A notice of application marks the beginning of estate litigation proceedings. The notice of application provides an overview and outlines the precise relief sought, the grounds to be argued (including any statutory provisions or rules to be relied on) and the evidence to be relied on at the hearing of the application. As the grounds and relief sought in an application are often captured by numerous statutory authorities, a notice of application usually references all applicable authorities.

While lawyers want to cite all relevant authorities to cover their bases, each authority attracts unique requirements, and a cited authority may not capture the true essence of an application. This poses an issue: when an application refers to an authority with specific requirements, but the authority does not wholly capture the essence of the application, is the applicant required to fulfill the requirements of the authority? This issue was explored in O’Brien v. Deslippe, 2026 ONSC 58, where an application was brought pursuant to Rule 14.05 of the Rules of Civil Procedure (the “Rules”) but also made reference to Rule 75.06, which has specific evidentiary requirements that are absent from Rule 14.05.

After the death of his wife in April 2016, Brian Matthew O’Brien (“Brian” and the “Estate”, respectively) purchased a condo located at 4789 Riverside Drive East in Windsor, Ontario (the “Condo”). Carole Deslippe (“Carole”), Brian’s daughter and the Respondent, claims that she and Brian bought the Condo together: they are both listed on the agreement of purchase and sale and are both named on the mortgage documents. Carole and Brian opened a joint bank account to pay the monthly mortgage. Brian also had a TFSA and a RRIF that named Carole as the sole beneficiary.

Brian died on March 19, 2022. He was survived by his two children: the Applicant, Shane O’Brien (“Shane”), Carole. Brian executed a Last Will and Testament on March 21, 2007 (the “Will”) that appointed Carole as estate trustee and divided his Estate equally between his two children.

On November 16, 2023, Shane commenced an application that claimed:

• Carole committed a breach of trust and breached her fiduciary duty by failing to disclose the existence of the RRIF for nearly two years after Brian’s death;
• Carole held the funds in her joint bank account with Brian, the RRIF and the TFSA in resulting trust for the benefit of the Estate;
• Carole held the Condo in resulting trust for the benefit of the Estate; and
• Carole should be removed as estate trustee.

The parties agreed that the issue regarding the Condo shall continue to trial as an action. Shane sought to also have the other issues also be heard at the trial. Carole claimed that Shane’s application (absent the issues regarding the Condo) should be classified as a motion for directions pursuant to Rule 75.06 of the Rules. She claimed that Shane’s application failed to meet the minimum evidentiary threshold required of applications and motions made under Rule 75.06.

The issue before the Court was the nature of Shane’s application and whether the evidentiary threshold requirement applied.

Carole relied on Neuberger Estate v. York, Seepa v. Seepa and Johnson v. Johnson to support her claim that Shane failed to meet the evidentiary threshold requirement. These decisions stressed the importance of the evidentiary threshold in Will challenges, which requires applicants to provide evidence to demonstrate that there is a real basis for their claims. The evidentiary threshold requirement acts as a safeguard to protect estates against fishing expeditions commenced by disgruntled beneficiaries that are unhappy with their entitlement in an estate. The absence of such a safeguard exposes an estate to unnecessary costs, distress and delays at the expense of the beneficiaries, often fuelled by an applicant’s dissatisfaction with their inheritance or fraught relationship with family members. An application under Rule 75.06 requires the applicant to produce some evidence that, if accepted, questions the validity of a testamentary instrument.

Justice Howard recognized the importance of the evidentiary threshold requirement in Rule 75.06 applications and Will challenges. However, Justice Howard found that such principles were inapplicable in this case.

Firstly, the evidentiary threshold requirement applies to an application or motion for directions under Rule 75.06. Shane did not bring such a motion or application; his commenced his application pursuant to Rule 14.05. Specifically, the relief sought fell within the parameters of Rule 14.05(3). While Rule 75.06 also captured some of the relief sought, that did not automatically convert Shane’s Rule 14.05 application to a Rule 75.06 application.

In his notice of application, Shane cited Rule 75.06 as one of the grounds for the application. However, Shane also references four other provisions of the Rules as grounds for his application. Justice Howard specified that reference to a statute or regulation in a notice of application is not determinative of the nature of the proceeding.

Shane’s notice of application also sought an Order “that the parties be granted leave to move for further directions as may appear advisable or necessary.” Carole claimed since the notice of application referenced “further direction”, this meant that Rule 75.06 applied and the evidentiary threshold requirement also applied. Justice Howard clarified that Rule 75.06 does not have a monopoly over the term “directions”; this term is used over 100 times in the Rules.

Finally, the Rule 75.06 evidentiary threshold was inapplicable because Shane’s application did not involve a Will challenge. The case law cited by Carole all involved Will challenges. Carole could not provide any case law or authority that confirmed that evidentiary threshold requirement also applied to Rule 14.05 applications that do not involve a Will challenge. On the contrary, Shane’s application did not dispute the Will and indeed relied on the validity of the Will.

This decision reiterates that simply referencing a statute or regulation in a notice of application does not automatically attract every requirement of that authority. The nature of the application is not determined by the authorities cited.