All About Estates

Court of Appeal delivers pyrrhic victory on costs to appellant in Smith Estate; otherwise dismisses appeal

Today’s blog was written by Angela Casey, a lawyer at de VRIES LITIGATION

Last week, the Court of Appeal delivered its judgment in Smith v. Rotstein.  The decision appealed from was a summary judgment under former Rule 20 dismissing Ms. Rotstein’s will challenge.

What made the case unique was that in addition to the will at issue, there were four codicils, the last two of which had no relevance to Ms. Rotstein’s claims.  The estate trustee only sought probate in respect of the will and the first two codicils.  Ms. Rotstein argued that the General Rule of Probate required that all five testamentary documents be admitted to probate at the same time.  She claimed that this precluded the Court from granting summary judgment against her.  This argument was rejected by both the motions judge and the Court of Appeal.  The Court of Appeal found no error in principle to admitting the will and two of the four codicils to probate.

Ms. Rotstein also appealed the costs decision below.  The motions judge had found that Ms. Rotstein’s persistence with “scorched earth” litigation in the absence of any evidence to support her position amounted to “reprehensible” conduct meriting an award of full indemnity costs against her.  Costs were fixed at $707,173.00 for fees and $30,407.29 for disbursements.

Interestingly, the appellant did not object to the scale of costs (full indemnity) as one of the grounds of appeal.  She instead argued that her failure to deliver a Bill of Costs as directed by Justice Brown should not have disentitled her to argue that the winning party’s costs were unreasonable.  The Court of Appeal agreed with Ms. Rotstein on this point.

From her failure to file a Bill of Costs, Justice Brown concluded that “the fees incurred by Ms. Rotstein on a full indemnity basis approximated those incurred and submitted by Mr. Smith”.  This, the Court of Appeal found, was a permissible inference to make. 

In the end, after retaining one of Canada’s leading litigators to argue her appeal, what did Ms. Rotstein win? She must still pay her brother’s full indemnity costs.  However, she can now go back and argue that her brother’s legal costs, although approximating her own, were unreasonable.  Pyrrhic victory?

Thanks for reading,


About Justin de Vries
Justin has been consistently named as one of the Best Lawyers in Canada/Trusts & Estates. He is an accomplished litigator who has appeared before all levels of the Ontario Court & the Federal Court of Canada. Justin's areas of expertise include: estate, trust, and capacity litigation, as well as probate applications and estate administration. He regularly speaks on estate, trust and capacity issues. Email: