Looseleaf Updates – July

The following looseleaf texts have been updated:

The Regulation of Professions in Canada – James T. Casey
Release #4

What’s New?

WP:79 Conduct Unbecoming – Nova Scotia – In summary, under Regulation 9.1.3(a), “conduct unbecoming” extends to personal or private conduct that tends to bring discredit upon the legal profession. If one or more of items (i), (ii), (iii) is shown, that is “conduct unbecoming”. If none is shown, then proof of other personal or private conduct that tends to bring discredit upon the legal profession may establish “conduct unbecoming”: Fraser v. Nova Scotia Barristers’ Society (2024), 2024 CarswellNS 551, 2024 NSCA 63 (N.S. C.A.) at para. 31 – Bourgeois, Fichaud and Derrick, JJ.A.

IF:32 – Challenges to By-Laws in the Professional Regulatory Realm – In the sphere of professional regulation in Canada, challenges to a regulator’s by-laws are relatively infrequent. Nonetheless, they are guided by well-established principles that reviewing decision-makers must apply, especially when that review involves assessing whether an impugned by-law overreaches a regulator’s powers, or else impinges on a professional’s right to procedural fairness. In recent years, there have been several noteworthy decisions in this area. These have addressed important topics such as the nature of the notice that must be given to members of various professions by their regulators, and the scope of permitted regulatory oversight on member conduct. This Memorandum highlights some of those recent cases, after giving a brief overview of the established law on by-law challenges in the Canadian professional regulatory context.

The Regulation of Professions in Canada – James T. Casey
Release #5

What’s New?

Appendix IF – Issues in Focus – Human Rights Issues in Professional Regulation – Part Two: Discipline and Accredition – In the realm of professional regulation, human rights issues can arise in numerous contexts. One very common area of focus is the impact of potential human rights-based discrimination—under either human rights legislation or the Charter—on applicants as part of their individual accreditation and registration processes. This topic was addressed in the first of this two-part Memo, titled “Human Rights Issues in Professional Regulation- Part One: Accreditation and Registration”. However there are other issues in the same vein that are worth noting, specifically:

• Human rights concerns in the disciplinary process; and
• Human rights in connection with the accreditation of those educational institutions that train professionals in the first place.

In this second part of the Memo, these two narrow topics will be explored in Part I and Part II, respectively.

The Law of Costs – Mark M. Orkin and Robert G. Shipper
Release #3

What’s New?

Party-and-Party Costs – Inherent Jurisdiction as to Costs – Interim Costs – Interim costs, also referred to as advance costs, are, essentially, costs payable in advance, since they are intended to provide funding to the end of the litigation. In this case before the Superior Court of Justice for Ontario, the defendant, the Attorney of Canada, brought a motion seeking leave to examine three expert witnesses before trial. The parties resolved the motion in all respects. The only issue left for the judge was to adjudicate the quantum of the payment of interim costs by Canada to the plaintiff and costs of the motion. The judge concluded that the quantum of interim costs in this case ought to negate any financial prejudice caused to the plaintiff as a result of having to conduct these examinations before trial. In the judge’s view the prejudice at issue was the increased costs from work that would necessarily have to be duplicated, and the burden of having to incur the expenses for these examinations before they would otherwise be incurred. In the judge’s view interim costs of $150,000 was fair and reasonable in the circumstances: Six Nations of the Grand River Band of Indians v. The Attorney General of Canada and His Majesty the King in Right of Ontario, 2024 A.C.W.S. 2954 (Ont. S.C.J.).

Party-and-Party Costs – Special Provisions as to Costs Disbursements – General – This case in the British Columbia Supreme Court involved two separate costs decisions. The first involved a decision on disbursements which is discussed here. The court noted that Supreme Court Civil Rules (SCCR) 14-1(5) requires an assessing officer to determine which disbursements were necessarily or properly incurred in the proceeding and a reasonable amount for those disbursements and set out the applicable principles to be applied on an assessment of disbursements have been summarized in the case law. The court noted that the plaintiff was self-represented at the assessment of costs and had been for some time prior to trial. “During the course of the assessment of costs, it was clear that the plaintiff did not understand what constituted a proper disbursement. Also, where the tariff provided for a range of units claimable, the plaintiff consistently claimed the maximum amount regardless. As a result, the plaintiff’s views concerning his claim for costs were completely unrealistic. This combination of factors made the potential for settlement of the plaintiff’s bill of costs illusive at best.” [para.9]. Further, if the tariff items representing the assessment of costs including a half day for the prehearing conference and two days for the assessment of costs were removed from the equation, then the defendants did beat their offer to settle the plaintiff’s bill of costs. The assessment officer agreed with the submissions of the defendants that the reduction they sought was appropriate in the circumstances: Emond v. British Columbia (Attorney General), 2024 A.C.W.S. 1641 and 2024 A.C.W.S. 2471 (B.C.S.C.).

The Law of Costs – Mark M. Orkin and Robert G. Shipper
Release #4

What’s New?

Security for Costs – When Security will be Ordered – Another Proceeding Pending for the Same Relief; Unpaid Costs of the Same or Another Proceeding – Unpaid Costs of the Same or Another Proceeding – This was a motion in the Prince Edward Island Court of Appeal for security for costs in the proceeding and costs in the Court of Appeal. Judgments or orders against the appellant for costs had not been paid. The motion was granted. The sum of $22,752.62 was ordered as security for the cost of the proceeding and security for the costs of appeal. The court noted that security for costs of the proceedings is not routinely granted and some justification must be offered by the moving party. The justice of the case required that costs of the proceeding also be posted in this matter. The underlying action related to a claim regarding a landlord/tenant dispute respecting commercial premises. Both parties asserted that the other party failed to comply with the terms of the lease. The motions Judge awarded costs in the amount of $10,652.62 to the landlord. The tenant appealed from both the decisions and as well the award of costs. The court reviewed the legal principles that should be considered when determining if security for costs should issue. In this case, the judge was satisfied that this was an appropriate case to award security for costs in both the appeal and for the costs awarded by the trial judge for a multitude of reasons. The judge was satisfied that there was good reason to believe that the appeal had all the hallmarks of being frivolous and vexatious. “Frivolous and vexatious” has no defined meaning in the Rules but all courts, including this court consistently treat the terms in much the same manner. A frivolous appeal has been denoted as one that is “devoid of merit” or has “little chance of success”. A vexatious appeal includes one taken to “annoy” the party opposite or to conduct an appeal in a less than diligent manner. It may also include a failure to comply with the Rules, court orders and costs orders”: The Little Poultry Company v. Kris Taylor, 2024 ACWS 2692 (PECA).

Assessment of Costs – The Assessment Officer – Objections to Assessment; Review of Assessment; Certificate of Assessment – Objections to Assessment – The applicant, in this decision in the Ontario Superior Court of Justice, moved to set aside the assessment order of the assessment officer who upheld the account of the applicant’s former lawyers in full after a four-day hearing. The lawyers moved to dismiss the applicant’s motion and to confirm the assessment order arguing that the applicant’s failure to make objections to the assessment decision pursuant to rule 58.10 of the Rules of Civil Procedure (Ont.) meant that there was no jurisdiction to consider the applicant ‘s challenge to the order. The assessment officer delivered reasons upholding the entirety of the lawyers’ bills. The court noted that the ability to challenge the decision of an assessment ordinarily depends on the delivery of objections. In this case, the applicant did not deliver objections to the assessment officer’s decision. The judge also disagreed with the submission of the applicant that her challenges to the assessment officer’s decision were not suited to the objection process. The objection process is one that is, in part, designed to allow both reconsideration of issues and the issuance of supplementary reasons to cure any insufficiency. The court also dud not see the need to call expert evidence on the standard of care before advancing any criticisms of counsel’s skill in the context of an assessment of an account. To demand expert evidence as a prerequisite to arguments about the lawyer’s performance would be to risk making the assessment procedure entirely inaccessible to clients of modest means. The court granted the lawyer’s motion to confirm the certificate of assessment: Atkinson v. Whaley Estate Litigation, 2023 ONSC 1006 (Ont. S.C.J.).

Remedies in Tort – Lewis N. Klar et al.
Release #6

What’s New?

Appendix IF 9 – The case law supports a variable standard of care in products liability negligence that increases in accordance with the danger that the product poses to the ultimate consumer. However, despite the presence of a limited but perceptible shift in the standard of care, Canadian products liability law remains rooted in negligence and courts in Canada have continued to reject a move to strict and absolute liability.

Appendix IF 14 – What is considered a rural premises for the purpose of benefitting from this lower standard of care is a question of fact that should be analyzed in terms of the current condition of the premises, and not in terms of its zoning designation or the mere fact that it is within the bounds of a municipality. The activity must be something in the nature of a sport or activity that, though undertaken gratuitously, one could envision being charged a fee to engage in. Courts have considered whether the fact that a premises is rural or whether the activity on the premises is recreational will affect the appreciation of the standard of care that occupiers owe to users of their property. The Supreme Court in Waldick v. Malcolm, [1991] 2 S.C.R. 456 (S.C.C.) found that, in analyzing whether an occupier had behaved reasonably in the circumstances, the fact that the location was rural should be considered.

Appendix IF 16 – A plaintiff in a defamation action is required to prove three elements, one of which is that the defendant published a defamatory expression – generally referred to as the publication rule. While the publication rule is well settled, the proliferation of online platforms has forced the courts to adapt and modify the traditional publication rule when applied to defamation claims involving the internet – known also as, ‘internet defamation’. In that context, the Supreme Court of Canada (“SCC”) and subsequent jurisprudence has developed a modern, more nuanced approach which on recognizes deliberate – rather than passive – acts as satisfying the first component of the publication rule.

Remedies in Tort – Lewis N. Klar et al.
Release #7

What’s New?

In Pyke v. Tri Gro Enterprises Ltd. (2001), 148 O.A.C. 307, highly offensive odours from composting from the defendant’s mushroom farm constituted nuisance in a rural neighbourhood. Most owners used the land primarily for residential purposes. The legislation did not bar the plaintiffs’ common law nuisance action. Absent special circumstances like those existing in present case, nuisance complaints arising from agricultural operations generally were brought first before Normal Farm Practices Protection Board before bringing action in court. However, the defendant’s operation was not protected as “normal farm practice” because composting initially was not carried out properly and the defendant commenced operations in an area where the nuisance it produced was completed out of character. It fundamentally changed the rural environment the plaintiffs previously enjoyed; the defendant also violated the Environmental Protection Act for period of time.

In Davis v. Sutton, 2017 ONSC 2277, mature cedar trees between the parties’ properties interfered with the defendant’s ability to fence his property for the safety of special needs child. The condition and location of trees required the fence to be 6-8 feet inside lot line and substantially interfering with use and enjoyment of property. After the plaintiff persistently withheld consent to cut or replace the trees, the defendant cut those on his property. The Forestry Act does not prohibit a party from self-help action where boundary tree is a nuisance. The plaintiff co-owner was unable to unreasonably refuse consent to cutting; the action was dismissed.

In Youssef v. Misselbrook, 2020 ONCA 83, as a result of donkeys escaping from a rural property, the plaintiff, a motorcyclist, suffered serious injuries. It was determined that the party responsible for allowing the donkeys to escape created a public nuisance on the highway.

Conflicts of Interest – Eugene A.G. Cipparone and Ted Tjaden
Release #2

What’s New?

This release features a rewritten and revised Chapter 3, aptly renamed “The Legal Framework”. The updated commentary includes references to academic literature, provincial and territorial codes of conduct, and case law and legislation specific to conflicts of interest. The Chapter also highlights broader conflicts of interest issues in Canada, the U.K., the U.S. and Australia, and in European civil law contexts.

Judicial Review of Administrative Action in Canada – Donald J.M. Brown et al.
Release #2

What’s New?

Standard of Review of Administrative Decisions that Infringe Charter Rights

In York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, the Supreme Court addressed two main issues. First, whether the Charter applies to school boards, and second, the standard of review of administrative decisions that infringe Charter rights. On the first issue, the Court found that the Charter applies to school boards.

The underlying facts involved a school principal accessing two teachers’ computers. The teachers received reprimands based on what the principal found on their computers. The union grieved the reprimands. The arbitrator dismissed the grievance. While acknowledging that the teachers had a reasonable expectation of privacy, the arbitrator also found that it was diminished in the circumstances.

The union sought judicial review. The Divisional Court applied a reasonableness review to the arbitrator’s decision. The Court of Appeal concluded that section 8 was engaged, even though it was not argued before the arbitrator, and that as such the standard of correctness applied.

The Supreme Court agreed but was split on the standard review to be applied to the arbitrator’s application of section 8 (or lack thereof). The majority found that correctness applied. The minority applied reasonableness. In reaching their conclusion, the majority held that “whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis – is a constitutional question.” Relying on Vavilov, the majority wrote that these types of constitutional questions require a “a final and determinate answer from the courts.”

In applying the reasonableness standard, the minority find that the privacy rights at issue were heavily dependent on the “specific factual and statutory context.” Also relying on Vavilov, the minority noted that not all constitutional matters will require a final and determinate answer, and that those that do not require such an answer will fall outside the exception to the presumption of reasonableness review. Given the specific factual and statutory circumstances in this matter, this matter did not require a correctness review. As such, the minority concluced that reasonableness should apply.

Appellate Review of Treaty Rights

In Ontario (Attorney General) v. Restoule, 2024 SCC 27, the Supreme Court addressed a number of important issues, including the appropriate standard of appellate review of historic treaties between the Crown and First Nations communities. The Court found that the standard of correctness should continue to apply. In reaching this conclusion, the Court held there were at least two reasons why, as a matter of legal policy, the interpretation of historic treaties should be subject to a correctness review. First, treaty rights are constitutionally protected and engage the honour of the Crown. The Court noted this conclusion was consistent with its decision in Vavilov where it held that the correctness standard applied to constitutional questions including “the scope of Aboriginal and treaty rights under section 35 of the Constitutional Act, 1982.” Second, the “treaty interpretation has significant precedential value because it concerns enduring, multi-generational compacts.”

Notwithstanding the conclusion that the interpretation of an historic treaty right is reviewable for correctness, the Court also found that “the factual findings underpinning that interpretation” are reviewable only for palpable and overriding error. This conclusion is consistent with Court’s decision in Housen.

Standard of Review of Regulations

In Auer v. Auer, 2024 SCC 36 the Supreme court clarified that the standard of review applied to challenges to regulations is, as required by Vavilov, reasonableness. In reaching this conclusion, the Supreme Court departed, in part, from its previous holding in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64 where the Court had held that regulations “must be “irrelevant”, “extraneous” or “completely unrelated” to the statutory purpose to be found to be ultra vires on the basis of inconsistency with statutory purpose. In departing from Katz, the Court re-iterated that Vavilov provided a comprehensive approach to judicial review, that it established a presumption of reasonableness review, that there was no exception to the presumption of reasonableness in this case, that a “robust reasonableness review is sufficient to ensure that statutory delegates act within the scope of their lawful authority” and that all of these considerations lead to the conclusion that “Vavilov’s robust reasonableness standard is the default standard when reviewing the reasonableness of subordinate legislation.”

TransAlta Generation Partnership v. Alberta, 2024 SCC 37 is the companion case to Auer v. Auer. At issue in TransAlta was the standard of review of discriminatory regulations. Specifically, the Court was asked to address the question if whether the 2017 Alberta Linear Property Assessment Minister’s Guidelines (2018) issued by the Minister of Municipal Affairs under Municipal Government Act, R.S.A. 2000, c. M-26 were ultra vires the Minister. The Linear Guidelines excluded coal-fired electricity generation facilities scheduled to be phased out by 2030 from being able to claim an accelerated depreciation of value of these facilities for municipal taxation purposes.

The Court concluded that the standard of review is reasonableness, as required by Vavilov. In applying the reasonableness standard, the Court held that “reviewing the vires of subordinate legislation is fundamentally an exercise of statutory interpretation to ensure that the delegate has acted within the scope of their lawful authority under the enabling statute.” In this case, the Court concluded that that the Linear Guidelines were discriminatory (in administrative sense) but that the discrimination at issue was statutorily authorized. As such, the Court also concluded that the Linear Guidelines were consistent with the purposes of the MGA.

Lawyers & Ethics: Professional Responsibility and Discipline –Gavin MacKenzie
Release #2

What’s New?

Chapter 26 – 26:20 Decision and Reasons – Costs – In a 2024 case the Ontario Law Society Tribunal Hearing Division significantly reduced the Law Society’s claim for costs after a 21-day hearing in which the Law Society made 61 allegations of professional misconduct but proved only nine of them. The Respondent, a licensed paralegal, was found guilty of breaching her duty of integrity and her licence was revoked. The Hearing Division found that the eight additional allegations that were established were not necessary to the decision on penalty and that the Respondent should not be required to pay the costs associated with them, as the Law Society’s decision to proceed with them was inefficient considering the high likelihood of success on the breach if integrity allegations. The Hearing Division held that a licensee should not be responsible for unnecessary costs. The costs award of $10,000 payable over five years was also informed by the Respondent’s limited income.

Widdifield Executors and Trustees – Carmen S. Thériault
Release #6

What’s New?

Testamentary Document – Legal Effect of Probate – Binding of 3rd Parties – Almost two years after the issuance of the Certificate of Appointment of Estate Trustee with a Will (CAETW), certain beneficiaries initiated a negligence action against the solicitor who drafted the deceased’s will for
negligence in failing to give effect to the latter’s intentions in the will. Another two and a half years later, the plaintiffs also filed an application for directions seeking a declaration that the intestacy provisions under the Succession Law Reform Act (Ontario) governed the distribution of the residue of the deceased’s estate. The application was dismissed. In coming to its decision, the court
provided a number of observations regarding the legal effect of probate, saying at paras. 17 et seq.:

17 Probate is the process by which a will’s validity is determined. 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; (4) the will was not affected by mistake; and (5) the testator
had testamentary capacity.
18 The Court’s jurisdiction in matters of probate is inquisitorial. The court’s function and obligation are to ascertain and pronounce which documents constitute the testator’s last will. The granting of probate does not bind only the parties to the proceeding; unless and until probate is set aside, it operates in rem and can affect the rights of third parties.
19 If the application is not contested and the will appears in good order, some of the matters required to be proved will be presumed. However, if probate is contested, those opposing it may argue that the will fails to meet one or more of the required conditions. A will cannot be probated if the testator did not know and understand its contents. In cases where probate is challenged on the grounds that the testator did
not know or understand the will’s contents, the propounders of the will bear the burden of proving that the testator knew and approved of the contents at the time it was executed.
20 When probate is granted, the court certifies that the specific writings constitute the deceased’s will and that the individuals named as estate trustees have the authority to act on behalf of the testator’s estate.
21 Subject to the remedies of revocation and rectification, a grant of probate is conclusive regarding both the appointment of the grantee as executor and the validity and contents of the will. This conclusiveness means that unless the grant is revoked, no one can challenge the identity of the executor the testator’s capacity, or assert that the will was forged, as such actions would contravene the seal of the court.
22 Admitting documents to probate as testamentary documents does not prevent the court from construing them to determine their true effect. If a question arises regarding the meaning of a will, the superior court takes the will as probated and interprets it accordingly. [footnotes omitted]

The court found that the negligence action was a collateral attack on the CAETW. The plaintiffs were directly challenging whether the testator knew and understood the contents of the will. To succeed in this negligence action, they had to establish that the deceased’s lawyer negligently failed to give effect to his intentions when he drafted the will. However, such a finding would contradict the grant of probate, which confirmed the testator’s knowledge and understanding of the contents of the will: Cooke Family Trust et al v. Dioguardi et al, 2025 ONSC 370, 2025 CarswellOnt 633 (Ont. S.C.J.).

Competence of Estate Trustee – Interim Removal and Replacement – The respondent was removed as the executrix and trustee of her father’s estate on an interim basis pending the earlier of the outcome of the applicants’ motion to remove her permanently. She was replaced by the applicant for the interim period. The applicant had been frustrated by the slow pace of the administration and, inter alia, by the estate trustee’s failure to comply with court orders. The respondent requested an adjournment or deferral of the proposed motion because of her ill-health, saying her recovery required time away from her duties as estate trustee. Ordering the interim removal, the court noted at para. 34 that there was no specific rule or statute authorizing the court to remove an
estate trustee and appoint a caretaker on an interim basis. However, it stated that it could not see how it could “leave the ship of the estate without a captain” while reporting remained outstanding under a court order and, most importantly, while the major asset of the estate, a farm property, was for sale. It observed that managing the sale process for the farm would require more than
the estate’s lawyer at the helm. The estate trustee must be available to manage the process, communicate with the other beneficiaries and deal with offers. Given this, the respondent’s submission that she needed time away from her duties created a situation of urgent risk to the welfare of the beneficiaries: Panchyshyn v. Pietron, 2025 ONSC 2324, 2025 CarswellOnt 5405 (Ont. S.C.J.).