The following looseleaf texts have been updated:
CONFLICTS OF INTEREST: PRINCIPLES FOR THE LEGAL PROFESSION
Release No. 1, March 2026
What’s New in this Update
This release introduces a new Chapter 4 — Conflicts of Interest in Corporate and Commercial Practice, which replaces the previous Chapter 4. The chapter has been fully updated, featuring new commentary, case law and legislative developments and an expanded bibliography.
Highlights
Analyzing conflicts of interest in corporate and commercial practice is inherently challenging due to the various kinds of business organizations, the number of stakeholders they have, whether the business organization is a person in law, the various roles and interests of the instructing persons, who the client is at the time of the file opening, who is actually or perceived to be owed the duties of loyalty, candour and confidentiality, whether the interests of the various stakeholders diverge during the course of the matter, identifying third parties over the course of the matter, the number of “near clients” with an interest in the outcome of the transaction, the impact of agreed upon Outside Counsel Guidelines, and the sophistication of the client and involvement of in-house counsel.
…
Given the range of business organizations and their various stakeholders, lawyers and law firms must take great care when opening matters, determining or defining who the client is, knowing which names to search when clearing conflicts of interest (including legal names, brand names, “doing business as” names, partner names, trustee names and names of affiliates and subsidiaries), identifying the instructing parties on the matter and their role within the business organization, and defining the mandate of the matter so that is has a clear and discernable end. In addition, lawyers and law firms should record all relevant names in the conflicts database that relate and are friendly to the client to ensure that future matters are not opened that turn out to be directly or indirectly adverse to the client or one of its many stakeholders.
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IN CANADA
Release No. 1, April 2026
What’s New in this Update
This release features a new View from the Top: Administrative Law in the Supreme Court of Canada 2025. In addition, updates have been made to the case law and commentary in the following chapters: 1 (Jurisdiction to Grant Prerogative Remedies, Declarations and Injunctions), 2 (The Application for Judicial Review), 3 (Discretionary Bars to Judicial Review), 4 (Parties to a Judicial Review Proceeding), 5 (Commencement of Judicial Review Proceedings), 6 (Interlocutory Proceedings, Perfection and Orders), 7 (The Duty of Fairness: its Scope and Content), and Appendix G (Ontario Statutes, Rules, Forms and Practice Directions).
Highlights – Note of Developments in Administrative Law in 2025
Habeas Corpus
Dorsey v. Canada (Attorney General), 2025 SCC 38, is a significant decision, in particular insofar as it broadens the scope of habeas corpus. In Dorsey, a majority of the Supreme Court confirmed that inmates can use habeas corpus to challenge refusals to move them to less restrictive conditions. The majority found that denial of a transfer to a lower-security institution can amount to a “deprivation of liberty”, even if the inmate’s situation has not worsened and even if the inmate has not previously experienced the less restrictive conditions. The issue, according to Moreau J. is simply whether the refusal to reclassify an inmate effectively keeps that inmate in a more restrictive environment.
The majority emphasized that prisoners retain residual liberty, and that security classification directly affects the degree of freedom inmates experience. The Court’s decision focused on whether conditions are more restrictive than they lawfully should be as opposed to whether there has been a clear change in status.
Justiciability, Jurisdiction and Limits of Judicial Oversight
In Canada (Prime Minister) v. Hameed, 2025 FCA 118, the Federal Court of Appeal held that the Federal Court lacked jurisdiction to hear an application for judicial review seeking to compel the Prime Minister and the Minister of Justice to fill judicial vacancies. In reaching this conclusion, the Federal Court of Appeal found that when advising on judicial appointments, neither the Prime Minister, nor the Minister of Justice, was a “federal board, commission, or tribunal” under the Federal Courts Act and that there was no statutory grant of jurisdiction over their roles.
The Federal Court of Appeal also emphasized the distinction between political and legal disputes. Without concluding that there was a constitutional convention requiring the government to fill judicial vacancies, the Federal Court of Appeal nonetheless concluded that breaches of conventions should be remedied through political, as opposed to legal, means.
Vavilov Extended
In Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency), 2025 FCA 147 the Federal Court of Appeal applied the Vavilov framework to the Canadian Food Inspection Agency’s “Stamping-Out Policy”. At issue was an order, under the Stamping-Out Policy, by the Agency to cull an entire flock of Ostriches in response to an outbreak of H5N1 avian flu on an ostrich farm in British Columbia.
The applicant challenged the application of the Stamping-Out Policy. The Federal Court of Appeal found that the approach to reviewing policy decisions prior to Vavilov had been overtaken by Vavilov and that there was no reason why “the reasonableness review of a discretionary policy decision should not be framed in the manner set out in Vavilov.”
In Rogers v. Director of Maintenance Enforcement Program, 2025 YKCA 12 at the Yukon Court of Appeal extended the application of Vavilov when it found that the failure to enact regulations that are necessary for a statutory provision to be given effect is typically justiciable and that the applicable standard of review is reasonableness.
The Court of Appeal held that where the failure to enact regulations “undermines … the purpose of the legislation” and “frustrates … the will of the legislature, the decision is unreasonable.” The Court of Appeal noted that Vavilov was intended to “apply broadly to the review of executive regulation-making action”, and that as such, “Vavilov must also apply to the review of executive regulation-making inaction.”
LAWYERS & ETHICS: PROFESSIONAL RESPONSIBILITY AND DISCIPLINE
Release No. 1, March 2026
What’s New in this Update
This release features updates to Appendix IF–Issues in Focus, Appendix SLL–Selected Legal Literature and Appendix WP–Words and Phrases.
Highlights
Appendix WP. Words and Phrases
CREDIBILITY–Credibility and reliability are not the same thing. Credibility is concerned with a witness’s veracity. Reliability, on the other hand, is concerned with the accuracy of a witness’s testimony; it involves consideration of a witness’s ability to accurately observe, recall, and recount the events in issue: Ford v. Lin, 2022 BCCA 179 at para. 104.
(Pearson v. Osseiran (2025), 2025 BCSC 1729, 2025 CarswellBC 2655 (B.C.S.C.) at para. 22, 23 Morishita J.)
Law Society of Ontario v. Constantine, 2020 ONLSTH 15, quoted with approval in Law Society of Ontario v. Diamond, 2024 ONLSTH 145.
MISCARRIAGE OF JUSTICE–. . . . A miscarriage of justice is a flexible concept that comprehends a wide range of circumstances. . . .
(R. v. Liu (2025), 2025 CarswellSask 397, 2025 SKCA 98 (Sask. C.A.) at para. 38 Leurer C.J.S., Drenan and Kilback JJ.A.)
Appendix IF. Issues in Focus
IF:10. Should a lawyer be disqualified from representing a party where that lawyer engages a paralegal who has had direct knowledge and access to the opposing party’s privileged information?
(Updated May 2025)
ORKIN ON THE LAW OF COSTS
Release No. 1, March 2026
What’s New in this Update
This release includes updates to Chapter 2 (Party-and-Party Costs).
Highlights
Party-and-Party Costs–Offer to Settle–Calderbank Letter–The defendants in this case was a law firm which was successful in their special chambers application for summary dismissal of the plaintiff’s claim against them. These defendants requested solicitor and own client, full-indemnity costs. The plaintiff suggested each party should bear their own costs. The allegations against the lawyer defendants included professional negligence and breach of fiduciary duty or conspiracy to employ fraudulent and deceitful means to cause the plaintiff to enter into an improvident share purchase agreement. The remedy sought by the plaintiff including judgment for $3 million for losses caused to the plaintiff and $100,000 for punitive and exemplary damages. The judge found that there was no evidence to show merit to the plaintiff’s claims in negligence, breach of fiduciary duty, or conspiracy against the lawyer defendants. Further, there was no evidence to merit aggravated, punitive or exemplary damages. Finally the judge found that the claims advanced were barred by the passage of time. The judge reviewed the bills of costs and considered the Rules and the case law related to costs generally and to solicitor and client costs specifically where there has been unproven allegations of fraud and dishonesty. The judge also took into consideration the Calderbank offer made prior to the special chambers application but after the pleadings were closed, documents and affidavits were exchanged, and the parties were questioned. The judge found that there was no reasonable basis on which to commence or continue this litigation. The judge concluded that solicitor and client full-indemnity costs were appropriate. Proportionality was not dependent on ability to pay. The judge awarded to the lawyer defendants the amount of $42,499.87 assessed on a solicitor and own client full-indemnity basis. Salame v. Chimayt, 2025 ABKB 205 (Alta. K.B.).
Party-and-Party Costs–Special Provisions as to Costs–Solicitor-and-Client Costs/Substantial Indemnity Costs–This was an application brought by the Administrator ad litem RH to recover legal costs following a successful appeal inter alia, temporarily staying their lawsuit pending a decision whether to certify a related putative class action. The applicants were seeking solicitor and client costs for that stay application. The related proposed class action was in relation to the catastrophic Humboldt Bronco bus crash. The respondents argued that an order for solicitor and client costs was not warranted in the circumstances. The judge found that solicitor and client costs were not warranted. The judge fixed the costs of the application at $7500. The judge also found that counsel for the respondents was not personally liable for paying the costs of the application. In Saskatchewan, solicitor and client costs are exclusively reserved for exceptional circumstances and are rarely awarded. In deciding what costs should be awarded the application judge considered certain principles set out in the decision. The court then addressed whether costs should be awarded against counsel personally. The court reviewed Rule 11-24 of The King’s Bench Rules and noted that Orders of this kind are warranted only if a court is satisfied that “a lawyer for a party has caused costs to be incurred improperly or without reasonable cause or has caused costs to be wasted through delay, neglect or some other fault. Like solicitor and client costs, situations where a lawyer is found personally liable to pay a costs award order against his or her client should be exceptional and rare. Thus, before a Judge should order a lawyer personally responsible for legal costs incurred by the opposing party, there must be evidence that their conduct amounted to a “serious dereliction of duty or behaviour”. The evidence must be clear and permit a judge to find “as a fact, that there had been highly improper conduct” on the part of the lawyer against whom such a costs order is sought. The judge therefore did not award costs against counsel personally. Wassermann v. Herold (Administrator Ad Litem), 2025 SKKB 40 (Sask. K.B.).
THE REGULATION OF PROFESSIONS IN CANADA
Release No. 2, March 2026
What’s New in This Release
This release features new and updated case law and commentary to Chapter 3 – The Canadian Charter of Rights and Freedoms, Chapter 4 – Jurisdiction of the Tribunal Over the Professional, Chapter 5 – The Right of Professional Organizations to Make Rules and Regulations, Chapter 7 – The Applicability of the Duty of Fairness, Chapter 9 – Bias, Chapter 11 – Evidentiary Issues.
Highlights
New section 4:7–Conduct Not Part of Practice of Profession – On occasion questions arise as to whether an investigated member’s activities are part of the regulated profession and subject to applicable standards of practice. In Al-Hallak v Alberta College of Pharmacy, 2025 ABCA 419, certain allegations of unprofessional conduct relating to a pharmacist providing cosmetic services fell outside the practice of pharmacy. The Court of Appeal overturned this aspect of the decision finding that it was an error to exclude from the definition of the practice of pharmacy procedures that were intended to enhance a person’s appearance.
New section 4:8–Statutory Immunity – The issue of statutory immunity provided to regulatory Colleges and officials is addressed in Chapter 3, S. 11:15. However, on occasion issues arise with respect to whether professionals have statutory immunity from the College complaint process . . . . In response to allegations that regulatory colleges were engaged in “regulatory scope creep” and were restricting freedom of expression by disciplining professionals for off-duty conduct, the Alberta Legislature passed Bill 13, Regulated Professions Neutrality Act, 2025. The Bill restricts the ability of regulatory colleges to impose sanctions for expressive conduct that occurs outside the practice of the regulated profession subject to enumerated exceptions. The Bill has been widely described as the “Jordan Peterson law” referring to the controversial discipline case concerning the Ontario psychologist.
Release No. 3, April 2026
What’s New in this Update
This release features new and updated case law and commentary to Chapter 13 – Professional Misconduct, Chapter 14 – Sentencing, Chapter 15 – Appeals and Judicial Review, Chapter 16 – Admission to the Professions and Chapter 18 – Hospital Privileges for Physicians.
Highlights
Chapter 13–Professional Misconduct–§ 13.2. Test for Conduct Deserving of Sanction – The British Columbia Court of Appeal has ruled that in cases where an uninvestigated member relies on a Charter right to defend allegations of unprofessional conduct, the test in the context of Law Society proceedings must be broadened to be:
The test is whether the facts as made out disclose a marked departure from that conduct the Law Society expects of its members, having properly balanced the relevant Charter value with the Law Society’s public mandate and objectives; if so, it is professional misconduct.
Vining v. Law Society of British Columbia, 2025 BCCA 337 at para. 5 quoting Law Society of British Columbia v. Harding, 2022 BCCA 229 at para. 140.
Chapter 16–Admission to the Professions–§ 16:1. Generally – In one case applicants sued for breach of contract when the Royal College of Physicians and Surgeons of Canada adjusted scores downward such that the applicants no longer passed the entrance examination. The claim was dismissed at the trial level but the Court of Appeal allowed the appeal and remitted the matter to a new trial. The Court of Appeal concluded that the reasons of the trial judge were insufficient to explain her conclusion that it was psychometrically sound to adjust the results of the examination. The Court also concluded that the trial judge’s reasons did not satisfactorily address the applicants’ claim for breach of contract.
Adewale v. Royal College of Physicians and Surgeons of Canada, 2025 ONCA 738.
REMEDIES IN TORT
Release No. 2, March 2026
What’s New in This Release
This release features updates to the case law and commentary in Chapter 22: Passing Off.
Highlights
Chapter 22–Passing Off–Nature of Cause of Action–‘Passing off’ is an economic or proprietary tort which generally arises between market actors. The basic thrust of the tort is to control the circumstances in which one actor can benefit by identifying its products or services with that of another and by harming that other actor by such a manoeuvre. Accordingly, it protects the goodwill earned or created by one market actor from its appropriation by another. As such, it draws upon a broader notion of property rights and extends protection to not only the products of services of another, but also to its marketing power and potential, as well as its market reputation.
Chapter 22–Passing Off–Misrepresentation–The second component of the tort of passing off is a misrepresentation that creates confusion in the public. This may be wilful and will also constitute deceit. However, it need not be so. Today, the doctrine of passing off encompasses innocent misrepresentations; this includes negligent or careless misrepresentations. Proof of the defendant’s intention to deceive is strong evidence of an intent to improperly affect the plaintiff’s trade. Also, where a defendant continues to use an allegedly deceptive description after the danger of using it has been drawn to their attention, an inference of fraud is raised.
Chapter 22–Passing Off–Injunctions–The availability of an interim or permanent injunction in respect of passing off is governed by the ordinary principles applicable to injunctive relief. However, on an application for an interim injunction where the granting of the injunction would most likely finally dispose of the action, the court is justified in considering the merits of the case. It can determine whether there is a prima facie case, not merely whether there is a substantial issue to be tried. If the applicant establishes a prima facie case, the questions of irreparable harm and balance of convenience must then be addressed.
Release No. 3, April 2026
What’s New in This Release
This release features updates to the case law and commentary in Chapters 2, 15, 16, 18, 19, 30, and 31.
Highlights
Chapter 15. Malicious Prosecution – Plaintiff police officer brings claim against police/prosecution in respect of a host of charges based on intercepted communications between plaintiff and 3rd parties; wiretap based on police mischaracterizing informants; as a result, charges ultimately withdrawn but before wiretap and communications subject to Charter challenge at plaintiff’s criminal trial; trial judge not wrong to rely on the intercepted communication to understand basis of prosecution against plaintiff; intercepted communications stood as strong challenge to plaintiff’s claim of factual innocence in civil action and as basis for establishing reasonable and probably grounds; decision upheld on appeal: McCormack v. Evans, 2025 ONCA 767.
Chapter 16. Negligence (General) – Appeal of dismissal of claim that alleged a duty of care owed by Attorney General and others in respect of their failure to properly administer regulatory oversight when issuing firearm licences, third party had shot and killed plaintiff’s family member; on appeal, motion judge erred in concluding no duty owed by defendants; for the purposes of establishing proximity, the court can consider a combination of interactions and statutory duties that may give rise to (could be recognized) a private law duty of care for public entity; this requires there being something about the individual claiming a private duty (in relation to the government action) that is more specific or tailored than all members of the public; current state of claim required additional facts that spoke to the whether government knew third party a risk to individuals like plaintiff; leave to amend should be granted: Sienna v. Duckett, 2025 ONCA 867.
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