This release features substantial updates to the case law in Chapter 2: Who Can Claim Relief, Chapter 5: Conduct to Which the Oppression Remedy Applies, Chapter 6: Remedies: General Principles and Practical Applications, Chapter 7: The Oppression Remedy and Other Statutory Remedies and Chapter 8: Litigating an Oppression Claim.
Highlights
Chapter 2: Who Can Claim Relief-§ 2:6. Potential Shareholders- In Shifrin v. LDF Frozen Foods et al., the applicant sought a declaration that he was the beneficial owner of 15% of the outstanding sares of the corporate respondent, LDF Frozen Foods and that the individual respondents held those shares in trust for him. He also sought a declaration that he had standing as a “complainant” under the OBCA. The applicant claimed that there was an agreement that he would invest $100,000 in LDF and work at LDF and, as consideration, receive 15% of the shares of LDF. There was no dispute that the applicant paid the $100,000 and worked at LDF, but there was a dispute as to whether there was an enforceable agreement among the parties with respect to the 15% interest and whether the applicant’s $100,000 investment had been repaid. Justice Dietrich concluded that there was an enforceable agreement among the parties to provide the applicant with 15% of the shares of LDF and that the applicant complied with the terms of the agreement by investing the $100,000, which had not been repaid. Having concluded that the applicant was indeed the beneficial owner of 15% of the shares, Justice Dietrich then found that the applicant was a proper complainant under the oppression remedy and entitled to seek relief in the form of the production of financial records and other relevant documents, stating that “[t]he relief sought by Mr. Shifrin is also consisted with other decisions of the court and others across the country which have found that where a respondent has refused to issue shares and an applicant is contractually entitled to receive those shares a claim under the Oppression Remedy is appropriate”. (Shifrin v. LDF Frozen Foods et al., 2025 CarswellOnt 5372, 2025 ONSC 2095).
Chapter 2: Who Can Claim Relief-§ 2:7. Warrantholders and Other Beneficial Owners-With respect to the distinction between legal and beneficial ownership of shares of a corporation, in Dhaliwal v. Cheema, Kimmel J. was required to determine whether the complainants were beneficial owners of the shares of various transportation companies, notwithstanding that the corporate records reflected that the respondent was the sole shareholder. Justice Kimmel noted that “[c]orporate records play an important role in governance, are subject to a statutory obligation of accuracy, and are presumed to be accurate, absent compelling evidence to the contrary”, but that “[a]n oral agreement and understanding regarding the beneficial share ownership is the type of compelling evidence that can rebut the presumption of share ownership.” Justice Kimmel concluded that the presumption had been rebutted based on her assessment of the complainants’ capital and in-kind contributions at the formation of the business and the respondents’ conduct over the past two decades. Having concluded that the complainants were beneficial owners, she found that their reasonable expectation was to be treated as owners and to continue to participate in management. The failure of the respondent to recognize their status as owners and to exclude them from management was oppressive and unfairly prejudicial their interests. (Dhaliwal v. Cheema, 2025 Carswell Ont 707, 2025 ONSC 382).
This release delivers a comprehensive overhaul of Chapter 8 – rewritten, reorganized, and retitled “Conflicts of Interest by Practice Area”. The revised chapter includes updated commentary, case law and academic literature by practice area.
Highlights:
Conflicts of interest can arise in any area of law but tend to predominate when lawyers represent more than one client. For example, there are some specialized areas of practice where conflicts of interest have become part of the institutional setting. These specialized areas of practice include bankruptcy and insolvency law, family law, insurance, real estate and wills and estates law, where conflicts of interest tend to arise more frequently than other practice areas. This is so because of the duties inherent in the relationships between and among the various parties. But conflicts can arise in any area of practice and there are many variables which give rise to what can be described as “systemic” conflict of interest issues. The first is the nature of the transaction that occurs between the parties. In real estate matters, for example, the parties may use an intermediary, a real estate agent, who has an interest in earning a commission by selling the property, and a bank that will provide a mortgage to the buyer. In some situations, it may be appropriate for one lawyer to act for multiple parties, but since the parties to the transaction may have different motives, conflicts can arise. A conflict of interest can exist even though the interests of the parties initially coincide. There is a myth, largely due to the use of “conflict” in “conflict of interest” that for a conflict of interest to exist there must be an adverse interest at stake or some form of contentious proceedings. The drafting of a separation agreement in a family matter or the preparation of a partnership agreement, particularly if there are several parties involved, can in fact give rise to a conflict of interest. The parties may share the same goals and objectives, but they may in fact disagree, or have divergent interests, in achieving these goals. The basic principles of adequate disclosure and consent remain the same as they do for matters that are contentious. The rules of professional conduct recognize that, in addition to the existence of a real or actual conflict of interest, there may be the appearance of a conflict of interest or the potential for a conflict of interest to occur.
This release contains amendments and updates to the commentary in Chapter 2 (Assets); Chapter 3 (Claims Against the Estate for Debts); Chapter 5 (Bequests and Beneficiaries); Chapter 15 (Resignation, Removal and Appointment of Trustees); and Chapter 17 (Dependants’ Relief Claims and Spousal Property on Death).
Highlights of This Release, Include:
Dependants’ Relief – Moral Obligation to Create Henson Trust – The court was asked to consider whether the testator breached her moral obligation by not putting an adult child’s inheritance into a Henson trust. The testator had three adult children. The testator’s will provided for modest bequests to her two grandchildren, with the remainder of the estate to be divided between each of her three children. The estate was a significant size, each child was to receive more than $ 1.8 million. The plaintiff, one of the testator’s children, was receiving government disability benefits and resided in social housing. It had been determined that the plaintiff was unable to work, and she received disability assistance. Eligibility for housing was based on provincial housing guidelines. She commenced a summary application seeking to vary her mother’s will to add terms that would place her share of the estate in a fully discretionary trust (Henson Trust). The intended impact of the discretionary trust was to ensure that the plaintiff would not lose her entitlement to disability benefits, and therefore her housing. The application to vary the will was dismissed with leave to re-apply. The court found that the only relevant determination was whether the testator, by leaving the plaintiff a direct distribution, failed to make adequate provision for her because she had failed to create the trust. The court stated that the factors in the application giving rise to concern included the size of the plaintiff’s inheritance and that, although disability benefits provided for subsistence level standard of living, evidence regarding the plaintiff’s expenses beyond what was covered through her disability benefits was sparse. The evidence fell short of allowing the court to conclude that the plaintiff would lose her housing if she received her inheritance by way of direct distribution. Overall, the evidence of the plaintiff’s current arrangements was of limited value in determining whether the testator failed to satisfy her moral obligations to provide for the plaintiff’s maintenance. In these circumstances, the court held that it was not possible for it to find that the testator failed to make adequate provision for the plaintiff’s proper maintenance and support. The court went on to note that if the plaintiff’s share of the estate provided her with sufficient funds to meet all of her needs and many of her wants, without resort to publicly funded disability benefits, the provisions of the will may be entirely appropriate: Damgaard v. Damgaard Estate, 2025 BCSC 208, 2025CarswellBC 334 (B.C. S.C.).
Competency of Executor’s – Animosity between Co-Executors – A coexecutor brought an application to “pass over” her brother who had been named in her father’s will as her co-executor of his estate. The grounds for her application was the personal animosity between herself and her brother. She argued that because of this they could not work together to administer the estate. Her brother disagreed and maintained that he was ready and willing to put his personal feelings aside and administer the estate according to his father’s wishes. He stated that he could work with his sister and act impartially. The court dismissed the application, finding it premature to say that the animosity between the parties would necessarily jeopardize the proper and efficient administration of the estate or the welfare of the beneficiaries. At the point at which the application was brought, the parties had not attempted to work together: Parkinson Estate (Re), 2025 BCSC 152, 2025 CarswellBC 212 (B.C.S.C.).
Division of Property – Determination of Ownership of Property – Equitable Presumption of Tenancy in Common – Applicability to Col-operative Housing – A husband and wife owned one share in a corporation and 200 common shares of W Co-operative Housing Inc. The corporation owned title to W, which was a housing co-operative. Title to the co-operative housing units at W were held by way of a share in the corporation, rather than holding title directly. The share certificate set out the registered owners as the husband and wife but there was no indication whether the share was owned as tenants in common or as joint tenants. The wife died in 2021, and the husband died in 2022, but they had lived apart for decades. The wife’s will left the husband her interest in W. The husband’s estate brought a motion for a declaration that it was the sole beneficial and legal owner. The motion was granted. The court found that the husband and wife held their share in the corporation, as well as the common shares in W, jointly. The wife’s share passed to the husband by way of survivorship upon her death. Therefore, the husband’s estate was the sole beneficial and legal owner of the shares. The equitable presumption of tenancy in common did not apply. The definition of “land” in the Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34 (CLPA), could not be expanded to apply to shares in the co-operative housing unit. Therefore, the common law presumption of joint tenancy applied, the share was jointly owned, and presumptions in s. 14 of the Family Law Act, R.S.O. 1990, c. F.3, applied. The court also found that there was sufficient evidence to rebut the presumption of resulting trust: there was no evidence of any intention to not take the shares as joint tenants, nor that the parties had attempted to sever their interests; the documents did not indicate specific interests; there was no evidence as to the parties’ contributions to the purchase price; the parties were not divorced; and neither equitable presumptions nor the CLPA applied: Gruber v. Glickman Estate et al., 2025 ONSC 258, 2025 CarswellOnt 619 (Ont. S.C.J.).
“The purpose of this Practice Direction is to further the goal of providing timely and meaningful judicial intervention and assistance to families engaged in family disputes. It is to encourage the expeditious scheduling of a triage conference in family proceedings as is required by the Family Case Flow Scheduling Model.
Parties involved in a family proceeding are entitled to participate in a triage conference which provides the opportunity to resolve contentious matters in a timely manner. Timely access to early and meaningful judicial intervention is a cornerstone of the Family Case Flow Scheduling Model. To the extent that timely access is now being compromised by an increasing number of adjournments related to the Triage Screening List, this issue must be addressed.
Triage Screening List Adjournments
King’s Bench Rule (KBR) 70.24(16) requires a party seeking a triage conference to file and serve a Request for Triage Conference (Form 70D.2), a Certificate of Prerequisite Completion (Form 70D.3) and a triage brief on the other party at least fourteen (14) days before the triage screening date.
KBR 70.24(17) states that the responding party must file and serve their Certificate of Prerequisite Completion and triage brief no later than four (4) days before the triage screening date. Where a responding party fails to file and serve their Certificate of Prerequisite Completion and triage brief four days before the triage screening date as is required, the family proceeding is adjourned on the Triage Screening List. There have been cases where a family proceeding has been adjourned repeatedly as a result of the failure of a responding party to file and serve the required documents.
The failure of a responding party to file and serve their triage documents may be the result of the parties wishing to focus on settlement discussions. Regrettably, the failure may also be due to a responding party attempting to delay the scheduling of a triage conference.
Counsel are reminded that in the event of unnecessary delay in setting the date of a triage conference, a moving party should seek an order from an associate judge forthwith. An associate judge will grant the appropriate order and cost award if requested, to ensure that a moving party is able to proceed to triage on a timely basis
Effective February 3, 2026, where a proceeding appears on the Triage Screening List a third time, the required triage documents of the moving and the responding parties must be filed, failing which it will be struck off the List on a without prejudice basis. Only where the Associate Chief Justice has granted an adjournment, which will be granted only in exceptional circumstances, will the proceeding not be struck off the list.
A proceeding that has been struck off may be brought back on the Triage Screening List by filing a new Request for Triage Conference (Form 70D.2) and a requisition with payment of the filing fee.
Scheduling A Triage Conference
The Triage Conference Co-ordinator advises counsel and/or the self-represented party(ies) by email when all applicable prerequisites in a family proceeding have been satisfied. The email sets out the available hearing dates for a triage conference and requests that counsel and/or the self-represented party(ies) confirm their availability by return email no later than 11:00 a.m. on the Tuesday Triage Screening List.
Ms. Angie Tkachuk, Triage Conference Co-ordinator, presides over the Triage Screening List every Tuesday from 9:00 a.m. to 11:00 a.m. She may be contacted by email or by teleconference.
In the event that neither counsel nor the self-represented party(ies) respond to the email from the Triage Conference Co-ordinator, the proceeding will be struck off the Triage Screening List on a without prejudice basis.
The proceeding may be brought back on the Triage Screening List by filing a new Request for Triage Conference (Form 70D.2) and a requisition with payment of the requisite filing fee.
Coming into effect
This Practice Direction comes into effect immediately.”
This release includes updates to Chapter 3 (Solicitor-and-Client Costs), Chapter 4 (Costs of Motions), Chapter 5 (Security for Costs), Chapter 8 (Appeals), Chapter 11 (Costs in the Federal Court), Chapter 14 (Costs in the Family Court and the Small Claims Court) and Chapter 15 (Costs in Construction Actions).
Highlights
Appeals—Appeals from Orders as to Costs—Exceptions—This decision was the second of two motions dealing with the defendant. RB, seeking leave to have the Court of King’s Bench of Manitoba reconsider a decision on costs released May 25, 2023. This litigation began in 2016 pursuant to the oppression remedies in the Corporations Act (Man.). Numerous motions were filed during the litigation dealing with a multitude of issues. The trial proceeded during two separate timeframes and lasted approximately 17 days. The trial judge then set aside two days to hear submissions on costs. The judge made an award of costs on a party-party basis. The judge did not award solicitor and client costs respecting all steps in the proceedings. RB filed a notice of motion seeking, among other things, an order granting a reconsideration of the cost decision on the merits of the case. The judge had to decide if the court should grant leave to re-open the issue of costs and reconsider the costs decision and whether the court grant a stay of the costs decision pending release of the decision from the Court of Appeal. After reviewing the caselaw presented by the parties, and applying those principles to the facts and circumstances to the case, the judge was not satisfied that RB had met the criteria to re-open the issue of costs and to reconsider the cost decision. As the judge noted, this was not a case where new evidence became available subsequent to the costs hearing and that there was a reasonable explanation for the evidence not being filed prior to the hearing. This was also not a case where there was a serious risk of a miscarriage of justice unless a rehearing was granted. Judge concluded that RB failed to meet the criteria required to reopen the cost decision. Campbell et al. v. Brar et al., 2024 A.C.W.S. 5119, 2024 MBKB 149 (Man. K.B.).
Costs in Construction Actions—General—Overview—In this case in the Superior Court of Justice for Ontario, the Associate Justice discharged the claim for lien of the plaintiff pursuant to the old Construction Act (Ont.), section 47 and dismissed the action as the court found that the claim for lien was frivolous, vexatious, and an abuse of process and that the lien claimant had not complied with a previous removal order. The Associate Justice also ordered that the related certificate of action be vacated from title. Costs were awarded to the defendant BP in the amount of $85,000 for the motion and the action and to the defendant JDI in the amount of $45,000 for the motion and the action. After reviewing the chronological history of the matter regarding the registration of the lien and the commencement of the action, the court then addressed the test for liability for costs under the old Construction Act and whether FR was liable for the costs owing by the plaintiffs under that subsection. As noted, the defendants brought their motions pursuant to the old Construction Act section 86(1)(b)(i). The court went on to state, “Given this gatekeeping function, the argument was whether the costs sanction of section 86(1)(b)(i) applies only to cases where the representative has subjective actual knowledge of the baselessness of the claim for lien.” The Associate Justice, after a review of case law, found that liability for costs under section 86(1)(b)(i) required a finding that the representative subjectively knew of the baselessness of the claim for lien when it was registered and perfected. The case law also established that evidence of bad faith or improper purpose qualified the lawyer for a costs order under this subsection. The Associate Justice found that liability for costs under section 86(1)(b)(i) includes recklessness and wilful blindness. The Associate Justice concluded that there was insufficient evidence that FR had actual knowledge of the baselessness of the lien when it was preserved and perfected nor was FR reckless or wilfully blind in that regard. Accordingly, the motions were dismissed in their entirety. 2708320 Ontario Ltd. cob Viceroy Homes v. Jia Development Inc., 2024 ONSC 1608 (Ont. S.C.J.), affirmed 2024 ONSC 6519 (Ont. Div. Ct.).
This release features updates to Appendix B. Quantum Tables and Appendix IF. Issues in Focus.).
Highlights
APPENDIX IF. ISSUES IN FOCUS-Under what circumstances is there a duty of care between students and universities or university professors, and, if one does exist, what is the scope of that duty?-In Bella v. Young, the Supreme Court of Canada succinctly delineated the law of negligence, and illustrated the duty of care that formed the core of tortious liability based on negligence or negligent misrepresentation. However, in Bella, it was not the law of negligence that was noteworthy, because the basic legal principles of negligence were well established and fairly non-controversial. Rather, it was the novel context of the case that was of primary significance: a duty of care arising between a student and university professors, as well as with the university itself. Bella’s recognition of the existence of a duty of care is significant because it expanded the circumstances in which the law of negligence applied, with the imposition of attendant responsibilities and liabilities for damages. While Bella recognized a duty of care between students and universities/professors, the exact scope of that duty remains indeterminate. The judicial perspective on the issue of the existence of a standard of care was reinterpreted in 2010 by the Ontario Court of Appeal in Gauthier c. Saint-Germain, 2010 ONCA 309 (Ont. C.A.), where it held that where “the plaintiff alleges factors that constitute a cause of action based on torts or a breach of contract, while claiming damages, the court has jurisdiction, even if the dispute stems from academic or educational activities of the university in question”. However, even where a court is found to have jurisdiction, a plaintiff must still plead the requisite elements of the cause of action. Regarding a tort action, the Court of Appeal made it clear that a student cannot simply state that a professor was too demanding in their evaluations, or revealed their incompetence.
APPENDIX B. QUANTUM TABLES- Harper v. Mezo, 2024 CarswellBC 1458 – Plaintiff, aged 64, suffered injuries when the driver of the vehicle in which she was a passenger fell asleep and drove off the highway at a speed of 80 km/h, traveling into a ditch and suffering significant damage to the front passenger side. After the collision plaintiff was airlifted to hospital with three spinal fractures, and remained in hospital for 10 days. Plaintiff suffered significant injuries, including a mild traumatic brain injury, three vertebral fractures, injuries to her sternum, soft tissues injuries to her shoulder, neck, and back, an injury to her left abdominal wall, right leg, right knee, and headaches. She had significant back pain, leg pain, arm numbness, shooting pains, and spasms. Pre-existing vertigo and dizziness were aggravated. She suffered anxiety and depression, post-concussion syndrome, cognitive difficulties, sleep difficulties, and chronic pain in her left shoulder, neck, and back. The impact of these injuries on plaintiff’s life was devastating. Defendants failed to establish that plaintiff failed to mitigate her damages. Power (J.A.) J. awarded plaintiff general damages in the amount of $250,000, as well as $517,100 for cost of future care.
The Manitoba Law Library would like to acknowledge with gratitude that we are situated on Treaty One Territory, the traditional lands of the Anishinaabe, Cree and Dakota peoples, and the homeland of the Métis Nation.
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