In a recent Ontario Estates ruling, a self-represented litigant found out the hard way that his lack of legal knowledge and casual non-compliance with the court’s rules and directions all came with a heavy toll: He was ordered to pay $60,000 in legal costs to the opposing party.
The matter involved a dispute between two adult siblings over the Estate of their deceased father. In his Will the father had left 50% to his daughter Melissa, and only 25% percent to his son David. The remaining 25% was to be shared by a niece and nephew. David felt the split should have been 33% for each.
To complicate matters, David had been appointed the Estate Trustee for his father’s Estate, and he was doing an indifferent and lackluster job in that role. In fact, owing to his delay and oversights around paying the Estate’s expenses, he allowed the mortgage on his deceased father’s house to fall into arrears. The lender was now taking active steps to foreclose.
Melissa applied to the court to have David removed as Estate Trustee. David resisted, but the court sided with Melissa. It replaced David with an appointed neutral third party, who would take over the task of settling the Estate matters arising from the litigation.
With Melissa being declared the successful party, the court turned to the matter of the legal costs so far.
Melissa had incurred almost $ 65,000, and had even had to take out some loans to fund the litigation costs. David’s lackadaisical approach to his Estate duties had forced her to have her lawyer attend court at least six times. His rampant delay – which the court found was deliberate and strategic – added significant wasted time and expense for Melissa.
Even adding some leeway for the fact that David was self-represented, the court found his conduct throughout was worthy of reproach. He was cavalier and indifferent about court procedures, and outright ignored the court’s advice and directions he had received along the way. For example, he:
- Did not deliver materials on time.
- Failed to heed the judge’s directions to cooperate around combining various procedural steps to minimize delay and expense – including scheduling a Case Conference.
- Failed to deliver a Notice of Appearance and follow related rules around attending at the hearings.
- Failed to disclose important facts to the court.
- Failed to abide by a timeline previously set by the judge, which resulted in an otherwise-unnecessary motion being brought.
- Ignored the court’s specific instructions around how to finalize an order so that it could be approved by the court.
- Failed to specifically launch the right type of litigation to challenge the father’s Will.
- Appeared at hearings even though he did not file the proper forms giving Notice of Appearance.
The court noted it had given David numerous warnings over time, advising that he should get legal advice. It told him that if he persisted in flouting the court’s rules, he would risk having costs imposed. To make matters worse, David had also made unfounded allegations that Melissa had stolen cash and jewelry from her father, but then refused to put them in writing or advance them in the proper way for litigation purposes. About this last point, the court said:
In the court’s effort to assist unrepresented parties, we all too often ignore procedural niceties. Judges, including me, repeatedly let the respondents participate and make unsworn, nasty allegations while failing to take even the most basic steps required of them.
Ultimately, the court made a hefty costs order, and ruled that David was also disentitled from receiving further notice of any upcoming proceedings. It wrote:
This is a case warranting a costs award on a substantial indemnity basis. [Dean and the niece and nephew] made the applicant [Melissa] incur a very significant amount of costs without ever participating properly or justifying their allegations. It seems to be a case of scorched earth as they … caused the house to fall to the mortgagee even to their own prejudice.
It seems that [Dean and the others] wanted to make scurrilous allegations and then to delay so as to hurt [Melissa] even if it prejudiced them. This is an abuse of the litigation process and deserving of enhanced costs.
Since he was the “principal bad actor”, David was ordered to pay Melissa $60,000 in costs, which included the interest she had to pay on the loans she was forced to take out. (The niece and nephew, who also stood to gain from David’s conduct, were ordered to bear their own share of this). He was also directed to use his share of the eventual Estate proceeds to repay her share of the costs needlessly incurred to defend the lender’s mortgage enforcement actions over the father’s home.
For the full text of the decision, see:
Drennan v. Drennan, 2024 ONSC 3905 (CanLII), <https://canlii.ca/t/k5qjz>