Looseleaf Updates – December 5
The following looseleaf texts have been updated:
Judicial Review of Administrative Action in Canada, Release #3
What’s New?
Judicial Review and Abuse of Process – In Saskatchewan (Environment) v. Metis Nation, 2025 SCC 4, Saskatchewan appealed the decision of the Court of Appeal denying its application to strike certain paragraphs from an application filed by the Metis Nation. Saskatchewan argued that the paragraphs should be struck because they made reference to claims raised in ongoing litigation between the same parties and that as such the inclusion of those paragraphs in the application constituted an abuse of process. The Supreme Court dismissed the appeal and concluded that it was not an abuse of process to bring an application for judicial review where the issue in the judicial review was similar to ongoing or past litigation. The Supreme Court noted that when claims of abuse of process are alleged in litigation involving Aboriginal rights, the unique context of those rights must be considered. While noting that there was overlap with other litigation involving these parties, the Supreme Court noted that an abuse of process requires more than just overlap. In addition, in addressing the issue of a multiplicity of proceedings , the Court noted that a multiplicity of proceedings is not, in and of itself, proof of an abuse of process, Rather the issue is whether the multiplicity of proceedings (such that they exist) violates the principles of judicial economy, consistency, finality and the administration of justice. In this case they did not.
Scope of Judicial Review – In MacKinnon v. Canada (Attorney General), 2025 FC 422, the Federal Court weighed in on the question of whether it had jurisdiction to review Prime Minister Trudeau’s advice to the Governor General to prorogue Parliament and if so, whether the issue was justiciable. Crampton CJ found that the Prime Minister’s advice was subject to judicial review. In giving the advice to the Governor General, the Prime Minister engaged in the “exercise of Crown prerogative power.” The Federal Court also noted that “the exercise of prerogative powers by federal officials is within the purview of the definition of “federal board, commission or other tribunal” under the Federal Courts Act. The Federal Court also noted that at least one of the issues raised by the application for judicial review, whether the Prime Minister had exceeded limits on his authority when he gave his advice to prorogue Parliament to the Governor General, was justiciable. Crampton CJ noted that there are constitutional (and other) legal limits “that may circumscribe the prerogative to prorogue Parliament” and that those legal limits provide the standard against which the issue should be adjudicated. Other issues raised by the application, those going to the merits of the Prime Minister’s decision, were found not to be justiciable.
Production of Documents – In British Columbia (Lieutenant Governor in Council) v. Canada Mink Breeders Association, 2023 BCCA 310 the B.C.
Court of Appeal confirmed that all documents directly before Cabinet must be produced in an application for judicial review of an Order in Council. The underlying issue involved an Order in Council under the Animal Health Act. The Canada Mink Breeders Association filed an application for judicial review of the OIC. As part of that application, the Mink Breeders As sociation sought production of the entire record that was before Cabinet in making the decision leading to the OIC. The Court of Appeal concluded that a broad range of information should
be produced. It held that all material considered by Cabinet in passing an Order in Council was producible.
Injunctions and Specific Performance, Release #1
What’s New?
Interlocutory injunctions – undertaking in damages – There is a discretion to waive the undertaking if the injunction is sought on behalf of a class: Li et al. v. Barber et. al., 2022 ONSC 1176 (Ont. S.C.J.) at para. 38; Imperial Tobacco Limited, 2024 ONSC 6885 (Ont. S.C.J.) at para. 33. Where the defendant is unlikely to suffer damages, the plaintiff may be relieved from giving an undertaking: MacDonald v. Canada (Public Safety), 2025 FC 1202 (F.C.). Where there is an issue of the plaintiff’s ability to satisfy the undertaking, the injunction may be granted subject to an inquiry as to the plaintiff’s means and the likely damages to be suffered by the defendant: Repchinsky v. Saskatchewan (Government of), 2024 SKKB 158 (Sask. K.B.).
Injunctions: homeless encampments – Matsqui-Abbotsford Impact Society v. Abbotsford (City), 2024 BCSC 1902 (B.C. S.C.), leave to appeal allowed 2025 BCCA 78 (B.C. C.A.) at para. 214, refused an injunction to prohibit the dismantling of a homeless encampment but “on the condition that the City implement a phased approach to gradually reduce and relocate the number of encampment residents… Displacement should only occur when adequate shelter options, including access to harm reduction services, are available.”
Injunctions and criminal law – The British Columbia Court of Appeal held that it is an error of law to refuse an injunction to protect the rights of a private party on the ground that resort to the criminal law is possible: Teal Cedar Products Ltd. v. Rainforest Flying Squad, 2022 BCCA 26 (B.C. C.A.), leave to appeal refused 2022 CarswellBC 2684 (S.C.C.).
Injunctions to enforce municipal by-laws – An injunction was granted in Ontario against “persons unknown” under a “nuisance party” bylaw to restrain an unauthorized St. Patrick’s Day party organized by social media as there was evidence of previous similar events involving nuisance behaviour, property damage, road blockages and public safety risks that left the municipality with hundreds of thousands of dollars of uncoverable costs: City of Waterloo v. Persons Unknown, 2025 ONSC 1572 (Ont. S.C.J.).
Interlocutory injunctions in Charter cases – An Ontario judge who had reserved his decision after a full hearing of the application granted an interlocutory injunction pending the release of his final decision to restrain the application of a law requiring the removal of bicycle lanes, holding that “presumption in favour (of the government may be overcome if the applicant has a particularly strong case and will suffer irreparable harm – both of which involve giving more weight to the first two RJR factors”: cycle Toronto et al. v. Attorney General of Ontario et al., 2025 ONSC 2424 (Ont. S.C.J.) (permanent injunction granted 2025 ONSC 4397 (Ont. S.C.J.)). On an earlier motion, an interlocutory injunction as refused: Cycle Toronto et al. v. Attorney General of Ontario et al., 2025 ONSC 1650 (Ont. S.C.J.).
In Kerber v. Alberta, 2025 ABKB 98 (Alta. K.B.), the court granted an interlocutory injunction suspending the operation of a Ministerial order that required students with complex needs at home or on a rotating in-school basis due to a strike involving school-support workers. The court found that the “exclusion of vulnerable people in the delivery of service is contrary to Ethel public interest” (at para. 129) and that “the relative strength of the applicants’ case, considered in combination with the nature and extent of potential harm arising from the facial discrimination of the Ministerial Order outweighs the public interest in the enforcement of legislation in this case” (at para. 151).
An Ontario case granted an exemption pending the release of a final decision in a case involving a Charter challenge of a statue requiring the closure of supervised injection sites from a law requiring the closure of such sites located within 200 metres of a school or daycare: The Neighbourhood Group et al. v. HMKRO, 2025 ONSC 1934 (Ont. S.C.J.).
Injunctions: nuisance – The British Columbia Court of Appeal held that in injunction is still the presumptive remedy for nuisance and that the balance of convenience test for interlocutory injunctions does not apply. At the same time, however, the remedy is discretionary, and it is open to a trial judge to find that a damages award, combined with ameliorative measure to reduce the harm, is an appropriate remedy: Hill v. Herd, 2025 BCCA 173 (B.C. C.A.).
Injunctions: end of life cases – The United Kingdom Supreme Court held that there is broad power to grant injunctions to protect the privacy interests of patients and clinicians involved as well as the integrity of the court’s process in proceedings of this kind: Abbasi v. Newcastle upon Tyne Hospitals NHS Foundation Trust, [20251 UKSC 15 (U.K. S.C.).
Statutory injunctions – Regional Municipality of York v. DiBlasi, 2014 ONSC 3259 (Ont. S.C.J.) at para. 62: “In seeking a statutory injunction, the factors that would normally be considered in an application for an equitable injunction do not apply. Irreparable harm and balance of convenience do not need to be considered because the public authority is presumed to be acting in the best interests of the public and a breach of the law is considered to be irreparable harm to the public interest”.
Natural England v. Cooper, [20251 EWCA Civ 15 (Eng. C.A.) at para. 105: “If a public body is given responsibility for performing public functions in a particular area, it will usually be implicit that it is entitled to apply for an injunction to protect its special interest in the performance of those functions.”
Contempt of Court: sanctions for civil contempt – Castillo v. Xela Enterprises Ltd., 2024 ONCA 141 (Ont. C.A.) at para. 89: “. . . ensuring compliance with court orders also engages important public law issues, including respect for the authority and dignity of the courts and for the rule of law… As a result, punishment has been added as a secondary purpose of sentencing for civil contempt for breach of a court order.”
Specific Performance: employment contracts – The United Kingdom Supreme Court upheld an injunction in favour of unionized employees who were terminated and offered reinstatement on other terms as part of a scheme by the employer to alter their entitlement to the retained pay” component of their compensation. The court agreed that the injunction amounted to an order of specific performance but held it to be a proper remedy. The employer retained confidence in the employees and damages would be inadequate. Assessing damages would require speculation on how long the employment would have continued under the altered terms and damages for wrongful dismissal do not ordinarily reflect nonpecuniary losses for loss of job satisfaction or upheaval: Tesco Stores Ltd v. Union of Shop, Distributive and Allied Workers and others, [2024] UKSC 28 (U.K. S.C.).
Specific performance: sale of shares – The case for specific performance of the sale of shares in a private company is strengthened where there is a shotgun clause, a provision “designed to quickly separate shareholders from each other while keeping the business intact”: Zaldin v. Goldstein et al., 2025 ONSC 453 (Ont. S.C.J.) at para. 49. Specific performance: tender A purchaser claiming an abatement of the purchase price who at tempted to close by tendering a reduced amount was held not to have made a valid tender as there is no authority to support the proposition that “a purchaser can unilaterally withhold a portion of the purchase price where there is a dispute about what the purchase price is”: 1785192 Ontario Inc. v. Ontario H Limited Partnership, 2024 ONCA 775 (Ont. C.A.) at para. 57.
Manitoba King’s Bench Rules Annotated, Release #4
What’s New?
3:446 Rule 3:201.50 Rule 24.02(1) Dismissal for Delay – Long Delay Rule – Hradowy v. Magellan Aerospace Limited, 2024 MBCA 9, 2025 CarswellMan 25 (Man. C.A.), per Simonsen, J.A. (for the Court)
On appeal from an order of the motion judge dismissing an action for delay, which decision came on appeal from a decision of the associate judge who had refused to dismiss the action. At issue was whether the provision of answers to undertakings constituted a significant advance in the claim.
The Court allowed the appeal holding that, while the motion judge correctly identified the proper functional test, there were reversible errors in the application of that test to the facts. The Court held that the motion judge erred by: (a) not taking the conduct of the defendant into account; and (b) the motion judge failed to consider whether the production of the defendant’s undertakings constituted a significant advance.
3:281 Rule 29.00 Third Party Claims – Prejudice or Delay to Plaintiff – Eert v. Petkau et al., 2025 MBKB 2, 2025 CarswellMan 4 (Man. K.B.), per Perimutter, A.C.J.
The two-part test to consider whether leave should be granted to file a third party claim requires the Court to consider: (a) whether the defendants have established a prima facie cause of action against the proposed third party; and (b) whether granting leave to add a third party will cause the plaintiff to suffer prejudice or undue delay in the prosecution of its action against the defendant.
Remedies in Tort, Release #10
What’s New?
Chapter 24. Strict Liability – Statutory Authority – Where the legislature has sanctioned the use of particular means, the parties will not be liable for any injury unless they have contributed to it by their own negligence. However, the courts have chosen to construe authorizing legislation strictly. The requirement of negligence is generally construed to mean the absence of reasonable care: this involves regard to the gravity of the harm, the likelihood of its occurrence, and the utility of the defendant’s conduct. However, in the context of this defence, the courts have tended to restrict its meaning by holding that “if the damages could be prevented it is, within this rule, negligence not to make such reasonable exercise of powers.” Similarly, it has been suggested that “it is negligence to carry out work in a manner which results in damage unless it can be shown that that, and only that, was the way in which the duty could be performed.” Thus, defendants must satisfy the court that the activity was performed in the only possible way, otherwise they will be found negligent and the defence of statutory authority will not be available to them. That said, it should be noted that there are some statutes that expressly exempt government from liability under the Rylands rule in particular situations.
Chapter 24. Strict Liability – Defences – Many of the common law defences to cattle trespass are the same as those under the rule in Rylands v. Fletcher. As such, consent is a complete defence and a claim may be met with the defence that the damage was due to the plaintiff’s own default. Also, it is likely a defence that the escape or trespass resulted from the act of a third party. In many jurisdictions, of course, liability and available defences are now governed by legislation; there is a tendency for each province to enact its own rather idiosyncratic provisions. Along with trespass and illegality, the plaintiff’s conduct in exposing himself to liability is a defence to a scienter action. Thus, a person who shouts at and frightens a horse or teases an animal has been held liable for their own injury. Similarly, an employee having knowledge of a bull’s dangerous disposition who voluntarily agrees to handle it has been deemed to have voluntarily assumed the risk. Also, a mother who knows the defendant’s dog has previously bitten a child, but still places her child on the floor while visiting the defendant is partially liable for her child’s injury. Statutory defences to a scienter action are available to the Crown in some provinces.
The Law of Bail in Canada, Release #2
What’s New?
The Bail Hearing: Procedure and Evidence – The Standard and Onus of Proof – The Onus of Proof – Introduction – A reverse onus provision creates a rebuttable presumption of detention. In R. v. Pitcher, 2008 NLTD 34, Osborn J. described the situation this way, at paras. 13-14:
An accused facing a reverse onus situation is in a difficult position. The default position is continued detention; to avoid this result the accused must prove one positive and two negative circumstances:
- that he or she will attend court as and when required;
- that continued detention is not necessary for the protection and safety of
the public; and - that continued detention is not necessary to maintain confidence in the
administration of justice…
It is difficult to prove a negative, and an accused faces a significant evidentiary hurdle in displacing the presumption that continued detention is justified.
The Law of Bail in Context – Bail and Social Context – Generally – Although s. 493.2 of the Criminal Code has removed any doubt as to the relevance of Gladue principles, prior to this amendment, the acceptance of this proposition was slow and inconsistent. As Professor Jillian Rogin observes, the jurisprudence in this area is not well developed. This may well be due to difficulties in adapting the specialized sentencing framework constructed by the Gladue line of cases to the pre-trial context in which the presumption of innocence is ascendent. Section 493.2 will impact on a number of different areas of the law of bail. It will factor into the ultimate decision to release or detain an accused person. It will arise when crafting conditions of release, as well as determining the need for and the suitability of sureties. It may require a different way of evaluating past bail breaches. Moreover, all of these is sues may engage evidentiary considerations not previously considered. These are some the issues with which the courts must grapple.
The Regulation Of Professions In Canada, Release No. 9, November 2025
What’s New in This Update?
This release features updates to Chapter 14 — Sentencing, Chapter 15 — Appeals and Judicial Review, Chapter 16 — Admission to the Profession, Chapter 17 — Unauthorized Practice and Chapter 18 — Hospital Privileges for Physicians.
Highlights
Chapter 14-Sentencing—Appendix 14A. Sentencing Tables
Chapter 16—Admission to the Profession—The Ontario Court of Appeal reversed the Divisional Court’s decision [Afolabi v. Law Society
of Ontario, 2025 ONCA 2571 allowing the Law Society’s appeal. The Court held that in the circumstances of a registration decision, neither
the legislation nor procedural fairness required that an oral hearing be provided to the applicants. The Court of Appeal noted that applicants:
were made aware of the allegations; had been provided with appropriate disclosure; had been provided an opportunity to make written submissions about the allegations; had been provided an opportunity to make written submissions with respect to the proposed administrative consequences; and had availed themselves of an opportunity for an internal review. In these circumstances, the Court of Appeal concluded that the applicants had been provided with procedural fairness.
Lawyers And Ethics: Professional Responsibility And Discipline, Release No. 4, November 2025
What’s New in This Update?
APPENDIX IF – Issues in Focus
- § IF:16. Will a solicitor of record be removed when he or she acts both for the plaintiff and one of the principal witnesses of the defendant
- § IF:19. Where an associate in the defendant’s law firm has taken notes of an interrogation of a representative of the plaintiff, are such notes privileged such that they may not be produced for purposes of cross-examination of the as sociate?
- § IF:20. What are the rules with respect to lawyers’ ability to borrow from their clients?
APPENDIX WP – Words and Phrases - § WP:68. FIDUCIARY (ON) A fiduciary is a person who is in a relationship with another person marked by loyalty, trust, confidence and reliance on skill and advice. (Farid u. Brunt (2025), 2025 CarswellOnt 4882, 2025 ONSC 2117 (Ont. S.C.J.) at para. 237 Fraser J.)
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