Lessard v. Culic et al., 2026 ONSC 1814

Court File and Parties

Court File No.: CV-25-117 Date: 2026-04-02 Ontario Superior Court of Justice

In the Estate of Henry O'Hare, deceased

Between:

Shelley Anne Lessard, also known as Shelley Anne Rosetti Applicant/Moving Party

– and –

Clinton H. Culic, the named Estate Trustee of the Estate of Henry O'Hare Respondent

– and –

Ann Henry Respondent

– and –

Scott Wayne McDonald Respondent

Counsel: Yasime M. Vinogra and Ines Jelic for the Applicant Acting in person Gregory O. Best for the Respondent, Ann Henry Jeremy R. Rubenstein, for the Respondent Scott Wayne McDonald

Heard: In Writing

Justice Maria N. Sirivar

Introduction

1As the successful party on the motion heard on November 25, 2025 (the "Motion"), the Applicant seeks her costs on a substantial indemnity basis, in the amount of $20,708.74, payable personally by the Respondent, Clinton H. Culic.

2The matter arises in the context of an Application concerning the estate of Henry O'Hare, who passed away on November 23, 2023. The Applicant, Shelley Lessard, is a residual beneficiary of the estate and the stepdaughter of the deceased. The Respondents are:

• Scott McDonald, the stepson of the deceased;
• Anne Henry, who was in a relationship with the deceased at the time of his death; and
• Clinton H. Culic, a lawyer, who was appointed as executor of the estate in the last will and testament of the deceased, executed on May 29, 2020.

3At the time of his death, the deceased owned two properties, as well as personal, domestic, and household articles, vehicles, cash, and investments, which the Applicant estimates are valued at more than $1,000,000.

4Ms. Henry and Mr. McDonald did not oppose the motion. The Applicant only sought specific relief against Clinton H. Culic (the "Respondent"). The Applicant alleged that after nearly two years, the Respondent had failed to apply for a certificate of appointment of estate trustee with a will and had not provided information to the Applicant as a residual beneficiary about the estate, assets, debt liabilities, and its administration. The appointment of a neutral Estate Trustee During Litigation ("ETDL") was sought to preserve and protect the estate assets, particularly given that one of the estate's properties is expected to become vacant imminently, and to ensure the timely, transparent, and proper administration of the estate while the litigation is ongoing. Despite being duly served with the motion materials, the Respondent did not attend the motion or file materials.

Positions of the Parties

Applicant

5The Applicant takes the position that she is entitled to her costs on a substantial indemnity basis. An award of $20,708.74 is fair, reasonable, and proportionate in the circumstances. Moreover, it is necessary to indemnify the successful Applicant, to reflect the seriousness of the Respondent's conduct as a fiduciary, and to deter similar behaviour by estate trustees.

6The Applicant submits that there is a pattern of non-responsiveness by the Respondent that has impeded and delayed the proper administration of the Estate. Over an extended period, she made repeated inquiries about the estate's assets, liabilities, administration, and her entitlements that were ignored. Despite having nearly two years to advance the Estate's administration, he provided no accounting, no meaningful information regarding assets and liabilities, or an explanation for the significant delay. The Respondent also failed to file responding materials in accordance with the timetable endorsed by Justice Swartz on October 20, 2025, and did not attend the hearing of the motion.

7The Applicant argues that following the commencement of the litigation, she sought the Respondent's consent to the appointment of an ETDL as well as productions and an accounting. The urgency of appointing an ETDL was highlighted as critical due to the need to manage an Estate property that will become vacant imminently. The Respondent refused to consent and provided no reasons for his refusal. Consequently, the Applicant had no choice but to pursue the motion.

8The Applicant argues that a personal and elevated costs order is warranted because the Respondent's conduct has also caused her to incur high and entirely avoidable legal costs of this motion. A costs award from the estate would be inappropriate and unfair in the circumstances because it would diminish the value of the estate and therefore the interests of the Applicant as a residual beneficiary, effectively forcing her, and the other beneficiaries of the estate, to bear a portion of the financial consequences of the Respondent's unreasonable and unacceptable conduct.

Respondent

9The Respondent did not file a Response to the Cost Submissions in accordance with the timetable endorsed on November 25, 2025. Rather, he sent a letter to the Court on December 29, 2025, where he states that the endorsement "was never properly served upon me by the Court." He explains that he became aware of it when he saw the endorsement in the Applicant's cost materials. On the issue of costs, the Respondent writes, "Steven Cavanagh kindly provided me with his thoughts on costs, which I hereby endorse and incorporate." He then reproduces what appears to be informal correspondence in its entirety.

10The Respondent's response does not lend itself to efficient summary as it is a series of bullet points without law or analysis. The relevant points are as follows:

• The hourly rates charged are "somewhat high," given the years of call and higher than Mr. Callahan, who was called in 1980;
• The number of hours also "seems a bit high" given that the affidavit was prepared as part of the application materials
• Costs should be partial indemnity, as substantial indemnity costs are very exceptional.
• Had the Respondent been presented with a no-damages and no-costs option to resign, he would have taken it (this is written in all CAPS).
• "Finally, the November 25, 2025, scheduling error was caused by the unknown inclusion into my Outlook of an all-day charitable event that my firm was sponsoring, the inclusion of which had the effect of overriding and deleting the hearing date."

Law and Legal Principles

11The Court's authority to order costs is found in s. 131 of the Courts of Justice Act,¹ and Rule 57 of the Rules of Civil Procedure.² Modern cost rules are designed to achieve three objectives: to indemnify successful litigants for the costs of litigation; to encourage settlement; and to discourage and sanction inappropriate behaviour by litigants.³ Cost awards are discretionary. In exercising its discretion, the Court may consider the factors set out in Rule 57.01.

12In the context of estate litigation, the civil litigation cost regime applies unless the Court finds that the following public policy considerations warrant an exception: the need to give effect to valid wills that reflect the intention of competent testators; and the need to ensure that estates are properly administered.⁴

13An award of costs may be appropriate as a sanction for the conduct of one or more of the parties to the litigation, including against an estate trustee. Conduct worthy of sanction includes fraud or attempted fraud, conduct that unnecessarily increases the costs of the litigation, and undue influence.⁵ Depending on the nature and severity of the conduct, costs may be ordered on a partial or substantial indemnity basis.⁶

Analysis and Conclusion

14I find that the Applicant is entitled to her costs on a substantial indemnity basis in the amount of $20,708.74 to be paid by the Respondent personally. This conclusion is fair, reasonable, and proportionate in the circumstances. In so concluding, I rely, in part, on the following undisputed facts:

• The Applicant is entitled to her costs.
• Costs should be paid by the Respondent personally.
• The percentages used by the Applicant to calculate partial and substantial indemnity costs are appropriate.
• A pattern of non-responsiveness by the Respondent has impeded and delayed the proper administration of the estate.
• The Respondent's conduct caused the Applicant to incur the costs of the motion.
• The Respondent, while having taken no steps to administer the estate in the past two years, refused to consent to the appointment of an ETDL pending adjudication of the Application on its merits. No reasoning was provided for the refusal.
• This refusal necessitated the bringing of the Motion and caused the Applicant to incur significant costs.

15I reject the Respondent's submissions entirely. He takes what can be characterized as a brainstorming correspondence and reproduces it without explanation or analysis. He did not cite any law, nor did he respond to the Applicant's submissions.

16The Respondent does not take a position on whether costs from a previous attendance were improperly included. Rather, he raises the issues in the notes he reproduced and leaves it to the Court to determine. The Respondent criticizes the hourly rates in the Bill of Costs as somewhat high but fails to specify what an appropriate rate would be. Similarly, he criticizes the number of hours spent without specifying how many hours ought to have been spent.

17I find that the Respondent's conduct warrants an elevated cost order. In addition to failing to file materials and attend the hearing, the Respondent's approach to the issue of costs is very concerning. His submissions were late without a reasonable explanation and failed to properly respond to the Applicant's detailed, well-prepared materials. He alluded to having failed to attend the hearing of the motion but did not expressly acknowledge or apologize for it. He failed to explain why he did not file materials, as endorsed. This behaviour reflects a lack of respect for this process and the Court.

18I accept the Applicant's submission that an award of substantial indemnity costs is fair, reasonable, and proportionate in the circumstances. It is necessary to indemnify the successful Applicant, to reflect the seriousness of Mr. Culic's conduct as a fiduciary, and to deter similar behaviour by estate trustees.

19Based on the foregoing, the Court orders:

The Respondent, Clinton H. Culic, personally shall pay costs to the Applicant Shelley Lessard, on a substantial indemnity basis in the amount of $20,708.74 forthwith pursuant to section 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

Footnotes

1. 1R.S.O. 1990, c. C.43
2. 2RRO 1990, Reg 194 [Rules]
3. 3Fong v. Chan, (1999), 1999 CanLII 2052 (ON CA), 46 OR (3d) 330, (ONCA).
4. 4Sawdon Estate v. Sawdon, 2014 ONCA 101; McDougald Estate v. Gooderham, 2005 CanLII 21091 (ON CA), [2005] O.J. No. 2432, (C.A.).
5. 5Sawdon Estate v. Sawdon, 2014 ONCA 101 at para. 99; Bayford v. Boese, 2021 ONCA 533
6. 6Anroop v. Naqvi, 2026 ONCA 142.