Looseleaf Updates – May

by Kayleigh Hykawy | May 28, 2025 | Commentary, Legal Research

Remedies in Tort – Lewis N. Klar et al.
Release #3

What’s New?

Elements of Cause of Action, §4:8 Subject-matter of the Action – In Zwaan v. LaFramboise, 2024 ONSC 23, the plaintiff received insurer’s cheque in respect of fire that destroyed plaintiff’s barn. The defendant’s lawyer advised the plaintiff that he would deposit cheque into firm trust account until it could be properly paid out given the presence of a mortgage transfer; however defendant lawyer deposited cheque into personal account and claimed (i) amounts applied against mortgage amounts (not proven) (ii) amounts were applied against outstanding legal fees owed by plaintiff. The defendant lawyer had unlawfully converted funds to his own use). The Trial Judge’s decision was upheld on appeal.

Defences, §6:53 Comment on a Matter of Public Interest – In Neufeld v. Bondar, 2025 BCCA 1, the defendant was found liable in defamation for having characterized the plaintiff as a ‘strip-tease artist’. The plaintiff was a candidate for school trustee and the parties had been involved in a political debate over content in school curriculum including elements of sexual orientation and gender identity. The defendant claimed trial judge ignored the political context of his statement. On appeal, the trial judge was right not to consider political context of exchange between parties when determining whether the comment was defamatory.

Duty of Care, §16:25 Proximity – In Rivard v. Ontario, 2025 ONCA 100, the plaintiff was brutally beaten by police during his arrest. His claim of negligence as against the Chief of Police was allowed to proceed; there was the allegation that the Chief owed the plaintiff a duty of care to ensure that the police officers conducting the arrest were properly trained and supervised and the Chief breached this duty by failing to train and supervise the individual officers. It was reasonably foreseeable that the failure to do so would result in the plaintiff’s extensive injuries.

Remedies in Tort – Lewis N. Klar et al.
Release #4

What’s New?

Joint Tenancy – Gratuitous Gift – Severance – Right of Survivorship – There is conflicting authority on the issue of whether a joint tenancy, once gifted, can be severed, thereby eliminating the right of survivorship. Appellate decisions in Manitoba and B.C. appeared to stand for this proposition, see Simcoff V. Simcoff, 2009 MBCA 80, 2009 CarswellMan 357 (Man. CA.), and Bergen v. Bergen, 2013 BCCA 492, 2013 CarswellBC 3473 (B.C. CA.). While Thorsteinson Estate v. Olson, 2016 SKCA 134, 404 D.L.R. (4th) 453 (Sask. C.A.), a decision of the Saskatchewan Court of Appeal, and Pohl v. Midtdal, 2018
ABCA 403, 78 Alta. L.R. (6th) 78 (Alta. C.A.), from the Alberta Court of Appeal, are conflicting authorities. This release contains a discussion of two recent decisions on this subject. Jackson v. Rosenberg, 2024 ONCA 875, 2024 CarswellOnt 18865 (Ont. CA.), additional reasons 2025 ONCA 48, 2025 CarswellOnt 600 (Ont. C.A.), is a decision in which the Ontario Court of Appeal joined the courts affirming this proposition. It found that the applicant had not intended to convey legal and
beneficial title and the applicant had right to sever the joint tenancy after the transfer even though to do so would end the right of survivorship. The court stated that each joint tenant has a unilateral right to sever, whether the tenancy was created for consideration or gratuitously. The right of survivorship required severance to not occur. The other case is Pearman v. Kuramoto, 2024 BCSC
1953, 2024 CarswellBC 3158 (B.C. S.C.). In refusing an application for dismissal brought under Rule 9-6(5) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, the court stated that the purpose of this rule was not to decide novel or difficult legal issues. Citing D. (L.) (Guardian ad litem of) v. Provincial
Health Services Authority, 2011 BCSC 628, 2011 CarswellBC 1172 (B.C. S.C. [In Chambers)), para. 20, reversed 2012 BCCA 491, 2012 CarswellBC 4133 (B.C. C.A.), the court noted that Justice Sewell had suggested that a court should decide an issue of law under Rule 9-6(5) only if satisfied that the issue of law is “well settled by authoritative jurisprudence” and the court found in, its view, “the law in British Columbia as to whether the gift of a right of survivorship in a joint interest in land precludes subsequent severance of the joint tenancy is not well settled by authoritative jurisprudence”, para. 36.

Competency of Executors – Removal – Conflict of Interest – In this case the court observed that not all perceived or actual conflicts of interest will give rise to the removal of an executor. The first question to be considered is whether there is an actual or perceived conflict of interest that rises to the level of disqualification by, inter alia, demonstrating a want of reasonable fidelity or an inability to act impartially. In making such a determination, the court must consider all of the circumstances, including the following (non-exhaustive) considerations:

1. has the executor been reasonably transparent about the existence of their claim?
2. whether the claim has been quantified by the executor, and the size of their asserted claim if it has been quantified?
3. if not quantified, is there a reasonable explanation for the executor not doing so?
4. the passage of time, and the existence of any delay?
5. whether the other beneficiaries oppose the executor continuing despite the executor’s claim?
6. whether the executor’s pre-death loan claim creates a legitimate and reasonably held distrust on the part of a beneficiary in the executor’s impartiality?
7. whether the asserted pre-death loan endangers the administration of the estate into the future? and
8. whether the executor’s conduct with respect to the asserted pre-death loan hampers the efficient administration of the estate?

Bringeland Estate (Re), 2024 BCSC 1546, 2024 CarswellBC 2496 (B.C. S.C.), additional reasons 2025 BCSC 63, 2025 CarswellBC 146 (B.C. S.C.)

The Law of Bail in Canada – Gary J. Trotter
Release #1

What’s New?

Extradition Bail – Bail Prior to Committal for Extradition – The Duration of Pre-Committal Bail Orders – The duration of bail orders in domestic proceedings is addressed in Chapter 6 (Release Orders and Conditions), § 6:2. This involves the application of s. 523 of the Criminal Code, which presents certain challenges. The situation is more straightforward with bail orders under the Extradition Act and reflects the nature of the extradition process in general. Unless set aside or
varied on review (see § 14:10, below), any release order is terminated upon committal for extradition. If the person sought is not committed for extradition, they are entitled to be discharged. This is provided for in the wording of s. 29(1) and (3) of the Extradition Act. If the person
sought is committed into custody for extradition, s. 30 provides that “the order of committal constitutes the authority to keep the person in custody, subject to an order of judicial interim release”, and “the order of committal remains in force until the person is surrendered or discharged or until a new hearing is ordered under paragraph 54(a)”. Upon committal s. 20(b).

Police Bail – The Accused In Court: Duty to Take the Accused Person Before a Justice – The General Duty – Some have resorted to remedies for failures to comply with s. 503 outside of the criminal police system. In Cirillo v. Ontario, 2019 ONSC 3066, affd 2021 ONCA 353, an attempt was made to certify a class proceeding based on claims of negligence, breach of fiduciary duty, and breach of Charter rights in respect of persons who were arrested and detained for a period of 24 hours or more (as well as related issues, such as cases not being reached, inadequate interpretive services, etc.) from January 1, 2000. The motion judge refused certification for a number of reasons, some having to do with Crown immunity from certain claims, such as negligence. Further, the complaint related to core policy government decisions (involving the allocation of resources) from which the Crown is also immune from liability. More fundamentally, he found that the need to share a common experience of having a specific right violated had to be addressed on an individual basis. The Court of Appeal agreed that this was not a proper case for certification. The Alberta Courts have taken a different path, permitting the certification of a similar class proceedings: Reilly v. Alberta, 2022 ABKB 612, affd 2024 ABCA 270. Beyond the question of whether any class member receives compensation, it will be interesting to see whether this litigation approach achieves systemic change.

Judicial Review of Administrative Action in Canada – Donald J.M. Brown et al.
Release #1

What’s New?

Note of Developments in Administrative Law in 2025 – The Supreme Court remained busy in the later portions of 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 of
decisions.

Jurisdictional Boundaries between Federal Court and Tax Court of Canada – In Dow Chemical Canada ULC v. Canada, 2024 SCC 23 and Iris Technologies Inc. v. Canada, 2024 SCC 24 the Supreme Court clarified the jurisdictional boundaries between the Tax Court of Canada and the Federal Court. The Court’s decisions in both cases rely on distinction between a tax assessment and the Minister of Revenue’s use of discretion. In short, the Court found that the Tax Court of Canada has exclusive jurisdiction to determine the correctness of a tax assessment and the Federal Court has exclusive jurisdiction to review the Minister’s discretionary decisions, including the decision-making process itself (unless the Legislature has provided otherwise). The Court also confirmed that the principles for standard of review laid out in Vavilov apply to tax disputes.

Damages for breach of Charter Rights – In Canada (Attorney General) v. Power, 2024 SCC 26, the Court
wrestled with the issues of when to award damages for Charter breaches. The Majority confirmed that the test in Vancouver (City) v. Ward, 2010 SCC 27 is still good law, There is no absolute immunity for legislation later found to be unconstitutional. If the challenged legislation is clearly unconstitutional, or was in bad faith or an an abuse of power, damages against the Crown may be appropriate.

Finally, the Ontario Court of Appeal issued its decision in Khorsand v. Toronto Police Services Board, 2024 ONCA 597 addressed the scope of judicial review. In that decision the Court of Appeal found that a pre-screening background check by the Toronto Police Services Board, at the behest of the Toronto Community Housing Corporation, was a component of the employment application process and was not a public decision. In reaching this decision, the Court of Appeal noted that it viewed the Air Canada factors as playing a “helpful role in focusing the court’s attention and reasoning process”.

The Court based its conclusion that the decision was not sufficiently public to render it subject to review on three principal reasons. First, as noted above, the Court of Appeal concluded that the pre-screening test was “part and parcel of “TCHC’s hiring process The Court of Appeal noted that the pre-screening decision was a “discretionary employment-related decision which draws it within the private sphere.” Second, the Court of Appeal noted that the “decision’s impact on a broad segment of the public”, and in particular the existence of a possible human rights violation, did not make it a public decision. Third, the Court of Appeal concluded that public law remedies were not appropriate in the circumstances. As such the decision was not amenable to judicial review.

The Regulation of Professions in Canada – James T. Casey
Release #3

What’s New?

Chapter 14 – Sentencing – The Ontario Divisional Court upheld the sanction of revocation imposed for spreading serious Covid-19 misinformation: Trozzi v. College of Physicians and Surgeons of Ontario,
2024 ONSC 6096.

Chapter 15 – Appeals and Judicial Review – The Supreme Court of Canada considered whether the test in Katz Group for assessing the validity of subordinate legislation continues to apply in the post-Vavilov era. The Court held that the Katz Group test of whether a regulatory instrument is irrelevant, extraneous, or completely unrelated to the statutory purpose no longer applies. Instead, the conceptual framework in Vavilov is be used to assess the vires of subordinate legislation: Auer V. Auer, 2024 5CC 64; TransAlta Generation Partnership v. Alberta, 2024 5CC 37.

Chapter 17 – Admission to the Profession – A Court declined to interfere with a ruling that an individual had sufficient good character to be registered as a lawyer despite having sexually abused three young children 10 years earlier: Law Society of Ontario v. A.A., 2024 ONSC 5971.

Widdifield Executors and Trustees – Carmen S. Thériault
Release #4

What’s New?

Chapter 15 – Malicious Prosecution – II. Elements of Cause of Action, 15:9 Lack of Reasonable and Probable Cause – In Lover-Peace v. Moosavi, 2025 BCSC 515, plaintiff and defendant doctor met over virtual medical appointment and following this one appointment, the plaintiff engaged in an escalating campaign of stalking the defendant doctor both at her place of work and online through various Youtube postings. Police interviewed plaintiff and he refused to make a statement and was arrested; charges stayed after plaintiff enters a peace bond. The plaintiff initiated a malicious prosecution claim against the defendant. On the summary judgment motion, the judge concluded that the defendant did not lack reasonable and probable grounds for making a complaint, the malicious prosecution action was dismissed.

Chapter 18 – Professional Negligence – II. Lawyers, C. Elements of Cause of Action, 2. Standard of Care, ii. Specific Kinds of Carelessness, 18:14 Mishandling Non-Contentious Business, Additional Authorities – In Marshall Zaitlen v. Sean Omar Henry and as Estate Trustee for the Estate of Sandy Robinson, 2025 CarswellOnt 2606, the plaintiffs were clients of defendant law firm and the plaintiffs were encouraged to invest in real estate development project and deposit investment funds in law firm’s trust fund. The monies were removed by defendant lawyer’s mother and others who also worked in the firm. The defendant lawyer claimed no knowledge of the misappropriation however motions judge held that the lawyer’s abdication of all control and responsibility for his practice reflected conduct that was so below an acceptable standard expected of a competent lawyer that no expert evidence was required to confirm if reasonable standard of care in practice met.

Chapter 32 – Parties – III. Children, B. Capacity to Sue, Additional Authorities, The Child as Plaintiff – In Van Every (Litigation guardian of) v. Findlay, 2025 ONSC 757, the plaintiff as a young child was severely injured by tractor and left with brain injury. They retained counsel through litigation guardian to claim for injuries but changed counsel. They secured settlement and subsequently, plaintiff commenced professional negligence claim against defendant, first counsel. The defendant brought a motion to remove plaintiff’s counsel as they cannot be both advocate and witness (notwithstanding that plaintiff switched lawyers within the same firm). The defendant’s motion was
dismissed.