SUPERIOR COURT OF JUSTICE - ONTARIO
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.
RE: CV-21-25108-00ES
TERRY ROBERTS, Applicant -and- MICHAEL COWIE, Objector
RE: CV-24-3555-00
MICHAEL COWIE, Applicant -and- TERRY ROBERTS, Respondent
COUNSEL: Adrien Cameron, for the Applicant/Respondent, T. Roberts
N. Mukherjee, for the Objector/Applicant, M. Cowie
BEFORE: Justice A.K. Mitchell
HEARD: January 26, 2026 via video conference
ENDORSEMENT
Overview
1On this motion, Terry Roberts (“Mr. Roberts”) seeks summary judgment dismissing the motion for directions having Court file no. CV–21–25108–00ES (the “Motion”) and application for directions having Court file no. CV–24–3555–001 (the “Application”) brought by Michael Cowie (“Mr. Cowie”) on the basis both proceedings are statute-barred. Incidental to the main relief, Mr. Roberts seeks consolidation of the Motion and the Application or hearing of the two matters one after the other. This latter relief was granted with the consent of Mr. Cowie.
Background Facts
2The material facts are not in dispute. They are as follows.
3Catherine Cowie (“Catherine”) and Mr. Cowie are first cousins. Mr. Cowie resides in the United Kingdom.
4Tim Roberts (“Tim”) was the common law husband of Catherine. Tim and Mr. Roberts were brothers. Mr. Roberts was Catherine’s brother-in-law. Mr. Roberts resides in Ilderton, Ontario.
5Catherine executed a will on May 31, 2019 (the “May Will”). Under the May Will, Tim, if he survived Catherine, was to receive the residue of her estate. If he did not survive her, Mr. Cowie, was to receive the residue of her estate.
6Tim predeceased Catherine on November 5, 2019.
7Following Tim’s death, Catherine executed a second will on December 20, 2019 (the “December Will”). In the December Will, Catherine left the residue of her estate to Mr. Roberts, if he survived her. If he did not survive her, then Mr. Cowie was to receive the residue of the estate. Mr. Roberts was named as Catherine’s estate trustee under the December Will.
8Catherine died on August 17, 2021.
9On August 27, 2021, Mr. Cowie was provided with copies of both wills. Mr. Cowie is a contingent beneficiary under the wills.
Motion for Directions - CV–21–25108–00ES
10Rule 75 of the Rules of Civil Procedure (the “Rules”) governs contentious estate proceedings. Pursuant to r. 75.03 of the Rules, 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.
11If 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). To preserve the objection, the objector must file an appearance within 20 days after notice.
12Pursuant to r. 75.03(1), Mr. Cowie filed a Notice of Objection dated September 16, 2021, alleging that the December Will was not duly executed or, alternatively, was executed under undue influence, and, further, that Catherine lacked testamentary capacity and knowledge and approval of her will.
13On October 29, 2021, Mr. Roberts applied for a certificate of appointment of estate trustee pursuant to r. 74.042. The estate qualified as a small estate. As a result of Mr. Cowie’s Objection, a Certificate of Appointment of Estate Trustee was not issued.
14As required by the Rules, Mr. Roberts served a Notice to Objector on Mr. Cowie on November 22, 2021. In response and to preserve his objection, Mr. Cowie filed a Notice of Appearance on December 8, 2021 as required by r. 75.03(4) of the Rules.
15Rule 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. Pursuant to r. 75.06 (2), a motion for directions shall be served on all persons appearing to have a financial interest in the estate.
16Approximately 2 ½ years passed and neither Mr. Roberts nor Mr. Cowie moved for directions. Eventually, Mr. Cowie moved for directions on April 2, 2024.3
17In response, Mr. Roberts brought this motion seeking security for costs of and summary judgment with respect to the Motion (and, later, the Application).
Application for Directions - CV–24–3555-00
18Mr. Cowie’s motion for directions was heard August 23, 2024. Counsel agreed on most terms of a proposed order including a timetable for the outstanding motions. However, Mr. Cowie objected to serving and filing a separate Notice of Application pursuant to r. 75.06(1). He claimed that to do so would result in a multiplicity of proceedings contrary to s. 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court disagreed with Mr. Cowie’s position.
19By decision released September 20, 20244, the court ordered Mr. Cowie to issue an application for directions pursuant to r. 75.06(1) within 45 days, without prejudice to Mr. Roberts pursuing his motion to dismiss such application on grounds it was statute-barred.
20On October 7, 2024, Mr. Cowie served a Notice of Motion for Leave to Appeal the September 20th order insofar as it directed him to commence an application for directions. On November 13, 2024 and with the consent of the parties, the court adjourned the leave motion until after disposition of Mr. Roberts’ cross-motion for security for costs and summary judgment.
21As directed by the court, Mr. Cowie filed a Notice of Application for Directions under r. 75.06. The notice of application was issued on November 19, 2024.5
22The parties consented to an order adjourning the Application on the same terms as the adjournment of the Motion.
Positions of the Parties
23Mr. Roberts’ position is straightforward. He submits that each of the Motion and the Application is a “proceeding in respect of a claim” (as that phrase is utilized in the Limitations Act, 20026) commenced greater than two years after the date on which Mr. Cowie discovered his claim. As such, Mr. Cowie’s claim is statute barred by virtue of the application of ss. 4 and s. 5 of the Act. Moreover, Mr. Roberts says I am bound by principle of horizontal stare decisis and must accept and apply the legal findings made in Bristol v. Bristol7.
24Mr. Cowie’s position is more nuanced. He argues the Act has no application as neither the Motion nor the Application is a “proceeding in respect of a claim”. Specifically, he submits that a challenge to the validity of a will is not a “claim” for purposes of the Act. Last, Mr. Cowie says the decision in Bristol is not binding as the court did not deal with the same issues as are before me in this case.
Issues
25The main issue to be determined is whether Mr. Cowie’s challenge to the validity of the December Will is statute-barred by virtue of the application of the Act?
26Corollary to the main issue are the following issues:
(i) Is the Motion and/or the Application a “proceeding” for purposes of the Act?
(ii) If either the Motion and/or the Application is a “proceeding”, is a will challenge a “claim” as that term is defined by the Act?
Analysis
27The parties agree that the issues on this motion do not require a trial for their determination and may be decided using the summary mechanism provided for in r. 20 of the Rules.
28Pursuant to r. 20.04(1) of the Rules, “[t]he court shall grant summary judgment if, the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment”.
29Limitation periods are creatures of statute and serve three purposes: (1) to promote accuracy and certainty in the adjudication of claims; (2) to provide fairness to persons who may be required to defend against claims based on stale evidence; and (3) to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion.8
30Bearing these policy reasons in mind, I will address whether the Act applies to bar the Motion and/or the Application.
Limitations Act, 2002
31The relevant portions of the Act are as follows:
1 “claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.
4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
5 (1) a claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
No limitation period
16 (1) There is no limitation period in respect of,
(a) a proceeding for a declaration if no consequential relief is sought.
Is the Motion and/or the Application a “proceeding” for purposes of the Act?
32The Act only applies to proceedings. If a step taken by a party does not constitute a “proceeding”, the Act does not bar a party from taking such step.
33As was articulated in Giglio v. Peters9 at paras. 20-21 and 23:
[20] Here the word “proceeding” appears in the statute that, as Battiston points out, seeks to bar stale claims. However, in the context of a prescriptive statute, the legislation seeks to bar the commencement of stale litigation, not steps within litigation that has been commenced within the statutory time period.
[21] In the light of this context and the statute’s purpose, and in the absence of any definition of “proceeding” in the statute itself, successive panels of this Court have turned to the definition of “proceeding” in the Rules of Civil Procedure. Both Feldman J.A. in Meady v. Greyhound Canada Transportation Corp. (2008), 2008 ONCA 468, 90 O.R. (3d) 774 (C. A.) and later Simmons J. in Placzek v. Green (2009), 2009 ONCA 83, 245 O.A.C. 220 (C.A.), have held that the word “proceeding” in s. 4 of the Limitations Act, 2002 has the same meaning as “proceeding” in r.1.03 of the Rules of Civil Procedure.
[23] Under these definitions, a motion within an action is not a “proceeding”. Indeed, motion is defined in r. 1.03(1) to mean “a motion in a proceeding or an intended proceeding”…
34Rule 1.03(1) of the Rules defines “proceeding” to mean an action or application. Applying this definition, I find Mr. Roberts’ application for a certificate of appointment of estate trustee constitutes a “proceeding” pursuant to r. 1.03(1) of the Rules. However, Mr. Cowie’s Objection, Notice of Appearance and Motion (i.e., motion for directions) do not.
35The Notice of Objection serves as a form of “defence” to the applicant’s application to “propound” the will under which the applicant seeks to be appointed executor and carry out the testator’s wishes. The Objection contains unproven allegations in the same manner as a statement of defence filed in response to a statement of claim in an action.10 In this case, Mr. Cowie alleges the December Will was executed under duress and that Catherine lacked testamentary capacity and knowledge and approval of the will.
36The Notice of Appearance is a procedural, not substantive, document which preserves an objector’s standing on the application to appoint an estate trustee. The motion for directions is a step in the application which provides the vehicle by which the court provides guidance and direction to the parties as to the appropriate procedure for determining the substantive issues raised in the Objection. Rule 75.06(3) provides that on an application or motion for directions, the court may direct,
(a) the issues to be decided;
(b) who are parties, who is plaintiff and defendant and who is submitting rights to the court;
(c) who shall be served with the order for directions, and the method and times of service;
(d) procedures for bringing the matter before the court in a summary fashion, where appropriate;
(e) that the plaintiff file and serve a statement of claim;
(f) that an estate trustee be appointed during litigation, and file such security as the court directs; and
(g) such other procedures as are just. (emphasis added)
37An order giving directions must be in prescribed form.11 Such order is wholly procedural in nature.
38I find that none of an objection, notice of appearance or notice of motion for directions commences a “proceeding” as that term is defined in the Rules. Having regard to the definition of “proceeding” and the definition of “originating process” in r. 1.03, an application for directions is a “proceeding” and a notice of application for directions an “originating process”.
39Therefore, only the Application is a “proceeding” for purposes of the Act.
Is a will challenge a “claim” for purposes of the Act?
40Having found the Application is a “proceeding”, leads me to the broader question of whether a will challenge is a “claim” caught by the Act.
41As earlier noted, Mr. Roberts relies heavily on the decision in Bristol to support his position that Mr. Cowie’s challenge of the December Will is statute-barred. He submits that I am bound by the legal findings made by the court in Bristol pursuant to principles of “horizontal” stare decisis.12
42In Bristol the respondent sought to dismiss the notice of application and the applicant’s notice of objection on grounds that same were statute-barred. The deceased’s first will divided her estate equally between her ten children, including the applicant and the respondent. Two years later, a new will was prepared in which she named the respondent as the sole beneficiary of her estate. Prior to the respondent’s application for a certificate of appointment, the applicant filed a notice of objection on behalf of herself and four siblings. The applicant challenged the later will on grounds her mother lacked testamentary mental capacity at the time she executed the will and/or executed the will under undue influence. The respondent served notice to the applicant as Objector, and the applicant filed a notice of appearance in the respondent’s application. No further steps were taken by either the applicant or the respondent until approximately two years later when the applicant filed a motion for directions. At the hearing of the motion, the Court directed that the applicant issue an application without prejudice to the respondent to argue the application was statute-barred.
43The facts in Bristol are identical to the facts of this case; however, the issues before the court in Bristol were materially different. Of note, applicant’s counsel did not raise as an issue whether the applicant’s challenge to the validity of her mother’s later will constituted a “claim” for purposes of the Act. Rather, all parties (and the court) in Bristol proceeded on the basis that the applicant’s will challenge was a “claim”. The parties focused their argument on the issues as to when the applicant’s “claim” was discoverable and whether the filing of a Notice of Objection and/or a motion for directions was a “proceeding” which effectively stopped the limitations clock from running.
44The court in Bristol was not specifically requested to and did not address the issue of whether a will challenge is a “claim” as that term is defined in s. 1 of the Act. Consequently, any of the court’s comments in Bristol touching upon this issue are obiter. With respect to the principle of “horizontal” stare decisis, I am guided by the following commentary13:
Much will depend upon the nature of the trial decision relied upon as a precedent. If it is fully and carefully considered decision based upon full argument and obviously intended to provide guidance for the future, certainty and predictability favour standing by that decision.
There are, however, good reasons why the doctrine of precedent does and should allow room for one trial judge to depart from a colleague’s decision. The job of a trial judge is to find the facts and focus on the demands of justice in each particular case. Trial judges know that their decisions will be cited as authority and subsequent cases, but their essential and primary task is to focus on the details of the case they have to decide rather than to settle the law. In most instances, they decide the case and write their reasons accordingly. While the interests of certainty and predictability militate in favour of adhering to decisions of coordinate authority, imposing a strict requirement on trial judges to follow decisions of their colleagues would, I think, introduce a level of undue rigidity.
45Counsel has been unable to refer me to any binding (vertical) jurisprudence which squarely addresses this issue.14 I find I am not bound to apply the court’s findings in Bristol on the basis of principles of horizontal stare decisis as Mr. Roberts’ counsel argues because the court in Bristol did not receive argument on the issue of whether a will challenge is a “claim” for purposes of the Act. Rather, the court and the parties proceeded on the assumption that the Act applied to will challenges.
46Under the Act, “claim” means “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”.
47An application for the appointment of estate trustee (colloquially known as an application for probate), invokes the court’s jurisdiction to ascertain and pronounce what documents constitute the testator’s last will and are entitled to be admitted to probate. As was noted by the Court of Appeal in Neuberger, at paras. 68 and 118:
[68] …[T]he granting of probate does not bind only the parties to the proceeding. Unless and until probate is set aside, it operates in rem and can affect the rights of other persons. The court also has a special relationship to the testator, who cannot be present to give voice to his or her true intentions.
[118] In private law, estoppel is animated by the goal of creating transactional certainty between private parties in civil disputes. A will, however, is more than a private document. As explained above, a dispute about a will’s validity engages interests that go beyond those of the parties to the dispute and extend to the testator and the public. Once a testamentary instrument is probated, it speaks to society at large. Probate is an in rem pronouncement that the instrument represents the testator’s true testamentary intentions and that the estate trustee has lawful authority to administer the estate. Because of this, the Court has a responsibility to ensure that only wills that meet the hallmarks of validity are probated. It owes that duty to the testators, whose deaths preclude them from protecting their own interests, to those with a legitimate interest in the estate, and to the public at large. If the doctrine of estoppel were available to bar a party from having the validity of a will determined, the court’s ability to discharge that responsibility would be in jeopardy.15
48In rem proceedings include proceedings taken pursuant to statutory provisions that are a matter of public benefit and that do not generate a claim to a legal remedy or correspond to legal rights held by individual claimants.16 Probate proceedings are in rem proceedings undertaken for the benefit of the public at large and, therefore, do not generate claims to remedy an injury, loss or damage that occurred as a result of an act or omission. In his objection, Mr. Cowie is not claiming he has suffered an injury, loss or damage arising from an act or omission of Mr. Roberts. Rather, he is requiring Mr. Roberts to prove the validity of the December Will. I find that the Act does not apply to proceedings seeking to declare a will to be valid or invalid.
49Although decided under the former limitations legislation, the court Oestreich v. Brunnhuber17 arrived at the same conclusion. At para. 17, the court wrote:
There are no time limitations by statute within which a person with a financial interest in an estate may require a will to be proved in solemn form. For example, The Statute of Limitations Act, R.S.O. 1990, C. L15, affects claims relating to the assets of the estate, but not to the declaring of a will to be valid or invalid. The beneficiary who delays in attacking the will runs the risk that the assets may have already been distributed and that tracing procedures may have to be undertaken.
50If I am wrong and a will challenge is a “claim” to which the Act applies, I will consider whether the relief sought on the Application is consequential (as opposed to declaratory) in nature such that the Act applies pursuant to s. 16 of the Act.
51Since the application for directions was court-ordered (over the objection of Mr. Cowie) as part of the relief granted on the return of the motion for directions, the nature of the relief sought on the motion is the starting point.
52The relief sought by Mr. Cowie on the Motion mirrors the procedural relief authorized pursuant to r. 75.06(3) of the Rules. The notice of motion reads, in part:
The motion is for directions with respect to: who is the plaintiff and who is the defendant; authorization for the plaintiff to obtain information from third parties; whether the plaintiff may file and serve a statement of claim; whether costs should be paid by the estate; and whether an estate trustee should be appointed during litigation.
The grounds for the motion are rules 75.03 and 75.06 and the moving party’s belief that the will of the deceased, dated December 20, 2019, filed in the application by the respondent is invalid due to the exercise of undue influence or lack of capacity on the part of the deceased. The moving party argues that the valid will of the deceased is the earlier one dated May 31, 2019.
53No substantive relief was claimed on the Motion.
54To comply with the terms of the court’s order made September 20, 2024 (currently under appeal), Mr. Cowie filed (under protest) a Notice of Application for Directions containing the following prayer for relief:
- The applicant makes application for:
(a) An order directing the Registrar to issue letters of administration with the will annexed (a “Certificate of Appointment of Estate Trustee With a Will”), in respect of a copy of the Deceased’s last will and testament dated May 31, 2019, to such person resident in Ontario as the Applicant shall hereafter pray.
(b) In the alternative to (a) above, an order directing the Registrar to issue letters of administration annexed (a “Certificate of Appointment of Estate Trustee Without a Will”) , in the Deceased’s estate to such person resident in Ontario as the Applicant shall hereafter pray;
(c) an order requiring the Respondent to produce before the Registrar any paper or writing being or purporting to be testamentary in relation to the Deceased in his possession or under his control;
(d) an order citing the Respondent to propound the document dated December 20, 2019, purporting to be the Deceased’s last will and testament and any other writing purporting to be testamentary in relation to the Deceased in which he is named as executor, or under which he has an interest, and to enter an appearance to prove the same in solemn form, or else to show cause why letters of administration should not be issued as prayed in (a) and (b) above;
(e) an order directing a trial and/or other manner of disposition of the issues that shall be in dispute between the parties with respect to any purported will that the Respondent may propound;
(f) an order directing that the parties shall have liberty to exercise for the purposes of these proceedings any right that the Deceased if still living would have to required production and/or disclosure of documents and/or information from non-parties;
(g) an order for discovery, and for non-party discovery of the solicitor or solicitors retained to prepare any of the purported will of wills that the Respondent may propound;
(h) an order requiring the assets of the Deceased’s estate to be preserved;
(i) and order appointing an estate trustee during litigation;
(j) an order directing the parties shall have liberty to apply by motion for such other directions as shall appear necessary to the final disposition of the relief herein sought.
55On a plain reading of the notice of application for directions, the requested relief includes in rem (paragraphs (a), (b), (d), and (h)) and procedural (paragraphs (c), (e), (f), (g), (i), and (j)) relief.
56Mr. Roberts takes the position that the relief claimed by Mr. Cowie in the Application is consequential and, therefore, the proceeding is statute-barred by virtue of s. 4 of the Act. Mr. Roberts’ counsel referred me to the decision in Leibel v. Leibel18 as support for this position. I find that Leibel is readily distinguishable. In Leibel, the primary will of the deceased had been probated, a certificate of appointment of estate trustee had been issued and assets had been distributed, all before the applicant commenced his proceeding seeking to challenge the will to allow for a greater distribution of assets to him.
57In Leibel, the applicant sought relief against the respondent in his capacity as executor of the estate in addition to declaratory relief with respect to the validity of the will. The relief sought included an order revoking the grant of the certificate of appointment of estate trustees with a will; an order removing the estate trustees; an order that the estate trustees pass their accounts; an order appointing an estate trustee during litigation; and an order for damages in negligence against the drafting solicitor and her law firm. The court in Leibel found all requested relief to be consequential in nature. In finding that the application was out of time, the court noted the applicant’s actions and his receipt of various bequests to him under the probated wills was conduct which suggested to the estate trustees that he accepted the terms of the wills which he later sought to challenge.
58By contrast, Mr. Roberts has not been appointed executor, and the December Will has not been probated. No distributions have been made. Although entitled to move for directions upon receipt of Mr. Cowie’s notice of appearance pursuant to r. 75.03(6), Mr. Roberts did not do so. In fact, neither Mr. Roberts nor Mr. Cowie took any step to validate or invalidate the December Will, as the case may be, until Mr. Cowie moved for directions in April 2024.
59I find that the principles in Leibel apply only in circumstances where a will has been probated and a party with a financial interest under such will then seeks to challenge the validity of the will ex post facto.
60The facts of this case are more closely aligned with the facts in Piekut v. Romoli19. In Piekut the Ontario Court of Appeal upheld the decision of the motions judge dismissing the respondent’s summary judgment motion seeking to dismiss the applicant’s challenge to the will as being statute-barred. In dismissing the appeal, the court distinguished the facts in Leibel stating:
[13] In contrast, in this case Helen sought none of this consequential relief. Nor has anyone done anything to propound the will. It sat there for seven years, presumably because the siblings were all trying to work out their disagreements. In these circumstances, Helen was entitled to seek declaratory relief, simply to establish the validity, or lack of validity, of the codicils – to define the rights of the parties in order to avoid future disputes.
61To dismiss the Application on the basis it is “out of time” would lead to an absurd result – Mr. Cowie’s objection to the December Will would never be tested and Mr. Roberts’ application for a certificate of appointment would proceed on an uncontested basis. That is, the December Will would be probated (propounded) in circumstances where it may have been executed by Catherine under duress and/or without testamentary capacity. To do so would be contrary to the public interest as being contrary to the wishes of the testator.
Disposition
62For these reasons, the motion for summary judgment is dismissed. On consent of the parties, an order shall issue consolidating the Motion and the Application and directing that they be heard together or one after the other as directed by the application’s judge.
63Mr. Cowie successfully opposed this motion for summary judgment and, thus, is presumptively entitled to his costs of the motion. In the event the parties are unable to agree as to entitlement, source of payment and/or quantum of costs, I will entertain brief written submissions as follows:
(a) Mr. Cowie shall serve and file his submissions, not exceeding 5 pages’ in length exclusive of any caselaw, costs outline and/or time dockets, within 15 days;
(b) Mr. Roberts shall serve and file his responding submissions, not exceeding 5 pages’ in length exclusive of any caselaw, costs outline and/or time dockets, within 10 days thereafter; and
(c) reply submissions, if any, not exceeding 3 pages’ in length, shall be served and filed by Mr. Cowie within 5 days thereafter.
Justice A.K. Mitchell
Date: March 9, 2026
Footnotes
- For reasons unknown, the Notice of Application with respect to the court-ordered application for directions was not issued with the same court file number as the estate litigation.
- Rule 74 of the Rules governs non-contentious estate proceedings.
- Mr. Cowie served Mr. Roberts with a motion for directions in October 2023. However, the notice of motion contained no return date, and the motion record was not filed with the court.
- Cowie v. Roberts, 2024 ONSC 5216.
- Mr. 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]”.
- S.O. 2002, c. 24, Sch. B (the “Act”).
- 2020 ONSC 1684 (“Bristol”).
- Mancinelli v. Royal Bank of Canada, 2017 ONSC 7384 at para. 7.
- 2009 ONCA 681.
- As was noted in Bristol at para. 19 (quoting with approval from Re McDevitt, [1913] O.J. No. 789), the Notice of Objection may also be considered a caveat which stops probate or administration from being granted without notice to or knowledge of the person who enters it.
- See r. 75.06(4). Form 75.8.
- R. v. Sullivan, 2002 SCC 19, at paras. 65-66, 73-75, and 86.
- Robert J. Sharpe, Good Judgment: Making Judicial Decisions (Toronto: University of Toronto Press, 2018), at p. 155.
- See Neuberger v. York, 2016 ONCA 191 (“Neuberger”) at para. 113, footnote 14 where the court states: “Nothing in these reasons is to be taken as having decided whether the Limitations Act applies to the bringing of an application under Rule 75.”
- Consistent with probate proceedings being in rem, a court cannot pronounce against a will on consent or in default. A court must be satisfied on the evidence that the will is invalid: see Otis v. Otis, (2004) 7 ETR (3d) 221 (Ont. S.C.), at para. 26.
- See Lagana v. 2324965 Ontario Inc., 2025 ONCA 607 where the court found that a corporation’s statutory obligation to its shareholders to provide audited financial statements (pursuant to the OBCA) does not generate a claim to a legal remedy for the purposes of the Limitations Act. See also Re Temple, 2012 ONSC 378 where the court held that the Limitations Act, 2002, is not applicable to bankruptcy applications which are proceedings brought for the benefit of all creditors of the debtor not only the applicant creditor.
- (2001) 38 ETR (2d) 82 (Ont. S.C.).
- 2014 ONSC 4516 (“Leibel”).
- 2020 ONCA 26 (“Piekut”).