In McCorkell v Roos[1] a recent cost decision by the Ontario Superior Court, the Honourable Justice Muszynski awarded costs of $60,000.00 (inclusive of HST and disbursements) to be paid by the Applicant personally.
Facts:
In the Estate of Irene Florence Lavendure (the “Deceased” or “Estate”), children of the Deceased, Stewart McCorkell (the “Applicant”) and Karen Roos (the “Respondent”) were embroiled with conflict over the Respondent’s actions as then attorney for property and subsequently as estate trustee[2]. At trial, the Applicant sought judgment on his precise entitlement as residual beneficiary of the Estate, to which the Respondent disputed. On the calculation issue, the Respondent argued that the Applicant’s entitlement ought to be less due to her entitlement to compensation as attorney for property and estate trustee and the Applicant’s failure to consider a $22,000 outstanding loan he owed to the Estate.[3]
In summary, the court held in favour of the Respondent and found that the $22,000 was in fact a loan made by the Deceased to her adult son and held on resulting trust for the Estate and that the Respondent was entitled to estate trustee compensation. For a full discussion of the trial judge’s decision in this matter, please see our recent blog post.
The issue of costs came to the court after the parties were unable to come to an agreement. In their respective submissions, the Respondent argued that she should be entitled to full indemnity costs based on her “success in the application, three offers to settle, unfounded allegations of fraud, and her last-minute response to a failed motion”.[4] Meanwhile, the Applicant, argued that he should not have to pay any costs, but in the event he should, that they ought to be payable from the estate.[5]
How the Court approaches costs:
In a determination on costs, the court is guided by section 131 of the Courts of Justice Act [6] and the factors outlined in rule 57.01of the Rules of Civil Procedure [the “Rules”][7].
As a matter of presumption, the court noted the longstanding rule in Ontario civil matters, that a “successful party is entitled to recover a portion of their legal costs from the unsuccessful party”.[8]
As such, the court held that it would be inappropriate to effectively “insulate the Applicant from the negative consequences of his unsuccessful application” by awarding costs against the estate. [9]
Analysis:
In arriving at a determination of costs, the court utilized its discretion and considered the factors in r.57.01 of the Rules, notably the court considered the following:
(1) Offers to settle:
The Respondent served two formal and one informal offer to settle that were all favourable to the Applicant.[10] As such, the formal offers triggered the cost consequences in r.49.10 – and the Respondent’s entitlement to substantial indemnity costs as at the date the first formal offer was served.[11]
(2) Principle of indemnity:
At trial, the Applicant alleged that a purported handwritten note made by the Deceased reading “My son Derek owes me $22,000” was forged (the Applicant also went by the name Derek).[12] However, the court made clear that the Applicant did not prove the note was in fact forged.[13]
The court reiterated that “unfounded, serious allegations of fraud should attract an enhanced scale of costs”, but contended that a substantial, not full, indemnity scale was warranted here.[14]
(3) The conduct of the parties that tended to shorten or lengthen unnecessarily the duration of the proceeding
The court viewed the Applicant favourably in that he made compromises for the litigation to move forward in a targeted manner, whereas the Respondent had caused delays by failing to retain counsel sooner.[15] However, the court expressed its displeasure that such compromises made by the Applicant were not made sooner, necessitating the Respondent’s detailed response to various allegations.[16]
(4) Whether any step in the proceeding was improper or unnecessary:
Following cross-examinations, the Applicant sought to adduce two new affidavits of handwriting experts to advance his forgery claim.[17] The court found such actions in conflict with the Rules and therefore improper.[18]
In addition, the court held that the dispute over the forgery of the handwritten note ought to have been brought to Small Claims Court due to the monetary value in dispute.[19]
Lastly, the Applicant’s request that the Respondent pass her accounts was not necessary considering the Respondent did so informally, which the Applicant for the most part did not dispute the contents of.[20]
Decision on costs:
The Respondent initially sought full indemnity costs of $79,439.23 inclusive of HST and disbursements. However, following a fulsome consideration of the r.57.01 factors, the court ordered that $60,000.00 inclusive of HST and disbursements be paid personally by the Applicant. The court stated that its reduction in the costs sought was reflective of the initial delays caused by the Respondent and hiccups with the Estate administration. The additional fees owing above the amount ordered were proper expenses of the Estate.[21]
Takeaways:
This cost decision highlights the court’s reluctance to order that costs be paid from the estate unless public policy considerations tip the scale in favour of doing so. Most striking, in a modest estate, where the Applicant was claiming an entitlement to approximately $30,000 as a beneficiary, resulted in a $60,000 cost award against him. A cautionary tale indeed where there is a failure to adequately consider offers to settle, unsubstantiated allegations of fraud, and improper litigation conduct.
—
[1] 2026 ONSC 536 (CanLII).
[2] ibid at para 1.
[3] ibid at para 3.
[4] ibid at para 6.
[5] ibid at para 7.
[6] R.S.O. 1990 c. C. 43.
[7] R.S.O. 1990 Reg.194.
[8] note 1 at para 9.
[9] ibid.
[10] ibid at paras 11 & 12.
[11] ibid at para 15.
[12] McCorkell v. Roos, 2025 ONSC 6432 (CanLII), at para 24.
[13] note 1 at para 16.
[14] ibid at para 17.
[15] ibid at paras 22 & 23.
[16] ibid at para 23.
[17] note 12 at paras 29 & 30.
[18] note 1 at paras 24 & 26.
[19] ibid at para 27.
[20] ibid.
[21] ibid at para 29.
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Written by: Jessica Homer
Posted on: February 20, 2026
Categories: Commentary
In McCorkell v Roos[1] a recent cost decision by the Ontario Superior Court, the Honourable Justice Muszynski awarded costs of $60,000.00 (inclusive of HST and disbursements) to be paid by the Applicant personally.
Facts:
In the Estate of Irene Florence Lavendure (the “Deceased” or “Estate”), children of the Deceased, Stewart McCorkell (the “Applicant”) and Karen Roos (the “Respondent”) were embroiled with conflict over the Respondent’s actions as then attorney for property and subsequently as estate trustee[2]. At trial, the Applicant sought judgment on his precise entitlement as residual beneficiary of the Estate, to which the Respondent disputed. On the calculation issue, the Respondent argued that the Applicant’s entitlement ought to be less due to her entitlement to compensation as attorney for property and estate trustee and the Applicant’s failure to consider a $22,000 outstanding loan he owed to the Estate.[3]
In summary, the court held in favour of the Respondent and found that the $22,000 was in fact a loan made by the Deceased to her adult son and held on resulting trust for the Estate and that the Respondent was entitled to estate trustee compensation. For a full discussion of the trial judge’s decision in this matter, please see our recent blog post.
The issue of costs came to the court after the parties were unable to come to an agreement. In their respective submissions, the Respondent argued that she should be entitled to full indemnity costs based on her “success in the application, three offers to settle, unfounded allegations of fraud, and her last-minute response to a failed motion”.[4] Meanwhile, the Applicant, argued that he should not have to pay any costs, but in the event he should, that they ought to be payable from the estate.[5]
How the Court approaches costs:
In a determination on costs, the court is guided by section 131 of the Courts of Justice Act [6] and the factors outlined in rule 57.01of the Rules of Civil Procedure [the “Rules”][7].
As a matter of presumption, the court noted the longstanding rule in Ontario civil matters, that a “successful party is entitled to recover a portion of their legal costs from the unsuccessful party”.[8]
As such, the court held that it would be inappropriate to effectively “insulate the Applicant from the negative consequences of his unsuccessful application” by awarding costs against the estate. [9]
Analysis:
In arriving at a determination of costs, the court utilized its discretion and considered the factors in r.57.01 of the Rules, notably the court considered the following:
(1) Offers to settle:
The Respondent served two formal and one informal offer to settle that were all favourable to the Applicant.[10] As such, the formal offers triggered the cost consequences in r.49.10 – and the Respondent’s entitlement to substantial indemnity costs as at the date the first formal offer was served.[11]
(2) Principle of indemnity:
At trial, the Applicant alleged that a purported handwritten note made by the Deceased reading “My son Derek owes me $22,000” was forged (the Applicant also went by the name Derek).[12] However, the court made clear that the Applicant did not prove the note was in fact forged.[13]
The court reiterated that “unfounded, serious allegations of fraud should attract an enhanced scale of costs”, but contended that a substantial, not full, indemnity scale was warranted here.[14]
(3) The conduct of the parties that tended to shorten or lengthen unnecessarily the duration of the proceeding
The court viewed the Applicant favourably in that he made compromises for the litigation to move forward in a targeted manner, whereas the Respondent had caused delays by failing to retain counsel sooner.[15] However, the court expressed its displeasure that such compromises made by the Applicant were not made sooner, necessitating the Respondent’s detailed response to various allegations.[16]
(4) Whether any step in the proceeding was improper or unnecessary:
Following cross-examinations, the Applicant sought to adduce two new affidavits of handwriting experts to advance his forgery claim.[17] The court found such actions in conflict with the Rules and therefore improper.[18]
In addition, the court held that the dispute over the forgery of the handwritten note ought to have been brought to Small Claims Court due to the monetary value in dispute.[19]
Lastly, the Applicant’s request that the Respondent pass her accounts was not necessary considering the Respondent did so informally, which the Applicant for the most part did not dispute the contents of.[20]
Decision on costs:
The Respondent initially sought full indemnity costs of $79,439.23 inclusive of HST and disbursements. However, following a fulsome consideration of the r.57.01 factors, the court ordered that $60,000.00 inclusive of HST and disbursements be paid personally by the Applicant. The court stated that its reduction in the costs sought was reflective of the initial delays caused by the Respondent and hiccups with the Estate administration. The additional fees owing above the amount ordered were proper expenses of the Estate.[21]
Takeaways:
This cost decision highlights the court’s reluctance to order that costs be paid from the estate unless public policy considerations tip the scale in favour of doing so. Most striking, in a modest estate, where the Applicant was claiming an entitlement to approximately $30,000 as a beneficiary, resulted in a $60,000 cost award against him. A cautionary tale indeed where there is a failure to adequately consider offers to settle, unsubstantiated allegations of fraud, and improper litigation conduct.
—
[1] 2026 ONSC 536 (CanLII).
[2] ibid at para 1.
[3] ibid at para 3.
[4] ibid at para 6.
[5] ibid at para 7.
[6] R.S.O. 1990 c. C. 43.
[7] R.S.O. 1990 Reg.194.
[8] note 1 at para 9.
[9] ibid.
[10] ibid at paras 11 & 12.
[11] ibid at para 15.
[12] McCorkell v. Roos, 2025 ONSC 6432 (CanLII), at para 24.
[13] note 1 at para 16.
[14] ibid at para 17.
[15] ibid at paras 22 & 23.
[16] ibid at para 23.
[17] note 12 at paras 29 & 30.
[18] note 1 at paras 24 & 26.
[19] ibid at para 27.
[20] ibid.
[21] ibid at para 29.
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