The following looseleaf texts have been updated:
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IN CANADA
Release No. 4, December 2025
What’s New in this Update
This release features updates to the case law and commentary in the following chapters: 8 (Statutory and Constitutional Procedural Requirements), 9 (Pre-Hearing Participatory Rights: Notice, Disclosure, Delay and Adjournments), 10 (The Hearing and Participatory Rights), 11 (Interest, Bias and Independence), 12 (Review of the Decision-Making Process), 13 (The Grant of Authority), 14 (Review of the Exercise of Authority: Administrative Adjudication), and 15 (Review of Non-Adjudicative Administrative Action).
Highlights
The Courts remained busy in late 2024 and early 2025 issuing a number of decisions that have important implications for the judicial review of administrative action in Canada. Below is brief summary of some of the most notable decisions.
Honour of the Crown
In Quebec (Attorney General) v. Pekuakamiulnuatsch Takuhikan, 2024 SCC 39, the Supreme Court concluded that contracts between the Crown and Indigenous communities may engage the honour of the Crown. In brief, the issue before the Court was a tripartite agreement between Canada, Quebec and Pekuakamiulnuatsch Takuhikan to fund an Indigenous police force for the Indigenous community. Overtime it became
clear that the funding was insufficient to meet the police force’s needs. The police force ran a significant deficit. Pekuakamiul nuatsch Takuhikan sought to negotiate appropriate funding. Canada and Quebec refused to do so. Pekuakamiulnuatsch Takuhikan sued.
The Supreme Court set out a two part-test to determine if the honour of the Crown has been engaged by contracts between the Crown and Indigenous communities. The Court wrote as follows:
[161] First, the agreement in question must be entered into by the Crown and an Indigenous group by reason and on the basis of the group’s Indigenous difference, which reflects its distinctive philosophies, traditions and cultural practices. [162] It is well settled that the principle of the honour of the Crown rests on the “special relationship” between the Crown and
Indigenous peoples. As in the case of an explicit obligation owed to an Indigenous group and enshrined in the Constitution, the
honour of the Crown is engaged only by an obligation assumed by the Crown on the basis of its “special relationship” with the
Indigenous group, which is different from the one it has with population in general. … Moreover the honour of the Crown will
apply only if the contract has a collective dimension. Agreements relating to individual rights, even if they are between the State
and an Indigenous contracting party, will generally not engage the honour of the Crown.
[1631 Second, contractual agreements will engage the honour of the Crown where they relate to an Indigenous right of selfgovernment, whether the right is established or is the subject of a credible claim. In the case at bar, Pekuakamiulnuatsch Takuhikan argues that having an Indigenous police force is an exercise of. its right of self-government. I therefore take care to limit my comments accordingly. While we do not have to decide the question in order to resolve this case, I am not, however, excluding the possibility of recognizing, in a different context,
that other Indigenous rights or interests might also engage the honour of the Crown in connection with a contractual undertaking.
The Supreme Court also provided insight on the remedies available where the honour of the Crown has been breached. The Supreme Court noted that, as part of “reconciliatory justice”, remedies should be alert to Indigenous perspectives and should compensate claimants not only for past wrongs but also “place the parties on the path to reconciliation.”
Production of Documents
In United States of America and Rabang, 2025 BCCA 7, the British Columbia Court of Appeal considered a request for disclosure with respect to the Minister’s decision to surrender a fugitive in the context of an extradition hearing. The Court of Appeal held that the appropriate framework for considering the request was through the application of principles of judicial review of the decision makers. In applying these principles, the Court of Appeal concluded that disclosure should be limited to the materials actually before the decision-maker. As such, communications that were not before the decision-maker do not form part of the record, even where summaries of those communications were considered by the Minister.
THE LAW OF DAMAGES
Release No. 1, December 2025
What’s New in this Update
Defamation Damages
In James Bay Resources Limited v. Mak Mera Nigeria Limited, 2025 ONCA 448, 2025 CarswellOnt 10017, the Ontario Court of Appeal held that it was an error to award substantial damages to a corporation that had been defamed absent admissible evidence of harm or impact.
Punitive Damages
In Chung v. Chung, 2025 BCCA 136, 2025 CarswellBC 1275, the British Columbia Court of Appeal held that it was an error not to award punitive damages against the respondent notwithstanding findings that the respondent had breached his fiduciary duties of loyalty and trust and took active steps to conceal that conduct for years. The British Columbia Court of Appeal held that these findings at trial “in their cumulative effect rationally required an award for punitive damages.”
Privacy Law
In Insurance Corporation of British Columbia v. Ari, 2025 BCCA 131, 2025 CarswellBC 1206, the British Columbia Court of Appeal has confirmed that wherever privacy rights are violated, there is a loss to the plaintiff, regardless of whether the plaintiff is ever made aware of the violation.
LAWYERS & ETHICS: PROFESSIONAL RESPONSIBILITY AND DISCIPLINE
Release No. 5, December 2025
What’s New in this Update
This release features updates to Chapter 5-Conflicts of Interest in Litigation, Chapter 25-Rules of Professional Conduct, Chapter 26-Discipline Proceedings, Appendix IF-Issues in Focus and Appendix SLL-Selected Legal Literature.
Highlights
Chapter 26-Discipline Proceedings-§ 26:18. Penalty
Although a reprimand is sometimes dismissively characterized as a “slap on the wrist”, the Law Society of Ontario Tribunal has observed more than once that a reprimand is not without reputational consequence, as a reprimand leaves “a permanent mark on a lawyer’s record and affects his professional reputation and future business opportunities”.
Law Society of Ontario v. Constantine, 2020 ONLSTH 15, quoted with approval in Law Society of Ontario v. Diamond, 2024 ONLSTH 145.
Issues in Focus-§ IF:2.
How can a client be held to be contributorily negligent in professional negligence matters involving lawyers? The general standard regarding professional liability for lawyers is that “a lawyer is required to exercise the standard of care of the reasonably competent member of his profession similarly situated in the discharge of his retainer.” In failing to meet this standard, “[a) solicitor who in the course of carrying out a transaction conducts himself in a manner amounting to professional negligence is liable for the damages arising from his failure to meet his professional duties”. The test to be applied in cases alleging solicitor’s negligence will depend on various circumstances, including the sophistication and financial experience of the client, which may have an effect on the extent of the solicitor’s obligations to the client.
Several defences may be put forward to limit or negate liability for professional negligence, including contributory negligence on the part of the client. For the most part, it will be extremely difficult for a lawyer to demonstrate contributory negligence by the client. However, where the client is also a lawyer, or other sophisticated actor, contributory negligence may be easier to prove.
WIDDIFIELD ON EXECUTORS AND TRUSTEES, 6th EDITION
Release No. 2, February 2026
What’s New in This Update
This release contains amendments and updates to the commentary in Chapter 2 (Assets); Chapter 4 (Expenses and Legal Costs); Chapter 5 (Bequests and Beneficiaries); Chapter 15 (Resignation, Removal and Appointment of Trustees); and Words and Phrases.
Highlights
Lapse-Anti-lapse provisions-Contrary intention
The deceased’s will provided that her real estate was to be left to her husband and, in an Alternative Transfer of Property clause, if he predeceased her, a property was to be left to her son and another to her daughter. This clause provided that the son was to receive the property left to him “absolutely”, as was the daughter. The will also contained the common clause intended to exclude a testamentary gift from, for example, the beneficiary’s net family property under s. 4(2) of the Family Law Act, R.S.O. 1990, c. F.3. The son predeceased the mother and the daughter argued that the two provisions manifested a contrary intention that would oust the operation of the anti-lapse provision. The court did not agree. It found that the words “for their own use absolutely”-or, as here, the word “absolutely” were not in themselves sufficient to demonstrate a contrary intention; this depended upon the totality of the will, the language used in the will, and the circumstances surrounding the creation of the will to determine the necessary intention of the testator. It concluded that the deceased’s intention in transferring the property to the son “absolutely” had its ordinary meaning, which is a gift of a full estate in fee simple. The word “absolutely” in the will did not express any intention to gift over the daughter should the son predecease the testator. With regard to the clause related to the Family Law Act, it found that the clause would only become operative if one of the beneficiaries separated or divorced. It was to protect her son during his lifetime and did not demonstrate an intention to prevent the property from passing to his wife following his death. The daughter also argued that the testator intended to treat her children equally and that the Alternative Transfer of Property clause was best understood as a class or joint gift of all her real property to her children. The court agreed that the testator generally sought to treat her children equally, but this general objective did not manifest an intention that would oust the anti-lapse provision in respect of the property: Devonport v. Devonport, 2024 ONSC 6764, 2024 CarswellOnt 19151 (Ont. S.C.J.), affirmed 2025 ONCA 753, 2025 CarswellOnt 18191 (Ont. C.A.).
Rectification of will-Intention of testator-Language of will requiring addition of words
The cousins of the deceased initially applied for a declaration of intestacy, as to the residue of the deceased’s estate. The deceased’s will did not name a residual beneficiary. The residue made up the entirety of the estate. An application was granted in part, with partial intestacy declared by the application judge. The appellant was named the personal representative in the will but was not given a clear gift. The will stated only that: “[i]n the event that [the appellant] predeceases me then I bequeath my estate to the Dogwood Foundation”. The personal representative claimed that it was the deceased’s intention for her to be the beneficiary of the estate. The personal representative’s appeal from the application judgment was dismissed. The court found that conflicting inferences were present in the will, with extrinsic evidence being insufficient to clarify the testator’s intention. The Court of Appeal found that the will clauses were not inconsistent with the appellant’s claim but that the will could not be interpreted as naming a residual beneficiary based on its language without adding words, which was not the role of the court. The evidence for rectification was not sufficient:
7. That said, the problem created by the will as drafted is that the interpretation advocated for by the appellant is not available without adding a provision that is not there. In other words, even without treating any clause in the will as inconsistent with an intention that the appellant receive the residue of the estate, the will, as drafted, cannot be interpreted as naming a residual beneficiary. Rather, the appellant needed to make a case for rectification. This requires “clear and convincing evidence . . . that the will does not reflect the testator’s intentions because of (a) an accidental slip, omission or misdescription, or (b) a misunderstanding of, or a failure to give effect to, the testator’s instructions by a person who prepared the will”: Wills and Succession Act, SA 2010, c W-12.2, s. 39(1). On this record, with no evidence regarding the testator’s instructions, and only the contingency clause and some information about the testator’s circumstances and relationships that was of limited probative value, it was open to the chambers judge to determine that the testator’s intentions
were not sufficiently clear.
Constant Estate (Re), 2025 ABCA 329, 2025 CarswellAlta 2298 (Alta. C.A.).
Legal costs of executor-Executor defending removal application-Impact of testator’s responsibility for selection of estate trustee
In a successful application to remove her sister as estate trustee, a beneficiary sought costs from the trustee personally as special costs, and an order that the trustee not be able to recover her own costs from the estate for defending this application. The court stated that there was precedent for denying costs from the estate for an executor who unsuccessfully defends themselves from removal on the basis that they are defending themselves personally in the litigation, not the estate, and it would be unfair to the beneficiaries: Levi-Bandel v. Talesiesin Estate, 2011 BCSC 247, 2011 CarswellBC 384 (B.C. S.C. [In Chambers]), paras. 33-36. It also said there was precedent for special costs being awarded against an executor who was removed for showing a troubling disregard for their duties as administrator and who placed their own interests above those of the beneficiaries: Estate of Forbes McTavish Campbell, 2015 BCSC 774, (sub nom. Campbell v. Campbell) 2015 CarswellBC 1254 (B.C. S.C.). It found, in this case, that the trustee had not been able to distinguish her own interests from those of the estate, and served her own interests by continuing to live in estate property, rent-free, for two and-a-half years despite her sister’s repeated demands for the sale and distribution of her inheritance. Also, the court found that the beneficiary had been required to hire legal counsel in this matter and did not have the means to pay for this outside the distribution of her inheritance from the estate. However, it found that part of the responsibility for the situation was rooted in the testator’s decision to appoint one of his daughters as executor of his will, knowing of the conflict between them. The court also noted that having the parties provide submissions on special costs would further delay the matter and eat into their resources and the resources of the estate. In its view the cost of further submissions and litigation would be disproportionate to the value of the estate. Given all the circumstances the court found, while acknowledging it was an increasingly rare outcome, that this was a case where the estate should bear the costs of the application: Koshman Estate (Re), 2025 BCSC 2193, 2025 CarswellBC 3f32 (B.C. S.C.).
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