Superior Court awards substantial indemnity costs against lawyer appointed as executor

The Ontario Superior Court has found it necessary to order a lawyer named as executor in a will to pay substantial indemnity costs to a residual beneficiary, who successfully moved for the appointment of a neutral estate trustee during litigation (ETDL). 

Lessard v. Culic et al., 2026 ONSC 1814, revolved around the estate of a man who executed his last will and testament on May 29, 2020, and died on Nov. 23, 2023. 

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At the time of his death, he owned two properties, as well as personal, domestic, and household articles, plus vehicles, cash, and investments with an estimated value of over $1 million. 

The respondents in these proceedings were a person who had been in a relationship with the deceased when he died, the stepson of the deceased, and the lawyer appointed as executor of the estate under his will. 

As the stepdaughter of the deceased and a residual beneficiary of his estate, the applicant moved for the appointment of a neutral ETDL to: 

• Preserve and protect the estate assets, particularly given the expectation that an estate property would become vacant imminently 
• Ensure the estate’s timely, transparent, and proper administration during the ongoing litigation 

According to the applicant, for almost two years, the respondent lawyer failed to apply for a certificate of appointment of estate trustee with a will and failed to provide her with information about the estate’s assets, liabilities, and administration. 

The two other respondents did not oppose the applicant’s motion. 

Despite receiving the motion materials, the respondent lawyer did not attend the motion or file responding materials. After hearing the motion on Nov. 25, 2025, the court ruled in the applicant’s favour. 

As the successful party on the motion, the applicant wanted the respondent lawyer to personally pay her substantial indemnity costs of $20,708.74. Regarding the bill of costs, the respondent lawyer criticized the hourly rates and the number of hours spent. 

Substantial indemnity cost award

The Ontario Superior Court of Justice ordered the respondent lawyer to personally pay the applicant’s substantial indemnity costs of $20,708.74 under s. 131(1) of Ontario’s Courts of Justice Act, 1990, and r. 57.01 of the Rules of Civil Procedure, RRO 1990, Reg 194. 

The court found an award of substantial indemnity costs fair, reasonable, and proportionate based on the following undisputed facts: 

• The applicant was entitled to her costs 
• The respondent lawyer should personally pay these costs 
• The applicant used the proper percentages to calculate partial and substantial indemnity costs 
• The respondent lawyer’s pattern of non-responsiveness impeded and delayed the estate administration 
• The respondent lawyer did not take steps to administer the estate in the past two years 
• The respondent lawyer refused to consent to an ETDL appointment until the determination of the application’s merits 
• The respondent lawyer’s refusal made the applicant bring the motion and incur significant costs 

Wholly rejecting the respondent lawyer’s submissions, the court noted that he reproduced “brainstorming correspondence” without explanation or analysis. The court added that he failed to: 

• cite any law or appropriately respond to the applicant’s detailed, well-prepared materials and submissions 
• take a position on whether the bill improperly included costs from a prior attendance 
• explain why he did not file materials 
• specify the appropriate hourly rates for the bill of costs and the number of hours that should have been spent 

The court described the respondent lawyer’s approach to the cost issue as concerning. The court held that his behaviour showed a lack of respect for the court and its process and justified an elevated cost order. 

Specifically, the court saw a need to order the respondent lawyer to pay substantial indemnity costs to reflect the seriousness of his conduct as a fiduciary and to discourage similar behaviour by other estate trustees.