion for directions if the applicant fails to do so after 30 days.

7As I will describe below, this procedural step did not occur as contemplated under the Rules.

8The administration of this estate has been outstanding for more than 4 ½ years. There are multiple motions scheduled to be heard and other motions pending. These circumstances would be unfortunate in any case but, are particularly so in this case where the estate is a small one as defined in the Rules.

Background Facts

9Catherine Cowie, along with her common law husband Tim Roberts, executed a will on May 31, 2019. Tim Roberts, if he survived Catherine Cowie, was to receive the residue of her estate. If he did not survive her, her cousin, Michael Cowie (“Mr. Cowie”), was to receive the residue of her estate.

10Tim Roberts died on November 5, 2019.

11Catherine Cowie executed a will on December 20, 2019. In this will, she left the residue of her estate to Terry Roberts (“Mr. Roberts”), her brother-in-law, if he survived her. If he did not survive her then Mr. Cowie was to receive the residue of the estate. Mr. Roberts was appointed as Catherine Cowie’s estate trustee pursuant to the December 20, 2019 will.

12Catherine Cowie died on August 17, 2021.

13Pursuant to r. 75.03(1), Mr. Cowie filed a Notice of Objection dated September 16, 2021, alleging that the December 20, 2019 will was not duly executed or alternatively was executed under undue influence, and that Catherine Cowie lacked testamentary capacity and knowledge and approval of her will.

14Mr. Roberts applied for a certificate of appointment of estate trustee pursuant to r. 74.04 on October 29, 2021. This is defined as an “originating process” pursuant to r.1.03(1).

15The estate qualified as a small estate (CV-21-25108).

16Mr. Roberts served a Notice to Objector on November 22, 2021.

17Mr. Cowie served a Notice of Appearance on December 8, 2021.

18Mr. Cowie served a motion for directions in October 2023 but there was no return date on this motion, and it was not filed with the court.

19On April 2, 2024, Mr. Cowie moved for directions pursuant to r. 75.03(6). He describes this as a “renewal” of his 2023 motion.

20Mr. Roberts brought a cross motion for security for costs and a motion for summary judgment based on a limitations issue. He asserts that the Notice of Objection expired in September 2024 pursuant to r. 75.03(2).

21Ten Cate J. heard Mr. Cowie’s motion for directions on August 23, 2024. Counsel agreed on most terms of a proposed order including a timetable for outstanding motions. However, the following two paragraphs proposed by counsel for Mr. Roberts were contentious:

2. THIS COURT ORDERS that Michael Cowie shall be Applicant and Terry Roberts and the Estate of Catherine Cowie, deceased, shall be Respondents.

3. THIS COURT ORDERS that the Applicant shall serve and file a Notice of Application.

22Counsel for Mr. Cowie objected to serving and filing a separate Notice of Application pursuant to r. 75.06(1). As set out in her endorsement, ten Cate J. explained at para. 16 that Mr. Cowie’s counsel asserted that he need not bring a separate application since doing so would result in a multiplicity of proceedings contrary to section 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

23Ten Cate J. at para. 17 disagreed with Mr. Cowie’s submission that his motion was brought within Mr. Roberts’ underlying estate proceeding (CV-21-25108).

24On September 20, 2024, ten Cate J. ordered that Mr. Cowie issue an application for directions pursuant to r. 75.06(1) within 45 days, without prejudice to Mr. Roberts pursuing his motion to dismiss on the grounds that the application is statute-barred.

25On October 7, 2024, Mr. Cowie served a Notice of Motion for Leave to Appeal in respect of the part of the Order of ten Cate J. directing him to proceed by application.

26On November 13, 2024, Shore J. approved the parties’ consent adjournment of the leave motion until after the disposition of Mr. Roberts’ cross-motions in this Court.

27Mr. Roberts asserts that the order of ten Cate J. was not complied with, and Mr. Cowie’s application was filed late.

28Mr. Cowie asserts that on November 1, 2024 he submitted his Notice of Application for Directions under r. 75.06 for issuance and the same was issued on November 19, 2024 (CV-24-3555).

29Mr. Cowie’s Notice of Application states that it is “made under protest that the prayers for relief herein sought are maintainable by motion within the application” of Mr. Roberts.

30The parties have consented to an adjournment of Mr. Cowie’s 2024 application (CV-24-3555) on the same terms as the adjournment of his motion for directions pursuant to paragraph 8 of the Order of ten Cate J., dated September 20, 2024. The consent adjournment was granted.

31I turn next to the issues on this motion.

Can Mr. Roberts seek security for costs against Mr. Cowie?

32Section 131 of the Courts of Justice Act grants the court discretion over the issue of costs, providing as follows: “subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid”. However, in my view, the discretion granted does not extend to the requirement of posting security for costs in the face of the provisions of r. 56.01.

33Therefore, in my view, r. 56.01 governs the determination of the issues on this motion.

34Rule 56.01(1) provides that:

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,

(a) the plaintiff or applicant is ordinarily resident outside Ontario;

35Rule 56.01(2) states that:

Subrule (1) applies with necessary modifications to a party to a garnishment, interpleader or other issue who is an active claimant and would, if a plaintiff, be liable to give security for costs.

36The court has “broad latitude” on a motion for security for costs.

37I agree with the observation of the Court in Hagshama Canada 9 Gold Ltd. v. Decade Urban Communities Corp., 2021 ONSC 5150 at para. 13:

13Rule 56.01(1) does not create a prima facie right to security for costs but rather triggers an enquiry whereby the court, using its broad discretion, considers multiple factors to make such order as is just in the circumstances including the merits of the claim, the financial circumstances of the plaintiff and the possibility of an order for security for costs preventing a bona fide claim from proceeding (Stojanovic v. Bulut, 2011 ONSC 874 at paras. 4-5). The court has broad latitude to make any order that is just in the circumstances (Yuen v. Pan, 2018 ONSC 2600 at para. 14).

38I also agree with the submission of counsel for Mr. Roberts that if the circumstances are as described in r. 56.01, the onus is on a responding party to establish that an order for security for costs is unjust and if the responding party is not impecunious then the responding party must meet a high threshold to satisfy the court of its chances for success, and which must be good or at the very least better than 50-50 [see: Coastline Corporation Ltd. v. Canaccord Capital Corporation, 2009 CanLII 21758 (ON SC); Zeitoun v. Economical Insurance Group, 2008 CanLII 20996 (ON SCDC) affirmed 2009 ONCA 415; Dynacorp Canada Inc. v. Levine, Sherkin, Boussidan, 2017 ONSC 1462].

39Mr. Cowie, a resident of Scotland, has filed an affidavit detailing his profession, his income, his assets, and expenses although he does not include supporting documentation. He is not impecunious. Counsel for Mr. Roberts asserts that Mr. Cowie has not established the requisite probability of success submitting that his objection “was acted upon out of time” and he has not pointed to “some evidence which if accepted, would call into question the validity of the testamentary instrument that is being propounded” (see: Neuberger v. York, 2016 ONCA 191).

40Counsel for Mr. Cowie contends that he meets the evidentiary threshold in these circumstances where there has been no cross examination of the drafting solicitor and no medical documentation produced given that the cross motions of Mr. Roberts have been brought at an early stage.

41However, counsel for Mr. Roberts submits that there is an absence of suspicious circumstances and points out that Mr. Cowie has already had access to confidential legal information as authorized by Mr. Roberts. He contends that Mr. Cowie falls short of the evidentiary threshold.

42A further contentious issue is the consequences of Mr. Cowie’s residence.

43In resisting the motion, Mr. Cowie has also filed an affidavit from an expert setting out the process and costs to enforce an Ontario judgment in Scotland.

44As counsel for Mr. Roberts rightly pointed out, this report was sought after the deadline for filing materials pursuant to the ten Cate J. order of September 20, 2024 and was thus late filed; Mr. Roberts had no opportunity to respond or to retain a comparable expert and, in any event, the qualifications of the expert and his direct experience with the enforcement of foreign judgments is not clear.

45These arguments are all relevant to the court’s exercise of discretion, but the primary issue is whether r. 56.01 is applicable here.

46In Re Bisyk, 1979 CarswellOnt 481, an appeal was allowed and an order that had been made by the lower court for security for costs, against the party disputing a will, was set aside. The applicable rule in that case was comparable to the current r. 56.01(2). It is important to note that in that case the court had to grapple with the fact that the persons challenging the will were seeking a revocation of the grant of probate and thus the circumstances were distinct from cases where a caveat was filed (which is comparable to the Notice of Objection filed here).

47Further, the court in Bisyk stated at para. 10 citing Ward v. Benson (1901) 2 OLR 366 (CA); Newcombe v. Evans (1917) 40 OLR 299; Re Emery [1923] P 184 (CA); and Moran v. Place [1896] P 214, at 216-17 (CA), that when a caveat is filed the executor cannot obtain an order for security for costs. These are the circumstances here.

48I note again that an application for a small estate certificate is defined as an originating process which commences a proceeding.

49I agree with the position of counsel for Mr. Cowie that Mr. Cowie is not a plaintiff or applicant ordinarily resident outside Ontario as described in r. 56.01(1)(a), nor is he an “active claimant”, as referenced in r. 56.01(2), in relation to the 2021 proceeding.

50It is noteworthy that in Bisyk the lower court had referred to Johnson v. Langston (1952) 1952 CanLII 402 (BC SC), 5 WWR (NS) 144 (BC SC), where security for costs was ordered payable by a foreign plaintiff seeking to set aside letters probate. The appeal court in Bisyk noted the person against whom the order was made in Johnson was the plaintiff and the rules in British Columbia are different from those in Ontario.

51The court in Boutzios v. Boutzios, 2004 CanLII 14219 (OSC) accurately observed that Bisyk was a decision that is 25 years old, however, I question the court’s additional comment that the court in Bisyk did not look at whether the claim was frivolous or not. It seems to me that the court in Bisyk did so. The court stated that “the claim of the heirs-at-law is clearly not vexatious and it appears to me that in all probability in these circumstances, no order would be made requiring the heirs-at-law to pay costs”. It was also stated that “there appears to be sufficient and probable ground to question the capacity of the testator and also to put forward the charge of undue influence”.

52I also note that the court in Boutzios distinguished the circumstances under consideration from the circumstances in Bisyk, a distinction I am unable to make here.

53Counsel for Mr. Cowie noted that while Johnson, Boutzios and Watson v. Herom, 2022 ONSC 2367, appear to stand for the proposition that security for costs may be ordered against a will challenger, those cases should not be followed here.

54I agree in relation to Johnson and Boutzios for the reasons described above.

55With respect to Watson, the Court of Appeal at 2023 ONCA 659, leave to appeal to SCC dismissed April 11, 2024, reviewed the motion judge’s order requiring an appellant, who was appealing a summary judgment dismissing her claim in an estate dispute, to post security pursuant to r. 61.06(1), which is different from an order under r. 56.01.

56Further I note that in para. 3 of the summary judgment decision, the court commented that had summary judgment not been granted, the will challenger would have been ordered to post security for costs, but I do not consider the Watson case as support for Mr. Robert’s position. Such an order would have been pursuant to r. 56.01(e) as the will challenger was the plaintiff and the court considered there was good reason to believe her objection was frivolous and vexatious and she had insufficient assets to pay costs.

57Similarly, in Minkofski v. Dost Estate, 2012 ONSC 5598, the judge who granted summary judgment against a will challenger would have ordered security for costs had summary judgment been denied. However, again the will objector was identified as the plaintiff.

58At this time, Mr. Cowie is not the applicant or active claimant in the 2021 proceeding. Rule 56.01 does not apply to him.

59As his counsel noted, Mr. Cowie could be considered to hold that role by virtue of the 2024 proceeding where he is referred to as the applicant.

60I am not inclined to require him to post security for costs within that 2024 proceeding at this stage given that the requirement to make that application is the subject of a motion for leave to appeal and that application may not be pursued if Mr. Roberts is successful on his limitations motion.

61In any event, if Mr. Roberts is not successful on his limitations motion, the court may exercise its powers under r. 75.06(3) after being satisfied that the evidentiary burden to call into question the validity of the will has been met.

62On an application or motion for directions, under r. 75.06(3) the court may direct, in addition to the issue to be decided, who is the plaintiff and who is the defendant.

63Such an order may result in the reconsideration of Mr. Cowie’s obligation to post security for costs.

64As referenced earlier, in Neuberger the Court of Appeal stated that a motion for directions under r. 75.06 would be dismissed if evidence was not adduced which, if accepted, would call into question the validity of the will or if the propounder of the will successfully answered the challenge (see also McBeath v. Wright, 2021 ONSC 4494; Seepa v. Seepa, 2017 ONSC 5368, where the court required an evidentiary basis to support the motion for directions).

65For these reasons, the motion is dismissed.

66In my view, there has been divided success on the motion and thus, as agreed in such circumstances, there shall be no order as to costs.

L.C. Leitch J.