Court File and Parties

Court File No.: CV-19-00000024-ES Date: 2025-07-28 Ontario Superior Court of Justice

Between:

Margot Ann Maille, in her personal capacity and in her capacity as Attorney for Property for Nova Joseph Maille, Martin Frederick Maille, Victoria Lauren Chatwin, and Pierre Michael Maille Applicants

– and –

Laurelle Marie Hartley, in her personal capacity and in her capacity as Attorney for Property for Nova Joseph Maille, Paula Elizabeth Ethier, in her personal capacity and in her capacity as Attorney for Property for Nova Joseph Maille, Bryan Stuart Maille and Concentra Trust, Estate Trustee for the Estate of Nova Joseph Maille, Deceased Respondents

Counsel

Joseph Kennedy, for the Applicants

Laurelle Marie Hartley, Self-Represented Brendan Donovan and Rebecca Betel, for the Respondent, the Estate of Nova Joseph Maille

Heard: July 23, 2025

Reasons for Decision on Motion

Cullin J.

Introduction

[1] This matter appeared before me in Motions Court. The respondent, Laurelle Marie Hartley, has brought a motion seeking orders for the following: (1) setting aside the Registrar's Order to Continue, dated April 24, 2025; (2) dismissing the application for delay; (3) dismissing the application against the respondent Nova Maille and/or Concentra Trust as Estate Trustee; (4) appointing an Estate Trustee during litigation subject to the consent of all beneficiaries; (5) costs.

[2] I advised the parties in Motions Court of the orders I would be making, and that I would provide written reasons. To the extent that these reasons conflict with any oral reasons given, these are the final reasons.

[3] For the purpose of these reasons, I will refer to the involved parties on this motion as: "the applicants" (being the applicants collectively); "the respondent" (being the respondent Laurelle Marie Hartley); and "Concentra" (being Concentra Trust as Estate Trustee for the respondent Nova Joseph Maille, deceased).

Background

[4] This is a matter with a lengthy history, which I will not reiterate in any great detail. In short, this is one of four proceedings that were commenced among a group of siblings arising from the administration of their parents' estates. When the proceedings were commenced, their mother was deceased. Following the commencement of this application, their father passed away. The litigation involving their mother's estate was eventually resolved. There are presently two outstanding applications involving their father's estate.

[5] The respondent is a party to both proceedings. In this proceeding, she is self-represented. In the other proceeding, she is represented by counsel. Both proceedings have been extensively case managed.

Motion Materials and Procedural Issues

[6] The present motion was served by the respondent on April 29, 2025. No materials were filed by the respondent in support of the motion, except for a Notice of Motion. Specifically, no supporting affidavit was filed, nor was a factum filed. The Notice of Motion references several items that the respondent seeks to rely upon in support of the motion, including: a mediation brief dated October 26, 2022; a factum dated April 22, 2022, filed in support of a motion for productions; an affidavit of Victoria Lauren Chatwin, sworn April 23, 2025 (one of the applicants), filed in support of the Order to Continue; and, an affidavit of Darla Scott sworn November 15, 2024 (of Concentra Trust), filed in support of the Application for Appointment of Estate Trustee.

[7] At the outset of the motion, I requested submissions from the parties regarding the evidentiary record. Following those submissions, I dismissed the motion and ordered costs. I advised the parties that I would issue an endorsement setting out my reasons for doing so – these are those reasons.

Procedural Requirements for Motions

[8] Pursuant to Rule 37.10 of the Rules of Civil Procedure, motions are required to be supported by a motion record which includes, among other things, all affidavits and other material served by any party for use on the motion. Depending upon the nature of the motion factums may, but are not required, to be served.

[9] I will note at the outset that the respondent's failure to file a factum is not fatal to her motion. I agree with counsel for the applicant and Concentra that the nature of the motion, which sought the dismissal of the application, called for a factum however, that is an issue which could have been resolved with an adjournment and, potentially, costs.

[10] What is more problematic for the respondent is the absence of any evidence supporting her motion. Some of the materials that the respondent lists in her Notice of Motion are privileged settlement briefs and briefs of arguments and submissions made in unrelated motions. To the extent that she lists affidavits, it appears not that she intends to rely upon them, but rather that she seeks to make submissions protesting their contents without an evidentiary foundation.

Discretion to Adjourn

[11] I am mindful of the fact that the respondent is a self-represented litigant in this proceeding. As such, I also turned my mind to whether providing directions and granting an adjournment, potentially with costs, would be an appropriate step to address the deficiency in her motion materials. I have concluded that it would not.

[12] In reaching this conclusion, I have considered the following:

a. Concentra served and filed a comprehensive factum, dated May 29, 2025, discussing the deficiencies in the respondent's motion materials, including the absence of a supporting affidavit. The respondent had almost two months to address these deficiencies or, at minimum, to seek legal advice about her motion materials and failed to do so.

b. While the respondent is self-represented in this proceeding, she is represented by experienced litigation counsel in the parallel proceeding. There was no apparent barrier to her seeking, at minimum, legal advice regarding the deficiencies raised by Concentra in advance of the motion.

c. The respondent opposed a request to adjourn the motion at the last appearance. She also opposed a request to have the motion heard concurrently with the application. She indicated at the commencement of this motion that she was ready to proceed. She took these positions knowing that Concentra was requesting the dismissal of the motion due to the absence of a supporting affidavit. This leads me to conclude that she has filed all evidence available to her that she believes supports her application.

Prima Facie Merits of the Motion

[13] Although not determinative, I also turned my mind to the prima facie merits of the respondent's motion. In my view, the interests of justice would support an adjournment to give the respondent the opportunity to marshal evidence in support of a motion with compelling prima facie merits. It is more difficult to justify exercising the Court's discretion to enable a motion that is ill-fated, regardless of the evidence that will be marshalled.

[14] In my view, the respondent's motion is an ill-fated motion. In making this assessment, I have considered the following:

a. Dismissal for delay: In determining whether to dismiss a proceeding for delay, the Court must consider whether the delay has been inordinate, inexcusable, and prejudicial: Sickinger v. Krek, 2016 ONCA 459. It is difficult to imagine how the respondent will succeed in advancing such an argument when this matter has been extensively case managed and when her own parallel application has been ongoing since 2017.

b. Dismissal against the Estate of Nova Maille: This is not relief which is available to the respondent on a motion. The respondent is not advancing a claim against the Estate, which is a co-respondent in this application; she has no claim against it to dismiss. With respect to the applicant's claim against the Estate, the respondent does not represent the Estate and has no standing to pursue relief on its behalf.

c. Order to Continue: Nova Maille died on April 21, 2022. The Order to Continue was a necessary step to advance the proceeding, which could have been undertaken by any party. The respondent could have taken this step at any time prior to April 24, 2025 and did not. The respondent cannot reasonably argue that the applicant is failing to advance the litigation while concurrently objecting to the applicant taking the very step necessary to do so. Further, Rule 11.03 does not apply in this situation because the Estate is a respondent and not the applicant.

d. Appointment of Estate Trustee during Litigation: Concentra is a neutral party that was appointed Estate Trustee on April 9, 2024 pursuant to an order made on consent of all parties, including the respondent. Pursuant to the Rules of Civil Procedure, it is the Estate Trustee that represents the Estate in litigation. The respondent, in her notice of motion, lists no conflicts or actions by Concentra that would render it inappropriate to represent the Estate in this proceeding, and none are apparent in the evidence filed by the other parties. It is difficult to imagine how the respondent will succeed in this argument.

Dismissal of Motion

[15] For these reasons, the respondent's motion is dismissed due to the absence of evidence supporting her motion.

Costs

[16] With respect to the issue of costs, the Court's ability to award costs is conferred upon it pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Although awarding costs is discretionary, in civil actions the Court is guided in its exercise of discretion by the Rules of Civil Procedure.

[17] With respect to motions, pursuant to Rule 57.03, the successful party is entitled to an award of costs, payable forthwith, absent circumstances that would support a finding that another order would be more just.

[18] As a general rule, costs are awarded having regard to the principle of indemnity; that is, they are payable to the successful party by the unsuccessful party. Other factors to be considered by the Court include: (i) the amount claimed and recovered in the proceeding; (ii) the complexity of the proceeding; (iii) the importance of the issues; (iv) the conduct of the parties; and (v) whether any step was improper, vexatious or unnecessary.

[19] An award of costs must reflect an amount that is fair and reasonable having regard to the individual circumstances of a case: Boucher v. Public Accountants Council (Ontario). Costs are intended to indemnify a successful party for the expense of being compelled to seek the assistance of the Court to resolve a dispute: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, paras. 19-21.

[20] In this instance, I find that the respondent's motion was unnecessary and was conducted unreasonably. The respondent refused to consent to reasonable adjournment requests, or to addressing the issues she was raising in the context of a hearing of the application, which would have been both efficient and cost-effective. She insisted upon pressing ahead even when unambiguous deficiencies were identified in her motion materials.

[21] I agree with the applicants and Concentra that the respondent's motion was a serious motion. She was seeking to dismiss the application; the motion was tantamount to a summary judgment motion. In responding to the motion, the applicants and Concentra were required to undertake detailed research and preparation; those costs should not be solely borne by the Estate and the remaining beneficiaries.

[22] The applicants sought substantial indemnity costs in the amount of $10,000, and Concentra sought substantial indemnity costs in the amount of $21,137.57. While there is certainly an argument to be made in favour of substantial indemnity costs, some recognition must be given to the respondent's status as a self-represented litigant. I am therefore exercising my discretion to award partial indemnity costs.

[23] Having reviewed the parties' costs outlines and heard the submissions of the parties, I find that the respondent should be ordered to pay costs to the applicant in the amount of $7,500 and costs to Concentra in the amount of $12,500.

Case Management

[24] On a final note, it appears to me that both this matter and the parallel matter (Haileybury Court File No. CV-17-6052-ES) are due for a case management conference now that Concentra is fully immersed in the proceedings. I will therefore be directing that a case management conference be scheduled at the earliest date available to the parties, counsel and the Court.

Orders

[25] In summary, I make the following Orders:

a. The motion of the respondent, Laurelle Marie Hartley, initially returnable on June 4, 2025 is hereby dismissed.

b. The respondent, Laurelle Marie Hartley, shall forthwith pay costs of the motion as follows:

i. To the applicants, in the amount of $7,500; and,

ii. To the respondent, Concentra Trust as Estate Trustee of the Estate of Nova Joseph Maille, in the amount of $12,500.

c. This matter is referred to the Trial Co-Ordinator, who shall schedule a Case Management Conference at the earliest date available to the parties, their counsel, and the Court. Counsel for the Estate shall take the lead in initiating correspondence between all necessary parties and the Trial Co-Ordinator for the purpose of organizing the conference.

Cullin, J.

Released: July 28, 2025