In Lessard v. Culic,[1] the Court imposed substantial indemnity costs on an Estate Trustee, personally, for delay in the administration of an Estate.
Background
The proceedings arose from the estate of Henry O’Hare, who died on November 23, 2023. At death, the Deceased owned two real properties and other assets that exceeded $1,000,000.[2]
In his Last Will and Testament, he named the Respondent, Mr. Culic, as his Estate Trustee. In the two years following the Deceased’s death, Mr. Culic had not applied for a certificate of appointment or provided information regarding assets, liabilities, or administration to the beneficiaries. This included the Applicant, Ms. Lessard, who was the Deceased’s stepdaughter, and a residual beneficiary of his Estate.[3]
Ms. Lessard successfully moved to appoint a neutral Estate Trustee During Litigation (ETDL) to preserve the Estate’s assets and deal with one of the real properties which had become vacant, given the inaction by Mr. Culic. Mr. Culic did not file materials, respond to, or attend the motion, despite being served with notice of same.[4]
Following success on the motion, the Applicant sought substantial indemnity costs of $20,708.74 payable personally by Mr. Culic, citing a pattern of non‑responsiveness that impeded administration and necessitated the motion. In response, Mr. Culic sent a letter reproducing informal bullet‑pointed comments, critiquing rates and hours in general terms and asserting that substantial indemnity costs were only awarded in exceptional situations. He also stated an Outlook “scheduling error” caused his non‑attendance at the ETDL motion and suggested he would have resigned had a “no‑damages and no‑costs” option been presented.[5]
Cost principles
The central issue in Lessard to be determined was the allocation of legal costs of Ms. Lessard’s Motion.
The discretion of a judge to determine by whom and to what extent costs shall be paid are set out in section 131 of the Courts of Justice Act.[6] In exercising this discretion, a court may consider, in addition to the results and any offers to settle, a series of factors set out in Rule 57.01 of the Rules of Civil Procedure.[7]
The general costs rules for civil litigation apply equally to estates litigation – the loser pays. This is subject to a court’s consideration of all relevant factors under Rule 57, and subject to limited exceptions, which includes: (1) the need to give effect to valid wills that reflect the intention of competent testators; and (2) the need to ensure that estates are properly administered.[8]
In Goodman Estate v. Geffen,[9] the Supreme Court of Canada noted that “the courts have long held that trustees are entitled to be indemnified for all costs, including legal costs, which they have reasonably incurred. Reasonable expenses include the costs of an action reasonably defended.”[10]
Rule 57.01(4) permits a judge to award elevated levels of costs, including substantial and full indemnity, “where the losing party has engaged in behaviour worthy of sanction.”[11] Elevated costs should only be awarded where “there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.”[12]
Analysis
The Court found that substantial indemnity costs were fair, reasonable, and proportionate, when considering the facts in Lessard.[13]
In this regard, the Court noted the Applicant’s entitlement to costs, a pattern of non‑responsiveness impeding administration by Mr. Culic as the Estate Trustee; his refusal—without reasons—to consent to an ETDL despite inaction for nearly two years; and that his conduct necessitated the motion and costs incurred.[14]
The Court rejected Mr. Culic’s submissions entirely, noting the absence of legal authority, analysis, specificity on appropriate rates or hours, and the failure to engage with the Applicant’s materials. The Court described his late and inadequate submissions, failure to attend without reasonable explanation, and failure to file materials, as reflecting a lack of respect for the process and the Court, warranting an elevated order.[15]
Concluding Comments
The Court ordered that Mr. Culic shall personally pay the Applicant’s costs in the amount of $20,708.74. The Court concluded that substantial indemnity was necessary to indemnify the successful Applicant, reflect the seriousness of the fiduciary’s conduct, and deter similar behaviour by estate trustees.[16]
Lessard highlights the Court’s readiness to sanction fiduciaries whose conduct delays and complicates estate administration, particularly where neutral interim management is resisted without reason.
—
[1] Lessard v. Culic, 2026 ONSC 1814 (“Lessard”).
[2] Lessard at para 2.
[3] Lessard at para 4.
[4] Ibid.
[5] Lessard at paras 9 and 10.
[6] Courts of Justice Act, RSO 1990, c C.43.
[7] Rules of Civil Procedure, RRO 1990, Reg 194.
[8] Sawdon Estate v. Sawdon, 2014 ONCA 101 at para 84.
[9] Goodman Estate v. Geffen, 1991 CanLII 69 (SCC).
[10] Goodman Estate v. Geffen, 1991 CanLII 69 (SCC) at para 75.
[11] Davies v. Clarington (Municipality) et al., 2009 ONCA 722 at para 28; Dewaele v. Roobroeck, 2021 ONSC 1604 (CanLII) at para 19.
[12] Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 134.
[13] Lessard at para 14.
[14] Lessard at paras 14 and 15.
[15] Lessard at paras 15 – 17.
[16] Lessard at para 19.
Written by: Oliver O'Brien
Posted on: August 27, 2026
Categories: Commentary, WEL Newsletter
In Lessard v. Culic,[1] the Court imposed substantial indemnity costs on an Estate Trustee, personally, for delay in the administration of an Estate.
Background
The proceedings arose from the estate of Henry O’Hare, who died on November 23, 2023. At death, the Deceased owned two real properties and other assets that exceeded $1,000,000.[2]
In his Last Will and Testament, he named the Respondent, Mr. Culic, as his Estate Trustee. In the two years following the Deceased’s death, Mr. Culic had not applied for a certificate of appointment or provided information regarding assets, liabilities, or administration to the beneficiaries. This included the Applicant, Ms. Lessard, who was the Deceased’s stepdaughter, and a residual beneficiary of his Estate.[3]
Ms. Lessard successfully moved to appoint a neutral Estate Trustee During Litigation (ETDL) to preserve the Estate’s assets and deal with one of the real properties which had become vacant, given the inaction by Mr. Culic. Mr. Culic did not file materials, respond to, or attend the motion, despite being served with notice of same.[4]
Following success on the motion, the Applicant sought substantial indemnity costs of $20,708.74 payable personally by Mr. Culic, citing a pattern of non‑responsiveness that impeded administration and necessitated the motion. In response, Mr. Culic sent a letter reproducing informal bullet‑pointed comments, critiquing rates and hours in general terms and asserting that substantial indemnity costs were only awarded in exceptional situations. He also stated an Outlook “scheduling error” caused his non‑attendance at the ETDL motion and suggested he would have resigned had a “no‑damages and no‑costs” option been presented.[5]
Cost principles
The central issue in Lessard to be determined was the allocation of legal costs of Ms. Lessard’s Motion.
The discretion of a judge to determine by whom and to what extent costs shall be paid are set out in section 131 of the Courts of Justice Act.[6] In exercising this discretion, a court may consider, in addition to the results and any offers to settle, a series of factors set out in Rule 57.01 of the Rules of Civil Procedure.[7]
The general costs rules for civil litigation apply equally to estates litigation – the loser pays. This is subject to a court’s consideration of all relevant factors under Rule 57, and subject to limited exceptions, which includes: (1) the need to give effect to valid wills that reflect the intention of competent testators; and (2) the need to ensure that estates are properly administered.[8]
In Goodman Estate v. Geffen,[9] the Supreme Court of Canada noted that “the courts have long held that trustees are entitled to be indemnified for all costs, including legal costs, which they have reasonably incurred. Reasonable expenses include the costs of an action reasonably defended.”[10]
Rule 57.01(4) permits a judge to award elevated levels of costs, including substantial and full indemnity, “where the losing party has engaged in behaviour worthy of sanction.”[11] Elevated costs should only be awarded where “there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.”[12]
Analysis
The Court found that substantial indemnity costs were fair, reasonable, and proportionate, when considering the facts in Lessard.[13]
In this regard, the Court noted the Applicant’s entitlement to costs, a pattern of non‑responsiveness impeding administration by Mr. Culic as the Estate Trustee; his refusal—without reasons—to consent to an ETDL despite inaction for nearly two years; and that his conduct necessitated the motion and costs incurred.[14]
The Court rejected Mr. Culic’s submissions entirely, noting the absence of legal authority, analysis, specificity on appropriate rates or hours, and the failure to engage with the Applicant’s materials. The Court described his late and inadequate submissions, failure to attend without reasonable explanation, and failure to file materials, as reflecting a lack of respect for the process and the Court, warranting an elevated order.[15]
Concluding Comments
The Court ordered that Mr. Culic shall personally pay the Applicant’s costs in the amount of $20,708.74. The Court concluded that substantial indemnity was necessary to indemnify the successful Applicant, reflect the seriousness of the fiduciary’s conduct, and deter similar behaviour by estate trustees.[16]
Lessard highlights the Court’s readiness to sanction fiduciaries whose conduct delays and complicates estate administration, particularly where neutral interim management is resisted without reason.
—
[1] Lessard v. Culic, 2026 ONSC 1814 (“Lessard”).
[2] Lessard at para 2.
[3] Lessard at para 4.
[4] Ibid.
[5] Lessard at paras 9 and 10.
[6] Courts of Justice Act, RSO 1990, c C.43.
[7] Rules of Civil Procedure, RRO 1990, Reg 194.
[8] Sawdon Estate v. Sawdon, 2014 ONCA 101 at para 84.
[9] Goodman Estate v. Geffen, 1991 CanLII 69 (SCC).
[10] Goodman Estate v. Geffen, 1991 CanLII 69 (SCC) at para 75.
[11] Davies v. Clarington (Municipality) et al., 2009 ONCA 722 at para 28; Dewaele v. Roobroeck, 2021 ONSC 1604 (CanLII) at para 19.
[12] Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 134.
[13] Lessard at para 14.
[14] Lessard at paras 14 and 15.
[15] Lessard at paras 15 – 17.
[16] Lessard at para 19.
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