Looseleaf Updates – May 27, 2026

by | May 27, 2026 | Commentary, New Books | 0 comments

The following looseleaf texts have been updated:

MANITOBA KING’S BENCH RULES ANNOTATED

Release No. 2, April 2026

What’s New in this Update

In this release, the author has updated Chapter 3 (Annotations).

Highlights

Disposition Without Trial–Default Proceedings–Default Proceedings–Setting Aside–Generally – The Court has a broad discretion in the determination of whether a default judgment should be set aside. There is a distinction between setting aside the noting of default to allow a defence to be entered and setting aside default judgment. The test for setting aside default judgment in more onerous in nature. While the overriding consideration is whether setting aside the judgment would be just, the following is a non-exhaustive list of factors the court may consider:

(a) whether the defendant had an ongoing intention to defend;
(b) whether the defendant adequately explained why there was a delay in filing the defence;
(c) whether the delay in filing a defence was willful;
(d) whether the motion to set aside the noting of default was brought with dispatch; and
(e) whether the delay in filing a defence caused prejudice to the plaintiff.

Norfield Enterprises Ltd. v. Comtech (Communication Technologies) Ltd., 2025 MBKB 136, per McKelvey, J.

Disposition Without Trial–Dismissal for Delay – In its Reasons for Decision, the Court sets out the rationale behind Rule 24.02 and a brief outline of the history leading to the status of the law, including how Rules 24.01 and 24.02 relate to one another and how they are to be applied. In this case, the court found that the conduct of the defendant, and any responsibility for the delay should be considered. While a defendant is entitled to take a “wait and see” approach to the litigation and thereby put the onus on moving the matter forward on the plaintiff, that approach is not without its parameters. If the defendant fails to discharge its obligations or communicate with the plaintiff in a timely way, it may be seen to be contributing to the overall delay. Parkinson v. Winnipeg Regional Health Authority, 2025 MBCA 82, per Mainella, J.A. (for the Court).

ORKIN ON THE LAW OF COSTS

Release No. 2, April 2026

What’s New in this Update

This release includes updates to Chapter 3 (Solicitor-and-Client Costs), Chapter 4 (Costs of Motions), Chapter 5 (Security for Costs), Chapter 6 (Assessment of Costs), Chapter 8 (Appeals), Chapter 11 (Costs in the Federal Court) and Chapter 14 (Costs in the Family Court and the Small Claims Court).

Highlights

Security for Costs–Appeals–General – The moving party in this appeal to the Ontario Court of Appeal was seeking an order for security for costs against the appellant in the amount of $100,000 relating to the appellant’s appeal of a wrongful dismissal finding against it that resulted in a damage award of $175,000. The moving party pursued two bases for the security for costs motion. (1) pursuant to rule 61.06(1)(b) of the Rules of Civil Procedure (Ont.) and rule 56.01(1)(d) on the grounds that there was “good reason to believe” that the appellant had insufficient assets in Ontario to pay the costs of the appeal; and (2) pursuant to rule 61.06(1)(c) there was “other good reason” to order security for costs. The appeal court judge dismissed the motion. The judge stated the general legal principles. “There is a two-step process required before a discretionary order is made to order security for costs against an appellant pursuant to rule 61.06(1). The first question is whether the requirements of rule 61.06(1)(a), (b), or (c) are met. If so, the second question is whether it would be just to order security, considering the circumstances and the interests of justice.” [Paragraph 8]. [Citations omitted]. The relevant factors in deciding whether it would be just to order security are not closed. In the end the court did not find good cause for making a security for costs order. Stride v. Syra Group Holdings, 2025 A.C.W.S. 1762 (Ont. C.A.)

Assessment of Costs–The Assessment Officer–Costs of Assessment–Solicitor-and-client assessment – This was a motion in the Ontario Superior Court of Justice pursuant to rule 54.09(2) of the Rules of Civil Procedure (Ont.) addressing an assessment under the Solicitors Act (Ont.). The assessment was conducted by an assessment officer. The respondent law firm opposed confirmation of the costs awarded arising out of the assessment. The client was awarded $90,000 in costs for her own time by the assessment officer. The client had retained the law firm regarding a property dispute. The action was partially successful. The assessment took place over 42 days in 2021. The reasons of the assessment officer were released in 2024. The law firm’s account was reduced by more than half. The client conducted the assessment on her own. The law firm opposed the award of $90,000 in costs on the very narrow ground that there was no evidence upon which the assessment officer could conclude that the client had forgone remunerative employment such that she should receive an award of costs for her time. The law firm did not challenge the time the client devoted to the assessment. In the end, the motion judge granted the appeal and awarded the client $40,000 in costs for her own efforts in the assessment. This motion was not a hearing de novo. The question was whether the assessment officer erred as a matter of principle. In the end, rather than send the matter back to the assessment officer the judge concluded that $40,000 was a reasonable fee particularly having regard to the fact that there was neither evidence of the extent of the forgone work nor an assessment of the hours worked by the client that would be work otherwise performed by a lawyer. Rosenberg v. MacDonald, 2025 ONSC 4455 (Ont. S.C.J.).

The following looseleaf subscriptions have resumed. The most recent update is highlighted below:

CHILD PROTECTION LAW IN CANADA, 2ND EDITION

Release No. 4, May 2026

What’s New in this Update

This release features updates to Chapters 2 (Jurisdiction), 3 (Commencing the Protection Application), 4 (Motions), 5 (Protection Application – Threshold Finding), 6 (Protection Application – Dispositions) and 11 (Appeals).

Highlights

YOUTH CRIMINAL JUSTICE ACT MANUAL

Release No. 1, May 2026

What’s New in this Update

This release features updates to the commentary and case law in Chapters 5 (Judicial Measures), 6 (Sentencing), and 12 (Sentencing Under the YCJA).

Highlights

  • R. v. T.M., 2025 MBPC 78, 2025 CarswellMan 410 (Man. Prov. Ct.) – The young person was sentenced to a six-month deferred custody and supervision order followed by eighteen months’ probation for possessing a loaded, restricted weapon, contrary to Criminal Code s. 95(1). The sentencing judge determined that firearms possession virtually always met the criteria for consideration of custody as an exceptional case pursuant to YCJA s. 39(1)(d). In the instant case, the circumstances of the offence, which included the young person’s use of the gun in a gang fight where another person was murdered, constituted the clearest of cases and necessitated a custodial sentence.
  • R. v. T.M., 2025 ONCA 862, 2025 CarswellOnt 20482 (Ont. C.A.) – The limitations of the availability of a DCSO sentence to six months in length and non-serious violent offences do not violate s. 7 or s. 15(1) of the Charter. Accordingly, the illegal sentence of 24-month DCSO imposed by the sentencing judge was varied to a fit disposition of 18 months’ probation with conditions and a community service order of 100 hours. In upholding the constitutionality of YCJA s. 42(5) and s. 42(2)(p), the Court of Appeal conducted a contextualized analysis of the YCJA’s policy foundations and objectives, including recognizing young persons’ reduced moral culpability, holding them accountable for offending conduct and reducing the historical overincarceration of youth. The Court drew heavily on the Supreme Court of Canada’s analysis of YCJA principles in R. v. I.M., 2025 SCC 23. The Court of Appeal emphasized that it is an error in principle to treat proportionality or retribution as the dominant or isolated focus of youth sentencing. Rather, as clarified in R. v. I.M., youth accountability requires a holistic approach. The Court of Appeal also cited the robust conditions of youth probation as an important complement DCSOs and the YCJA sentencing regime as a whole in explaining why a DCSO does not and should not be interpreted as a parallel to an adult conditional sentence. Youth probation, in contrast with adult probation, can include conditions that are not restricted to rehabilitative objectives, thereby supplying accountability via proportionate sentences and meaningful consequences.
  • R. v. X.C., 2025 ONCJ 366, 2025 CarswellOnt 10954 (Ont. C.J.) – A young person is considered to be “at trial” for the purpose of appointment of counsel pursuant to YCJA s. 25(4) if they have rejected or been rejected for extrajudicial sanctions and the youth justice court is satisfied that they wish to contest the charges and will not be accepting a resolution with which duty counsel can assist them. Youth justice courts should develop procedures that minimize the need for young persons to spend inordinate and unnecessary amounts of time attending court. One example of an alternative to in court application hearings would be a protocol for youth court judges to consider such applications in chambers in writing. This kind of alternative process is more responsive to the objectives of the YCJA and does not waste judicial resources. (Editor’s Note: This decision rejects the reasoning in prior cases requiring that a young person actually be arraigned before a s. 25(4) application can be entertained.)

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