Looseleaf Updates – October
The following looseleaf texts have been updated:
Widdifield Executors and Trustees, Release #8
What’s New?
Estates and trusts – Estates – Actions involving personal representatives – Liability for Costs – The applicant’s father, D, was insured by the respondent, T Inc. D’s house sustained water damage and the respondent, E Inc., performed repairs. T Inc. issued a joint cheque to E Inc. and D. D deposited the cheque but refused to pay E Inc. E Inc. commenced an action for breach of contract but before it was complete D passed away. The applicant, who was the personal representative of his estate, continued the action. The respondents were successful and received cost awards. Since no assets remained in the estate to satisfy the judgment, a trial judge found the applicant personally liable for the costs of the counterclaim and third-party claim, but not for the costs of unsuccessfully defending the original claim by E Inc. The applicant’s application for leave to appeal and a stay was granted. The Court of Appeal held that whether a personal representative’s liability for litigation continued on behalf of an estate was a question of law with broader potential significance. The jurisprudence in Canada was not entirely settled on this issue and thus the appeal had merit: Fuller v. Epic Restoration Services Inc., 2025 BCCA 187, 2025 CarswellBC 1658 (B.C. C.A.).
Testamentary Intentions – Subjective Intent of Testator – Use of Common Sense – This was an appeal of a chambers judge’s decision in which the chambers justice reasoned that it was “common sense” that the testator would not set up the structure in the will which refers to oil and gas properties and directs that royalty revenues in a certain company are to be distributed to the beneficiaries if there was no value in her estate because she intended to direct virtually all economic value to go to the appellant with “only crumbs” going to the remaining four beneficiaries. The appellant argued that the chambers justice’s use of “common sense” was an error as he was using an objective standard to determine the subjective intent of the testator. The Court of Appeal disagreed. It noted common sense inferences could be used in determining whether it was more likely than not that a testator had a certain intention. Moreover, it noted that in this case, the chambers justice did not only rely on common sense inferences but relied on the entire wording of the will and significant other evidence of the context and circumstances to confirm his finding the company generating the royalties had not been gifted to the appellant and that the testator intended those revenues to be distributed equally to the four beneficiaries: Ferguson Estate (Re), 2025 ABCA 94, 2025 CarswellAlta 603
(Alta. C.A.).
Estate Trustee – Unreasonable Exercise of Discretion – Disposition of Digital Assets – The testator’s will with respect to the disposition of personal effects provided: To divide all articles of household and personal use or ornament belonging to me at death … between my sons who survive me as they may agree or failing such agreement as my Trustees in their absolute discretion shall decide. In the event either of my sons is then under the age of majority his guardian shall have the authority to choose personal property on his behalf and all or any of such personal property, whether chosen by my sons or their guardian, may be retained by my Trustees on behalf of my respective sons with authority to my Trustees to allow my sons and their guardian the use and enjoyment of all or some of such property during their minority. Upon my youngest surviving son attaining the age of majority, any items not previously distributed between my sons who are then alive as they mutually agree, or failing agreement in such manner as my Trustees in their absolute discretion shall decide. Any such articles not chosen by my sons or their guardian, or any articles in dispute, shall be distributed or disposed of according to my Trustee’s discretion and any proceeds of sale shall form a part of the residue of my estate. The executor retained the testator’s electronics on behalf of the boys. The court found that this was an unreasonable exercise of her discretion. It observed that electronics, like perishable goods, have a more-or-less short useful life. It noted that laptops, iPads, and celiphones that run on rapidly evolving software do not give the years of service of televisions, radios, or record players of two or more generations past. That suggested that a reasonable exercise of discretion would have been to allow the boys to use the electronics while the electronics could still be used: Garbera Estate, 2024 ABKB 185, 2024 CarswellAlta 730 (Alta. K.B.), additional reasons 2024 ABKB 641, 2024 CarswellAlta 2768 (Alta. K.B.).
Widdifield Executors and Trustees, Release #9
What’s New?
Will Variation Claim – Spousal Agreements – Whether Waiver Effective – The deceased and the applicant had executed a number of agreements confirming they were not spouses and waiving any right to bring an action against the other’s estate. After finding that they had been in a marriage-like relationship the court considered whether these agreements were a bar to her bringing a wills variation claim. It held that this was not so:
78 Cohabitation, marriage or separation agreements that preclude wills variation claims are not an automatic bar; instead, they are but one factor to be considered in weighing the merits of the moral claim: Chutter v. Wareing et al., 2000 BCCA 205 at para. 9. The deference paid by courts to marriage agreements as set out in Hartshorne v. Hartshorne 2004 SCC 22 may not apply in the wills variation context, as the testator’s moral obligations go beyond legal obligations: Steernberg v. Steernberg Estate, 2006 BCSC 1672 at para. 80.
Ramadan v. Coupal, 2025 BCSC 1194, 2025 CarswellBC 1900 (B.C. S.C.).
Estate Trustee – Renunciation of Appointment – Intermeddling – M, an executor, renounced his appointment then tried to revoke the renunciation, claiming that he had not been aware of the contents of the will and had not been given an opportunity to obtain legal advice. He claimed he would not have given up the role as trustee if he had known that the will had granted the trustees great discretion over distributions. He also relied on the doctrine of “intermeddling” saying that he could not have renounced without a court order because, before his renunciation, he had begun to take steps to administer the estate. On the issue of retraction of a renunciation, the court considered MacIsaac u. MacDonald, 1983 CarswellNS 114, 58 N.S.R. 199 (N.S. C.A.), in which the court cited the following passage from Walker, A Compendium of the Law Relating to Executors & Administrators, 6th ed. at p. 23:
An executor is not necessarily concluded by a renunciation once declared. The rule has long been that he may retract his renunciation at any time before a grant of administration has passed the seal, but not afterwards, from the possible inconvenience that might accrue in other quarters, if the chain of executorship once broken were thus suffered to revive. In any case the Court is not bound to allow a retraction.
The court also went on to also cite Feeney, The Canadian Law of Wills, 2nd ed. (1982, Butterworths), vol. 1, at pp. 139-140 in which it was stated that the court has the power to allow a retraction of a renunciation in a proper case. The court found, however, that the case before it was not a proper case to permit a retraction as it did not accept M’s evidence that he executed the renunciation “quickly”; that he was denied the opportunity to seek legal advice; that he was not aware of the contents of the will; that he had been misled as to the nature of the document and that he did not understand the purpose and consequences of the renunciation. The court went on to consider M’s submission that he could not have renounced the appointment without a court order because he had already intermeddled in the estate. The court acknowledged that renunciation is generally not available if a party has already intermeddled in the estate: Chambers v. Chambers, 2013 ONCA 511, 2013 CarswellOnt 11067 (Ont. C.A.), at para. 66. It noted, however, that while even a “slight act of intermeddling” with a deceased’s assets may preclude an executor from subsequently renouncing, the rule has been applied with some flexibility: Chambers Estate, at para. 66. M had submitted that the transfer of estate assets—the withdrawal of money from one of the deceased’s bank accounts and consolidation of this with funds at another bank, at the request of an executor—and the payment of household bills on behalf of the estate, constituted “clear intermeddling” such that renunciation was no longer available to M. The court did not agree. It stated that it would characterize M’s actions—the consolidation of the bank accounts under the executor’s direction, and the payment of some household bills—as a few minor steps to preserve the estate. They did not amount to deemed implied acceptance of the role of estate trustee: Chambers Estate, at para. 67, citing Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters Canada Limited, 2012), at p. 884. The court noted by contrast, there was evidence that prior to his renunciation, M had demonstrated an unwillingness to deal with the administration of the estate and stated that he would not serve as trustee of the Henson Trust set up under the will. The court distinguished Dueck v. Chaplin, 2015 ONSC 4604, 2015 CarswellOnt 10888 (Ont. S.C.J.), on which M relied. It noted that in Dueck, the application judge was persuaded that the applicants undertook “several meaningful actions in their capacity as Trustees”. The actions included: applying for a certificate of appointment of estate trustee with a will; realizing the assets of the deceased; paying some expenses of the deceased; commencing the application for an order giving directions; delivering a notice to objector; and corresponding with the respondent. Moreover, in taking these meaningful actions to administer the estate, the applicants in Dueck were not acting under the direction of another party: Chieffallo v. Blair, 2025 ONSC 3411, 2025 CarswellOnt 9387 (Ont. S.C.J.)
Rectification of Will Failure to Carry Out Intention of Testator Regarding Bequest – Impact on Residue – The a specific bequest of real property to her brother and the residue of her estate to her husband. Her will inadvertently included subsurface/mineral rights in this bequest. She had mistakenly believed that any mineral rights in the property would escheat to the Crown when she died and the parties and the court (on the basis of the evidence brought before it), agreed that she had not intended to include these rights in the bequest. An application was brought for the rectification of her will. The court found that there was no question that the will had failed to carry out the intention of giving only the surface rights to the respondent. However, the deceased’s brother argued that it was not sufficient to determine that the testator intended not to bequeath him the mineral rights for the requested rectification to move forward, but that because the effect of the rectification was that the mineral rights would fall to the residue of the estate and thus to the petitioner, the court had to go further and determine if the testator intended to bequeath them to the petitioner before the rectification could be considered. The court found, however, that this went beyond the rectification that was being sought from the court. The rectification sought, i.e., the express changes to the wording of the will that the court was asked to make, only removed the mineral rights associated with the property, leaving only a gift to the respondent of the surface rights to the land. No further rectification was sought, including no changes to the will to positively dispose of or deal with the mineral rights. What happened to the mineral rights was left to the operation of law, whether by statute or by the other terms of the will. The structure of the will was that there was only one carve out of the estate, and that was of the property left to the respondent. The residue of the estate was left to the deceased’s spouse, the petitioner. The court went on to state, while acknowledging that the respondent did not advance this position, that it knew of no authority for the proposition that there was a requirement relevant to the petition before it, that the testator had to have a complete and correct 2025 Thomson Reuters, understanding of the contents of the residue of her estate for the gift of it to her spouse to be valid: Re: Peckover Estate, 2025 BCSC 1240, 2025 CarswellBC 1946 (B.C. S.C.).
Lawyers & Ethics: Professional Responsibility and Discipline, Release #3
What’s New?
23:3 – History and Application of the Good Character Requirement – In a 2025 decision [Afolabi v. Law Society of Ontario, 2025 ONCA 257 (Ont. C.A.)] the Court of Appeal for Ontario reversed a decision of the Divisional Court [2023 ONSC 6727] holding that applicants for licenses were denied procedural fairness by the Law Society’s refusal to hold an oral hearing before denying their applications on good character grounds. The applicants for licensing had obtained answer sheets that duplicated examination questions and provided answers.
The Law Society’s Director of Licensing wrote to the applicants to say that the evidence supported the conclusion that they had engaged un prohibited actions, and that the appropriate administrative outcome was to deem void both the exam results and the applicant’s registration in the licensing process. The Director of Licensing also wrote that the applicants could re-register for licensing but only after one year; that if they chose to re-register in Ontario or any other jurisdiction, they must disclose that they had been sanctioned by a regulatory body; that the Law Society might conduct a further investigation into their good character; and that the Law Society would share the Director’s decision with other Canadian and territorial law societies… The applicants sought judicial review of the decision of the Licensing Director… The Court of Appeal allowed the Law Society’s appeal, and held that the Licensing Director’s decision was administrative, rather than quasi-judicial.
The Regulation of Professions in Canada, Release #8
What’s New?
Chapter 11 – Evidentiary Issues – In an important case, the British Columbia Supreme Court held that provisions barring the use of College documents in litigation breached section 96 of the Constitution. The applicant brought an action against the College of Physicians and Surgeons of British Columbia alleging that the College through a prescription review program had improperly interfered in his medical care of documents in the possession of the College. The College resisted on the basis of statutory provisions that prohibited disclosure. The Court concluded that the statutory provisions created a blanket exemption from disclosure of otherwise relevant documents. As a result, the Court considered that the statutory provisions prevented the Court from assessing whether the College had exceeded its jurisdiction in the operation of the prescription review program. Accordingly, the effect of the legislation was to put the actions of the College beyond the review of the Court thus affecting the Court thus affecting the Court’s core jurisdiction and breaching section 96 of the constitution. The Court declared the statutory provisions to be unconstitutional and of no force and effect to the extent that they provide no avenue for review by a Court to determine whether the documents should be produced in the context of the litigation. The case is currently under appeal. The decision of the British Columbia Court of Appeal is expected to provide important guidance with respect to the constitutionality of provisions protecting regulatory documents from disclosure.
Manitoba King’s Bench Rules Annotated, Release #3
What’s New?
3:446 Rule 57.01 Costs – General Principles – WSIB Investments (Infrastructure) Pooled Fund Trust v. Plenary Group (Canada) Ltd. et al., 2025 MBKB 73, 2025 CarswellMan 186 (Man. K.B.), per Kroft J.
The Court is empowered by rule 57.01(3) to set costs with or without reference to Tariffs A or B. An award of enhanced costs does not need to be “connected” to the tariffs in any way. Solicitor/client costs are not appropriate in this case as such costs are generally reserved to address conduct occurring during the litigation process as opposed to pre-litigation conduct.
The Law of Costs, Release #6
What’s New?
Solicitor-and-Client Costs – Charging Orders – Generally – This was an application in the Ontario Superior Court of Justice by the applicant law firm for a charging order against the respondents. The personal respondent was a former client of the applicant. The applicant was originally retained by the personal respondent in order to pursue both tort and accident benefits claims. There was a breakdown in the solicitor-client relationship. According to the applicant, the personal respondent attempted to resolve her AB claim directly with her insurance company. No tort claim had been commenced and it appeared likely that none would be commenced. The court determined that the applicant should not be entitled to a charging order against the respondents. The application was dismissed. The personal respondent signed a retainer agreement with the applicant. Under this agreement, the applicant was to pursue the personal respondent’s claim for benefits under the Statutory Accident Benefits Schedule (“SABS”). Under the retainer agreement there was a provision that addressed disbursements as a first charge. That provision stated: “We have the right to be reimbursed for these disbursements as a first charge on any amount you recover under an award of settlement of the matter”. [para. 5]. There was also a provision in the agreement directing that funds received from the settlement of the matter had to be sent to the applicant and placed in trust with them. In addition, the agreement also provided that the applicant had a right to recover disbursements and legal fees in the event that the retainer agreement was terminated before the case was concluded. In reviewing the law, the judge stated, “For a solicitor to be entitled to a lien under this section [section 34 of the Act], there would have to be a Superior Court action that the solicitor had prosecuted or defended. By statute, the SABS claim must be brought before the License Appeal Tribunal. As a result, a SABS claim cannot be the subject of a charging order under the Solicitors Act.” [Citation omitted] [Paragraph14]. if there were an assignment of SABS benefits from the client to the applicant, that assignment would be void. Therefore, even if I am wrong about whether the criteria for a charging lien has been met, I would exercise my discretion and refuse the request for the lien. The Court should not grant an equitable remedy that would circumvent the legislative intention to limit assignments of benefits.” [para. 22]: Alan-i Law Firm Professional Corporation v. Roberts et al, 2025 CarswellOnt 2206 (Ont. S.C.J.).
Security for Costs – When Security will be Ordered – Plaintiff Residing Out of Jurisdiction – General – The Supreme Court of Prince Edward Island heard argument regarding a motion for security for costs brought by the defendant, Air Canada, against the plaintiff, a resident of the United States of America. The motion was brought under rule 56.01 of the Rules of Civil Procedure (P.E.I.). The action arose out of injuries suffered by the plaintiff while she was boarding a flight at the Charlottetown Airport. The plaintiff had no assets in the Province. The plaintiff was employed as a medical secretary at a doctor’s office in New Jersey. This case mostly centred on the interpretation of what constituted an accident within the meaning of the Montréal convention. Based on the record, the judge was satisfied that the plaintiff could point to an interaction by the carrier that provided a link in a claim of causation resulting in her falling off the aircraft and suffering bodily injury. Accordingly, the judge found in the circumstances that the plaintiff had met the onus of showing, on a prima facie basis that there was merit to her claim. It was up to the trial to decide if she was ultimately successful. The court was of the view that the plaintiff had a good chance of success on the merits. In the circumstances, requiring her to provide security for costs simply because she resided out of the jurisdiction did not provide her with that access to justice which she deserved as an individual who sustained bodily harm while in Prince Edward Island: Freid v. Air Canada, 2024, A.C.W.S. 4755 (P.E .I.S.C.).
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