Looseleaf Updates – February

Widdifield on Executors and Trustees – Carmen S. Thériault
Release #1 

What’s New?

4:7 General Rule in Estate Litigation: Costs Follow Event – In Joy Estate v. McGrath, 2022 ONCA 119, 2022 CarswellOnt 1457 (Ont. C.A.), Gillese J.A. commented upon the process to be followed where public policy considerations arise:

The jurisprudence is clear: at first instance, when deciding costs in estate litigation, the court must begin by carefully scrutinizing the litigation to determine whether one or more of the public policy considerations applies. If so, as a general principle, the parties’ reasonable costs are to be paid from the testator’s estate. It is worthy of note that this approach is not a balancing of the public policy considerations against the rationale for costs rules that ordinarily apply to civil litigation.  Rather, it is a sequential analysis, the first step of which is to determine whether one or more of the public policy considerations apply.  If so, generally the parties’ reasonable costs should be payable from the estate.  A departure from this general principle requires justification on the part of the court.

4:15 Special Costs – The court will order special costs in exceptional circumstances where the conduct is reprehensible, which encompasses scandalous or outrageous conduct (such as conduct tantamount to fraud or an abuse of process), as well as milder forms of misconduct deserving of reproof or rebuke: Kirouac Esate, 2024 BCSC 1119, 2024 CarswellBC 1847 (B.C. S.C.)

4:24 Solicitor Appointed as Executor/Trustee –  In Re Parkinson Estate, 2024 MBCA 52, 2024 CarswellMan 217 (Man. C.A.), the court awarded $110,139.17 in solicitor and client costs against an executor who was a lawyer.  The court was highly critical of the executor’s conduct, including a dispute over compensation which the court viewed as being wholly due to the executor seeking an unreasonable level of compensation and then attempting to bolster his position by issuing invoices for unsubstantial legal services when his executor compensation was questioned.

The Regulation of Professions in Canada – James T. Casey
Release #1 

What’s New?

The Applicability of the Duty of Fairness – Appendix 7A – Case Digest – A section has been added to the Appendices in Chapter 7 – 7A:6.10 Mortgage Brokers.  The following case digest has been added:

Professions and occupations – Mortgage brokers – Organization and regulation of profession – Financial Services Regulatory Authority issued notice of proposal to revoke license of applicant mortgage broker and principal – Broker filed request for hearing – Broker’s motion for request to be published on website of authority was dismissed – Broker brought application to quash or amend proposal, and challenge transparency guidance regarding authority to take regulatory action against, as mandamus relief was not available – Portions of application seeking declaration with respect to publication of proposal were not struck, leaving that issue open to Divisional Court – Broker brought motion to vary order, and to restore application regarding relief sought – Motion dismissed – Trial judge correctly held that it was plain and obvious that application to strike or amend proposal could no succeed as it was premature – Tribunal hearing provided adequate alternative remedy, and broker would get full and fair hearing de novo to resolve any alleged procedural fairness issues – Exceptional circumstances bring rule of law into disrepute, going beyond breaching procedural fairness or acting without jurisdiction, were not present – Balance of judicial review application dismissed – Decisions at issue were not statutory powers of decision and were not amenable to judicial review – To be subject to judicial review decision must affect legal rights or obligations – Although applicants had interest in their reputation, publication of allegations  by regulator did not give rise to right to judicial review: Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Office), 2024 CarswellOnt 12109, 2024 ONSC 4464 (Ont. S.C.J. (Div. Ct.)).