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Collateral Attack (3). Aquino (Re)
In Aquino (Re) (Ont CA, 2026) the Ontario Court of Appeal dismissed a BIA insolvency appeal, this brought against two orders: the first "adjudging the appellant bankrupt and appointing [a] trustee of his bankrupt estate" and the second "determining that a pre-existing Mareva injunction, granted in litigation that resulted in a substantial judgment against the appellant (the “TUV litigation”), remained and continued in full effect until further order of the court (the “Mareva Order”).
Here the court cites a 'collateral attack' doctrine use in insolvency:[32] A judge has a discretion to dismiss a bankruptcy application if it is brought for a collateral purpose: Bankruptcy of Jewish Foundation of Greater Toronto, 2022 ONSC 2120, 99 C.B.R. (6th) 261, at para. 30. A collateral purpose is one other than the rateable distribution of the bankrupt’s property among its creditors, such as bullying or harassing the debtor, using the bankruptcy court to resolve disputes with the petitioning creditor for which there is a more suitable forum (such as a civil action), or putting pressure on the debtor to make payments of amounts that are not debts: Jewish Foundation, at paras. 31 to 35. . Elizabeth Casey Cooke Family Trust v. Dioguardi
In Elizabeth Casey Cooke Family Trust v. Dioguardi (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against a granted summary judgment motion in which a Will solicitor-related "Negligence Action was dismissed after the motion judge concluded that it was a collateral attack on the Certificate [SS: 'Certificate of Appointment of Estate Trustee With a Will'] and therefore an abuse of process."
The court considers the effect of a failure to pursue will rectification in the Certificate issuance process (ie. probate), and to sue instead, on the ability to challenge the validity of the Will - this in a 'collateral attack' and 'abuse of process' analysis:A. The Will Could Have Been Rectified at Probate
[12] The collateral attack finding that is at the heart of this appeal is premised on the theory that during the certificate process the appellants could have rectified the negligent drafting they are alleging in the Negligence Action. If that theory is incorrect, as the appellants contend it to be, the appeal must succeed.
[13] The appellants claim that rectification of the Will would have been “extremely difficult if possible at all” because the evidence of the lawyer who drafted the will “is a prerequisite” to rectification and Mr. Dioguardi claims that the Will reflects the instructions he received. They argue that by taking this position, Mr. Dioguardi frustrated their ability to seek rectification during the certificate process.
[14] I do not accept that rectification was either legally or factually unavailable given Mr. Dioguardi’s position. Without deciding whether the cooperation of the drafting solicitor might be necessary in other situations, such as when the court is interpreting a probated will as a court of construction, Mr. Dioguardi’s cooperation would not have been needed to raise the issue of rectification at probate in this case.
[15] The motion judge articulated the correct principles at paras. 16-22 of his decision, in reliance on Neuberger, which is the leading case of this court. The issuance of a Certificate of Estate Trustee, also known as “probate”, is the court procedure by which a will is proved to be valid. When executors named in the will apply for probate, they must establish that: (1) the testator satisfied the statutory age requirement to make a will; (2) the will was executed in accordance with the statutory requirements and has not been revoked; (3) the testator knew and understood the contents of the will; (4) the will was not affected by mistake; and (5) the testator had testamentary capacity. See Albert H. Oosterhoff et al., Oosterhoff on Wills, 9th ed. (Toronto: Thomson Reuters, 2021), at p. 205.
[16] The court’s jurisdiction in matters of probate is inquisitorial; the court is obligated to “ascertain and pronounce what documents constitute the testator’s last will and are entitled to be admitted to probate”: Neuberger at para. 68. To discharge this function and resolve these issues, a probate court will therefore admit direct evidence of the testator’s intention when proving the will: Panda Estate (Re), 2018 ONSC 6734, 42 E.T.R. (4th) 139, at paras. 15-17; Silano v. Silano, 2019 ONSC 2776, 49 E.T.R. (4th) 90, at paras. 26-27; and Nordlander v. Nordlander Estate, [1998] O.J. No. 4039 (Gen. Div.), at paras. 17-22; see also Ali Estate (Re), 2011 BCSC 537, 69 E.T.R. (3d) 203, at paras. 21-37.
[17] The appellants cite Hofman v. Lougheed et al., 2023 ONSC 3437, 87 E.T.R. (4th) 263, to the contrary. Hofman held that this court’s decision in Rondel v. Robinson Estate, 2011 ONCA 493, 106 O.R. (3d) 321, leave to appeal refused, [2011] S.C.C.A. No. 536, at para. 23, sets out the “applicable legal principles pertaining to rectification of a will”: Hofman, at para. 39. Relying broadly on Robinson, the application judge in Hofman said that “[i]n determining whether a mistake, if any, has been made by the drafting solicitor … direct extrinsic evidence is generally inadmissible”, including “third-party evidence attesting to the testator’s intentions”: Hofman, at para. 42. However, Hofman was not a probate case but a construction case, because it involved determining the true meaning, intent, and effect of the language of a will: Hofman, at paras. 1, 20. Similarly, the decision in Robinson was explicitly premised on the application judge “sitting as a court of construction”: Robinson, at paras. 22-23. Therefore, the commentary in Robinson should not be read as relevant to probate.
[18] In this case, there was ample evidence on the record to assess James Sr.’s true intentions relating to the residual distribution scheme, even without Mr. Dioguardi’s cooperation. That evidence included: James Sr.’s notations on the 1993 will; James Sr.’s handwritten notes; correspondence between James Sr. and Alan; Alan’s direct affidavit evidence; and Mr. Dioguardi’s examination for discovery transcript, in which the appellants submitted Mr. Dioguardi “[i]n essence … admitted his error”. This is the same evidence that the motion judge found to be “compelling” support of the appellants’ submission that James Sr. did not intend to leave a partial intestacy.
[19] This evidence would have been admissible in a court of probate and available to the appellants to argue the error for the purpose of rectifying the Will. While it may have been helpful, Mr. Dioguardi’s cooperation was not essential and his refusal to explicitly admit the alleged error would not have prevented the appellants from seeking rectification in the certificate process.
[20] I recognize that there is authority holding that a court of probate may only delete and not add words: Barylak v. Figol (1995), 9 E.T.R. (2d) 305 (Ont. C.J. Gen. Div.), at para. 25; see also Ali Estate, at paras. 27-37. I need not decide whether this limitation still applies to courts exercising their probate function in Ontario. Even if it does, the alleged drafting error in this case could have been rectified, had it been proved, simply by deleting the introductory text to the distribution scheme, reproduced in para. 2 above, which rendered the scheme conditional. In my view, the probate court did not lack the power to rectify the Will in this case, before issuing the Certificate.
B. The Motion Judge was Entitled to Find the Negligence Action was an Abuse of Process
[21] The key to understanding why the Negligence Action was an abuse of process lies in appreciating the legal nature of a Certificate of Appointment of Estate Trustee, which is a “court order certifying that particular writings constitute a deceased’s will and that those persons named as estate trustees have the authority to act in relation to the testator’s estate”: Neuberger, at para. 66. As discussed above in para. 15, to issue a certificate, the court must therefore be satisfied that the will was duly executed, the testator had testamentary capacity, and the testator knew of and approved the contents of the will: Neuberger, at paras. 77-78. “Probate is an in rem pronouncement that the instrument represents the testator's true testamentary intentions”: Neuberger, at para. 118. It follows that unless and until it is revoked, the Certificate relating to James Sr.’s estate issued on May 16, 2018, is therefore a final order of the court confirming the Will reflected James Sr.’s intentions. The motion judge found that since the appellants’ Negligence Action required a finding that the solicitor negligently failed to give effect to James Sr.’s testamentary intention, it was necessarily a collateral attack on this central factual finding underlying the Certificate.
[22] Technically, the Negligence Action was not a collateral attack. A “collateral attack” will occur if a party seeks to overturn a court order in proceedings other than those which explicitly allow the first order to be challenged and reversed: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at paras. 33-34. The appellants were not seeking to overturn the Certificate or to attack its legal validity or effect. Indeed, Alan took steps to further the effect of the Certificate by bringing an application for directions which sought to have James Sr.’s estate distributed according to the Will as drafted, rather than as allegedly intended.
[23] However, I would not disturb the motion judge’s decision. The collateral attack doctrine is a subset operating within the broader doctrine of abuse of process: C.U.P.E., at para. 22; Becker v. Walgate, 2025 ONCA 696, at para. 31. The motion judge’s reasoning shows that he was properly applying this broader abuse of process doctrine to prevent the appellants from relitigating key factual findings that were finally resolved when the Certificate was issued. As indicated, the Certificate was premised on the conclusion that James Sr. intended to make the gifts to his grandchildren conditional. Yet, in substance the appellants’ claim in the Negligence Action is that James Sr. intended the transfers to be unconditional. The Negligence Action was therefore an abusive attempt by the appellants to relitigate factual findings already resolved by the Superior Court, and to advance issues that could have been determined in prior proceedings, namely the certificate process in this case: see C.U.P.E., at paras. 37, 51-52; Becker, at paras. 34, 37; Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, 363 D.L.R. (4th) 470, at para. 12, leave to appeal refused, [2013] S.C.C.A. No. 491; Winter v. Sherman Estate, 2018 ONCA 703, 42 E.T.R. (4th) 181, at para. 7, leave to appeal refused, [2019] S.C.C.A. No. 438; and Ontario v. Lipsitz, 2011 ONCA 466, 334 D.L.R. (4th) 606, at paras. 83-88, leave to appeal refused, [2011] S.C.C.A. No. 407. The appellants had the opportunity to rectify the Will during the certificate process, but they failed to do so. The motion judge was therefore correct in finding that the Negligence Action was an abuse of process, warranting its dismissal through summary judgment.
[24] To be clear, and contrary to the appellants’ submissions, this outcome does not mean that negligence claims against solicitors are always prohibited once a Certificate of Appointment of Estate Trustee is obtained. It also does not absolve lawyers of responsibility when they act negligently. The narrow holding of this case is that where a solicitor makes a drafting error that could be rectified in the certificate process, and the party harmed by that error takes no steps to have the will rectified, then the doctrine of abuse of process may prevent the harmed party from subsequently bringing an action against the solicitor for damages equivalent to the benefit they claim they ought to have received.
[25] For example, there is nothing preventing a claim against a solicitor to recover the costs incurred by the rectification process (i.e., for legal fees and disbursements or for additional expenses and lost opportunities arising from the delay in obtaining the certificate).
[26] Moreover, there is nothing preventing a claim against a solicitor for damages relating to any negligence in the drafting of the will that cannot be rectified in the certificate process. One example of this would be where a solicitor gives negligent advice that is followed by the testator (such that the testator had knowledge and approval of the contents of the will) but the negligent advice harms a beneficiary. Another would be where a solicitor completely and erroneously leaves out an intended beneficiary (such as a newly-born grandchild who the testator directed to be added in) and the will cannot be rectified because although it is clear the beneficiary was erroneously excluded, the court of probate cannot determine the testator’s intentions related to that person.
[27] Finally, there is nothing preventing a claim against a solicitor for negligently refusing to cooperate with a beneficiary to rectify a will that was obviously tainted by the solicitor’s drafting error, once that error is brought to the attention of the solicitor.
[28] The appellants’ Negligence Action in this case did not advance any such claims.
[29] I would emphasize that the doctrine of abuse of process is not employed to shield lawyers from liability; it is employed to recognize and reinforce the public good of the certificate process by requiring parties to employ the available processes and remedies before, or possibly in parallel to, bringing a negligence action against a solicitor. Errors that can be addressed in the certificate process via rectification must be raised at that stage.
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