Looseleaf Updates – December

by | Dec 24, 2025 | Commentary, New Books | 0 comments

The following looseleaf texts have been updated:

Orkin on the Law of Costs, Release No. 7, November 2025

What’s New in this Update

This release includes updates to Chapter 2 (Party-and-Party Costs):

  • Party-and-Party Costs—Liability for Costs—Liability of Successful Party for Costs—In this case before the Ontario Superior Court of Justice the defendant brought a motion to dismiss the plaintiffs’ action for delay for failing to comply with a court ordered timetable and for various breaches of the Rules of Civil Procedure (Ont.). The motion judge denied the defendant’s motion but ordered a new litigation timetable peremptory on the plaintiffs. The court then considered the submissions with respect to costs. Based on all of the circumstances and the applicable law, the motion judge ordered that the plaintiffs pay costs of the motion to the defendants in the amount of $4000 all-inclusive. Pokrajac et al. v. The Corporation of the Town of Essex et al, 2025 ONSC 595 (Ont. S.C.J.).
  • Party-and-Party Costs—Several Defendants—Third Party Proceedings—This matter in the Ontario Superior Court of Justice involved in a motor vehicle collision. The plaintiff suffered serious injuries. The defendant commenced a third party claim against the parties responsible for winter road maintenance operations for the subject highway. In her costs submissions, the defendant conceded that there was never any issue of contributory negligence in the main action. The only issue in the main action was damages. The entire
    focus of the defendant’s liability argument was against the Ministry of Transportation for Ontario (“MTO”). The plaintiff and the defendant finally resolved the main action for $210,000 plus prejudgment interest with only costs to be agreed upon or assessed. The MTO refused to accept the settlement was reasonable. It took the position that the defendant would have to prove the damages as against it. The court found it deeply concerning that the MTO would not accept a relatively modest settlement of $210,000 as reasonable given the plaintiff’s evidence of his injuries and lost career. As the court found, the MTO’s position on this issue was
    entirely unreasonable and would be factored into its cost award. Continuing on the judge said, “The defendant was insured. The insurer is a sophisticated litigant who was instructing its counsel. The insurer knew it was ultimately responsible to the plaintiff for all damages. It had the funds to pay the claim in full yet it decided to make a tactical decision to drag out this litigation, putting undue pressure on an
    innocent plaintiff, even after the plaintiff had reduced its claim to an amount well within the range of what could have been awarded at trial. In my view, once the plaintiff made his offer in April 2024, the matter should have resolved. Instead, the defendant insisted on contribution from the third party. This forced the plaintiff to prepare for a lengthy trial. While it was open to the defendant to make tactical decisions, it does so at the risk of exposing itself to additional costs.” In the court’s discretion on costs, the judge accepted the plaintiff was entitled to legal fees on a partial indemnity basis. The third party took the position that it was entirely unreason able to bring it into this litigation and was seeking partial indemnity costs. As the third party was successful in its defence of the third-party claim, the third party was entitled to costs. Costs are to “indemnify” parties — either on a partial, substantial, or full indemnity basis. The court cannot assess what it is indemnifying without knowing what is actually being charged to the client. I therefore accept the defendant’s position that I cannot rely upon the amounts set out within the MTO’s Bill of Costs as it does not provide that invaluable
    piece of information.” Mitten v. Ministry of Transportation, 2025 ONSC 2645 (Ont. S.C.J.).

Remedies in Tort, Release No. 11, November 2025

What’s New in This Release

  • This release features updates to Chapters 2 (Assault and Battery), 6 (Defamation), 15 (Malicious Prosecution), 16 (Negligence (General)), 19 (Negligence (Special)), 20 (Nuisance), 27 (Developing Torts), 29 (Liability), 29A (Vicarious Liability), and 30 (Damages).

Highlights

  • Chapter 6—DEFAMATION—6:29 Judicial Proceedings— In Tuharsky v. O’Chiese First Nation, 2025 CarswellAlta 1715, the plaintiff was former general counsel of the defendant First Nation. Defendant engaged in litigation with former lawyers and in course of that litigation, negative comment about the plaintiff made in pleading and hearings; plaintiff sues in defamation. Chambers judge rejects absolute privilege claim of defendant; on appeal, defamation claim dismissed. Once statement made within a step in judicial proceeding there is an absolute privilege regardless of the content of statement or motive behind it. Moreover, it is not relevant whether the statement was false or made with malice; nor is there any exception for statement about a non-party in the proceeding.
  • Chapter 16—NEGLIGENCE (GENERAL)—16:26 Residual Policy— In Paddy-Cannon v. Canada (Attorney General), 2025 CarswellOnt 8084, plaintiffs were indigenous children placed with non-indigenous family members after being taken into care. Plaintiffs suffered emotional and physical abuse while with family members and sue Canada in negligence as a result of government failing to follow through on plan to return plaintiffs to indigenous family in Saskatchewan. Canada owed the plaintiffs an ad hoc fiduciary duty (required to act in best interest of the children and were a defined group of individuals that were vulnerable to Canada’s control) and had a positive duty of care to the plaintiffs (grounded in fact that Canada had control of the plan for a return. Plan was inter-provincial and Canada’s responsibility indigenous people’s culture and identity). Moreover, harm associated with loss of culture, language and identity was reasonably foreseeable.
  • Chapter 20—NUISANCE—20:21 Injunctions— In Hill v. Herd, 2025 CarswellBC 1530, homeowner at trial successfully establishes nuisance claim as against adjacent gas station that renovated its business thereby creating light and sound pollution as well as fumes to impact the homeowners’ enjoyment of their property. Despite finding a nuisance, the trial judge refused to is sue an injunction against the gas station; this on the basis that some measures had been taken to lessen the nuisance, the renovations provided for safer delivery and storage of fuel and the gas station was integral to the community; the trial judge instead ordered damages. While the trial judge erred in referring to the injunction sought as a discretionary equitable remedy rather than there being a prima facie basis in successful nuisance claims. The trial judge was justified in declining to issue an injunction based on the facts.

Widdifield On Executors And Trustees, 6th Edition Release No. 10, November 2025

What’s New in This Update:
This release contains amendments and updates to the commentary in Chapter 2 (Assets); Chapter 5 (Bequests and Beneficiaries); Chapter 13 (Duty to Keep Records); Chapter 15 (Resignation, Removal and Appointment of Trustees); and Words and Phrases.

Highlights of This Release, Include:

Presumption in Favour of Early Vesting — Ademption — Abatement —Impact on Gifts of Real Estate — The testator died in 1994, he was survived by his wife and their 13 children. In his will, dated February 20, 1989, he gave a life estate to his wife after which two farm properties were to go to two of his sons, Robert and Winfield. These gifts were subject to the sons paying specified amounts ($50,000 and $90,000 respectively), for the properties. The will, testator died in 1994, he was survived by his wife and their 13 children. In his will, dated February 20, 1989, he gave a life estate to his wife after which two farm properties were to go to two of his sons, Robert and Winfield. These gifts were
subject to the sons paying specified amounts ($50,000 and $90,000 respectively), for the properties. The will, inter alia, provided that a mortgage to Robert was to be forgiven and the residue of the estate was to be divided among all his children with the exception of Robert. The testator died five years after preparing his will. His wife lived another 24 and a half years. By then, the value of the two farms had “skyrocketed”, dwarfing the specified amounts his sons were required to pay for them and dwarfing the gifts to the testator’s other children.
Robert died intestate before his mother, he was survived by his wife Lynn. In 1994, with the consent of all beneficiaries, the estate had assigned the mortgage to the testator’s wife and Robert started paying the mortgage interest to his mother and not to the testator’s estate. In 2018, his mother executed a new will that did not include any gift to Robert’s estate of mortgage forgiveness. She died shortly after. Her death triggered a tax liability which, as of June 2022, was about $462,000 and the CRA had begun enforcement proceedings against the estate. The bulk of this liability arose because of the deemed disposition of the two farms. The estate was unable to pay the amounts it owed from the residue or from the mortgage. In order to meet these obligations, one or both of the farms had to be sold, or money otherwise raised against the value of the farms. The court had to decide several issues. Among these was whether the gift of mortgage forgiveness to Robert failed because the mortgage had been assigned to his mother. The court found that it did. The court noted that all beneficiaries, including Robert, had agreed to the assignment. The trustees had broad power under the will to “sell or otherwise dispose of” the estate’s assets. The phrase
“otherwise dispose of”, in the view of the court, was sufficient to include “assign”. Robert and his wife acted on the assignment by making payments to Robert’s mother directly. They continued to benefit from the interest-only aspect of the mortgage. The mother never demanded payment of the mortgage after it matured. The validity of the assignment went unchallenged for 26 years. In these circumstances, the court found that it would be wrong to now hold that the assignment was invalid. The court also had to determine whether Robert needed to have survived his mother for the gift of the farm to him to succeed. In the court’s view the answer to this was no. The court found that the presumption in favour of early vesting was applicable in this case. Noting that this presumption was sometimes referred to as the rule in Browne v. Moody, 1936 CarswellOnt 92, [19361 O.R. 422 (Jud. Corn. of Privy Coun.): Fraser Estate, Re, 1986 CarswellOnt 661, 55 O.R. (2d) 268 (Ont. H.C.); Howes v. Hartley, 1986 CarswellSask 285, [19871 2 W.W.R. 749 (Sask. C.A.), at para. 10; Vea Estate v. Clemson Estate, 2014 BCSC 1970, 2014 CarswellBC 3119 (B.C. S.C.), at para. 25; Bradley Estate, 2023 BCSC 618, 2023 CarswellBC 1001 (B.C. S.C.), at para. 23, the court pointed out that the decision in Browne in fact appears to address the contingency of a residuary beneficiary dying before the life tenant. It noted that although this was obiter, MacMillan L.J. wrote in that decision that, “[a] legatee predeceasing the son without leaving issue would not be affected by the clause and the interest of such a legatee would pass on her death to her representatives.. .This is in accordance with well-settled principles.” The court went on to point out that multiple Canadian cases decided after Browne, did not distinguish it on this basis: Merritt, Re, 1945 CarswellOnt 224, [19451 O.W.N. 470 (Ont. H.C.); Rauckman, Re, 1969 CarswellSask 84, 71 W.W.R. 73 (Sask. Q.B.); Howes v. Hartley; McKeen Estate v. McKeen Estate, 1993 CarswellNB 35, 49 E.T.R. 54 (N.B. Q.B.); Schradi Estate, Re, 2006 CarswellOnt 1765, 24 E.T.R. (3d) 63 (Ont. S.C.J.); and Vea Estate v. Clemson Estate. In each of these cases, a residual legatee died before the life estate ended and it was held that the residual legatee’s estate was entitled to the gift because the residual gift vested upon the testator’s death. The trustee also argued that the gift of the farms to Robert and Winfield were void for uncertainty. The will instructed the trustees to give the first right to purchase the farms at the price of $50,000 and $90,000 respectively and “upon such terms as may be mutually agreed between [them] and my trustees.” The trustee submitted that this phrase left terms and conditions to be determined by a future agreement, and this was unenforceable. The court did not agree. It noted that the trustee had not identified any terms or conditions that might have presented a problem. The key factor—price—had been determined by the will and furthermore, there has been no failure to agree to terms after good faith efforts. To satisfy the outstanding tax liability, it was necessary for the court to then determine how the rules of abatement impacted the gifts. Citing Albert H. Oosterhoff, Oosterhoff on Wills, 9th ed. (Toronto: Thomson Reuters, 2021), at p. 722, the court observed that the common law order of abatement for testamentary gifts was: (1) residuary personalty; (2) residuary real property that is not specifically devised; (3) general legacies, including pecuniary legacies payable from residue; (4) demonstrative legacies; (5) specific bequests and legacies of personalty; and (6) specific devises of real property. The court noted that it had considered whether there was anything in the language of the will that would suggest that the gifts of the farms should not abate rateably (i.e., proportionately, or pro rata) and it could find nothing in the will to support that. Further, the court went on to hold that the trustee had a discretion to sell, mortgage, or otherwise raise funds from the farms or to enter into an arrangement with Robert’s estate or Winfield (or both of them) that allowed them to receive the farms but also allowed the estate to pay all its debts. A motion was brought by Lynn and Winfield for a stay of the court’s order permitting the trustee to sell the farm properties, pending appeal. This was dismissed. See Stewart Estate v. Stewart, 2025 ONCA 575, 2025 CarswellOnt 12228 (Ont. C.A.): Hale v. Stewart, 2025 ONSC 2275, 2025 CarswellOnt 7616 (Out. S.C.J.).

Express Trust —— Real Estate — Declarations of Trust — Purchase Money Resulting Trust — The deceased died intestate. At the time of his death, he owned a condominium. Two weeks prior to purchasing the condomin ium he had signed a declaration of trust declaring that he held the condomin ium in his name on behalf of the Islamic School of Ottawa. This was the prede cessor organization to the respondent, the Arabic and Islamic Education Foundation of Ottawa (“Foundation”). The deed indicated that the property was transferred to the deceased “in trust,” but without any reference to the Founda tion or its predecessor. The court found that although the deceased may have intended to hold the property in trust, the requirements to create an express trust had not been met: the deceased did not own the property when he signed the declaration of trust. Because of this, he was not legally enabled to declare a trust when he signed the declaration. The court cited the Court of Appeal in Ruhner v. Bistricer, 2019 ONCA 733, 2019 CarswellOnt 14766 (Ont. C.A.), at para. 58, additional reasons 2020 ONCA 226, 2020 CarswellOnt 4098 (Ont. C.A.), leave to appeal refused 2020 CarswellOnt 3973, 2020 CarswellOnt 3974 (S.C.C.): “Any type of property can be the subject-matter of a trust, save for ‘future property’, that is, property that the settlor does not yet own”. The respondents had submitted that the deceased, as a layperson, had simply signed the declaration of trust when he was asked to do so by the bank. He would not have known it would be insufficient to create a trust. Moreover, over the years, he had continued to sign and receive documents referring to the property as be ing “in trust”. The respondents stated that, through these documents, he had effectively declared himself to be a trustee. In making this submission they relied on Elliott (Litigation Guardian of) v. Elliott Estate, 2008 CarswellOnt 7448, 45 E.T.R. (3d) 84 (Ont. S.C.J.), at para. 39, where the court held that a trust may be constituted through a declaration of self as trustee and that it is not necessary to use technical or legal terms to do so. It is sufficient that the in dividual or organization demonstrate the intention to become a trustee. The court held, however, that a self-declaration alone was not sufficient to establish an express trust—as was held in Elliott, all of the other requirements of an express trust had to be met. It observed that the important factual distinction between Elliott and the present case was that the matter before it involved land. As a result, the formality requirements in the Statute of Frauds, R.S.O. 1990, c. S.19, were engaged and section 9 required that all declarations of trust in land be proved by a writing signed by the party who is by law enabled to de clare such trust. While the documents referred to by the respondents might be evidence of the deceased’s (undisputed) intention to hold the property in trust, they did not otherwise meet the requirements for establishing an express trust. This was because they did not identify the beneficiary and they provided no certainty that the Foundation or the School was the object of the trust. More over, while many of the documents referred to the property, they did not clearly identify it as the subject of the trust. The respondents’ alternative argument was that there was a resulting trust in favour of the Foundation, based on its financial contributions to the purchase of the property. The court found that there was no evidence, however, that the Foundation contributed to the purchase price of the property. The Foundation had made mortgage payments, but the court found that the payment of the mortgage cannot result in a purchase money resulting trust—the relevant time for the contribution of funds to give rise to a purchase money resulting trust is at the time the property is acquired. The mortgage payments proven in evidence were made years after the property was acquired. Moreover, it was not clear that those payments contributed to the purchase of the property. While the mortgage was in the deceased’s name, the Foundation or its predecessor occupied and had use of the property. The court observed that, therefore, the Foundation’s subsequent mortgage payments might be relevant to other types of claims, but they did not establish a purchase price resulting trust: May v. Alsousi et al., 2025 ONSC 795, 2025 CarswellOnt 2213 (Ont. S.C.J.).