A recent decision of the Superior Court of Justice, Estate of Lascelles George Burnett v. Heakes Housley, Barristers & Solicitors, 2026 ONSC 520, provides a clear illustration of the court’s approach to security for costs where an estate brings proceedings with limited assets, particularly in circumstances where the underlying issues have already been adjudicated in related litigation.
Background
The Estate of Lascelles Burnett advanced a claim alleging that the defendants, lawyer Michael and his law firm, had represented to Lascelles’ power of attorney, Ralfina, that the Estate would receive half of the proceeds from the sale of the condominium owned by Lascelles’ spouse, Hortense. When those funds were not delivered, the estate sought to hold Michael personally liable for half the sale proceeds.
This dispute arose against the backdrop of extensive litigation under the Family Law Act (FLA) concerning whether Lascelles and Hortense were separated at the time of the condominium sale. That determination was central, because only if they were separated would Lascelles have had a claim to half the sale proceeds. In a focused hearing held in 2024, the court found that Lascelles and Hortense were not separated. The proceeds previously paid into Court were therefore returned to Hortense’s estate. Despite that adjudication, the Estate commenced a parallel action against Michael seeking the same funds.
The Defendants’ Motion for Security for Costs
Whether the Estate Required Counsel
At the outset of the motion, Justice Jolley noted that Ralfina, acting as executor, appeared to be acting in a representative capacity and that the Estate likely required representation under Rule 15.01(1). Although Ralfina maintained that she understood the issues and had prepared her materials, the Court cautioned that the Estate must either retain counsel or obtain legal advice confirming that counsel was not required. The motion proceeded to avoid prejudice to the defendants.
The defendants sought an order for security for costs under Rule 56.01(1)(b), (d), and (e). To succeed, they were required to show one of the following:
- 1. another proceeding pending for the same relief;
- 2. plaintiff is a nominal plaintiff with insufficient assets in Ontario; or
- 3. the action is frivolous and vexatious, and the plaintiff lacks assets to pay costs.
No Parallel Proceeding
Although the earlier FLA proceeding had not been formally dismissed, the Court accepted that the central issue of whether the spouses were separated had already been conclusively determined. As a result, there was no pending proceeding seeking the same relief.
Insufficient Assets
The estate provided minimal evidence of its financial circumstances. The Court noted:
- 1. the estate admitted it had no liquid assets;
- 2. the estate had outstanding unpaid costs of $60,000 from the FLA proceeding; and
- 3. the estate’s affidavits lacked the financial disclosure needed to establish impecuniosity.
An unpaid costs award alone was sufficient evidence that the Estate lacked assets to cover future costs.
Likelihood of Success
The Court concluded that the Estate’s claim was “highly unlikely to succeed.” The fundamental difficulty was that any representation by Michael regarding entitlement to half the proceeds would have been premised on a mistaken assumption that Lascelles and Hortense were separated, when judge had already found they were not.
Even on the Estate’s version of events, that Michael mistakenly indicated that the funds would be paid, the Court held that any such statement could not give rise to liability where the legal entitlement to the proceeds did not exist. Moreover, the estate did not plead a duty of care, nor a breach thereof. The claim was limited to alleging a representation said to have been made in error.
Security for Costs Ordered
Justice Jolley granted the defendants’ motion for security for costs, finding the claim unlikely to succeed and the Estate unable to demonstrate either sufficient assets or a meritorious basis to proceed without posting security.
Having found that the claim was weak and the Estate had insufficient assets, the court ordered staged security for costs totaling:
- 1. $10,819.08 within 30 days (costs to date and discovery);
- 2. $9,000 within 90 days after discovery (mediation); and
- 3. $20,000 within 90 days after mediation (pretrial and trial).
The Estate was also ordered to pay applicable HST and to pay the defendants’ costs of the motion.
Key Takeaways
- 1. Security for costs is available where an estate has no assets and has outstanding unpaid costs.
- 2. will consider related proceedings even if not formally terminated, to determine whether the relief sought has already effectively been adjudicated.
- 3. A claim premised on a representation concerning entitlement to funds may not succeed where a binding judicial finding negates that underlying entitlement.
- 4. Executors acting without counsel face heightened procedural and evidentiary risks, especially when acting in a representative capacity.
Conclusion
This decision reinforces the principle that litigants cannot avoid adverse findings from earlier litigation by reframing the dispute against new defendants. Where an estate lacks assets, and where the claim is weak or duplicative of issues already determined, security for costs may be ordered to protect defendants from the burden of defending unmeritorious claims.
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