In O’Brien v. Deslippe [1], one of the issues the court set out to answer was whether the minimum evidentiary threshold applied to the within application. [2]

The Facts:

The facts take place within the Estate of Brian O’Brien (the “Deceased” or “Estate”). Shane O’Brien (the “Applicant”) and Carole Deslippe (the “Respondent”) together (the “Parties”) are children of the Deceased. In March 2007, the Deceased executed a Will (the “March 2007 Will”) naming his wife, who predeceased him, as Estate Trustee, and the Respondent in the alternate. [3] In March 2022, the Deceased passed and in December 2022 a certificate of appointment of estate trustee was issued to the Respondent. [4]

Various issues have plagued the estate administration – however, most notably, there has been no challenge to the Deceased’s will. [5] The most litigious of issues in the Estate relate to a condo property held jointly by the Deceased and the Respondent, to which the Applicant alleges the Respondent holds on resulting trust for the Estate. [6] As agreed by the Parties, the condo issue will be converted into an action and proceed to trial. [7] As a result, the Applicant now wishes for other issues to proceed to the same trial whereas the Respondent contends that the within application is part and parcel a motion for directions under Rule 75.06 of the Rules of Civil Procedure, and as such, the minimum evidentiary threshold applies. [8]

What is the minimum evidentiary threshold?

As established by the Court of Appeal in Neuberger v. York [9], where an interested person challenges the validity of a will, they are required to meet a minimum evidentiary threshold. [10]. Meeting the minimum threshold is a preliminary requirement that the court must be satisfied of before it will grant orders regarding the validity of testamentary instruments. [11]

The threshold demands that the interested person must “adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded”. [12]

The threshold applies to will challenges brought under Rule 75.01 [13], which states:

75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs. [14]

The purpose of the threshold:

In a will challenge, and thus contrary to the facts in O’Brien v. Deslippe, the court cites Giann v. Giannopoulos [15], where the Honourable Justice Myers explains why the minimum evidentiary threshold exists in a proceeding involving a will challenge:

The common law and the Rules of Civil Procedure have responded to guard against the threat of abuse caused by the absence of the deceased. In cases such as this, an initial hurdle is perfected to test an applicant’s allegations before risking allowing him or her to use the cost and delay of the civil litigation process to punish the rest of the family. It is not a high hurdle. It can be readily surmounted with evidence adduced by the applicant to show that there is a real basis for the claim or, in legal terms, that there is some prima facie merit to the allegations made. [16]

Analysis:

In determining whether the minimum evidentiary threshold applied to the facts, the court began by ascertaining the nature of the application.

First, the court determined that the Applicant did not bring a motion for directions under Rule 75.06, but instead an application under Rule 14.05 which was commenced by notice of application. [17]

Specifically, the court noted that:

• The relief sought in the notice of application was indicative of Rule 14.05(3)(b) to (e), matters that proceed by application. [18]
• Notwithstanding the fact that some of the relief sought by the Applicant may be available per Rule 75.06, that did not automatically convert the application into a Rule 75.06 motion for directions, where the threshold would apply. [19]
• “Reference to the specific statutory provisions in the notice of application is required… but is not determinative of the nature of the proceeding at hand” [20]. Therefore, despite the notice explicitly stating Rule 75.06 as a ground for the application – the court highlights that the same paragraph also mentions four other provisions of the Rules as grounds, where Rule 14.05 is the first of which to be cited [21].
• The Applicant’s request for “further directions” noted in the amended notice of application does not mean that the application is truly a motion for directions under disguise [22].
• The use of the word “directions” is not exclusive to rule 75.06, it is found in other sections of the rules approximately 118 times. [23]

Therefore, the court found that the Applicant brought a Rule 14.05 application, which unlike a motion for directions under Rule 75.06, does not require a minimum evidentiary threshold. [24]

The second reason why the court found that the minimum evidentiary threshold did not apply here was because the application did not involve a will challenge, an indicative requirement for its application. [25]

Final remarks on the issue by the court:

Counsel for the Applicant submitted that “if a threshold applied to all forms of estate litigation, that would have been make clear in at least one of these decisions offered by the Respondent”. [26] The decisions relied on by the Respondent were Neuberger v. York, Seepa v Seepa 2017 ONSC 5368 and Johnson v Johnson 2022 ONCA 682, prominent authoritative cases on this threshold issue, but distinguishable from the case at hand in that they all involved will challenges. [27]

Lastly, in circling back to one of the main purposes of establishing the minimum evidentiary threshold, which broadly speaking is to help protect against the cost and delay of civil litigation, the court highlighted that the Parties in this matter had already agreed for two issues to proceed to trial and thus to incur those costs and delays. [28]

Takeaways

O’Brien v. Deslippe reinforces the applicability of the minimum threshold requirement to motions for directions under Rule 75.06 and how the court will take a broad and all-encompassing approach to determining the nature of an application. This decision also highlights the vitality of having relevant statutory authorities to persuade the court that established thresholds should apply to different forms of estate litigation. That is, persuasive statutory authority that is not entirely distinguishable from the facts at hand.

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[1] 2026 ONSC 58 (CanLII)

[2] ibid at para 28.

[3] ibid at para 5.

[4] ibid at para 19.

[5] at para 8

[6] at para 9

[7] at para 10

[8] at para 11

[9] 2016 ONCA 191 (CanLII)

[10] see Whaley Estate Litigation Partners on Will & Estate Challenges at Ch.8

[11] ibid.

[12] note 9 at para 89.

[13] note 10.

[14] Rules of Civil Procedure, R.R.O. 1990, Reg 194, Rule 75.01.

[15] 2023 ONSC 5412.

[16] ibid at para 14.

[17] note 1 at para 35.

[18] ibid at para 37.

[19] ibid at para 38.

[20] ibid at para 39.

[21] ibid.

[22] ibid at para 40.

[23] ibid at para 42.

[24] ibid at para 43.

[25] ibid at para 44.

[26] ibid at para 46.

[27] ibid at para 47.

[28] ibid at para 49.