Party-and-Party Costs – Definition – Generally – The judge in this case in the Superior Court of Justice for Ontario dismissed a motion by the plaintiffs for summary judgment against the defendant on their claim for damages of $113,000. The judge granted the summary motion of the defendants and dismissed the action. The purchasers’ claim was for the return of a “revival fee” on an expired agreement of purchase and sale for a home built by the defendant. The defendant sought its costs of the motion and the action which costs total $57,953.69 inclusive of taxes and disbursements. Most of this amount, namely $50,269.50, was substantial indemnity fees for the period after the defendant served its offer to settle. The defendant’s partial indemnity costs for the period before it made its offer was $855. The rest was taxes and disbursements. The defendant argued that its offer of $1000.00 plus costs of $750 should have been immediately accepted. The purchasers say that the defendants’ costs should be no more than $15,000. The goals of an award of costs are not limited to indemnity. There are broader, discretionary considerations involved, which are articulated in rule 57.01 of the Rules of Civil Procedure (Ont.). In discuss ing rule 51.07(7) of the Rules of Civil Procedure, the judge stated… “the court is to “…. devise and adopt the simplest, least expensive and most expeditious process for fixing costs… .“. The general principles for the exercise of my discretion in determining costs are set out in rule 57.01(1). Considering all of the factors the judge found a fair and reasonable amount that should be paid by the purchasers to be $30,000 for costs all-inclusive: Correa v. Vaistar Homes (Oakville Sixth Line) Inc., 2024 ONSC 5184, 2024 CarswellOnt 14131, 64 R.P.R. (6th) 333 (Ont. S.C.J.).
Party-and-Party Costs – Several Defendants – The Hague Convention – In April 2024, the trial judge, in this case before the Court of King’s Bench of Alberta, following a hearing of the father’s application under the Convention on the Civil Aspects of International Child Abduction, 1343 UNTS 89, Can TS 1983 No 35, 19 ILM 1501 (“Hague Convention”), found in favour of the father’s application. The father sought costs against the mother. The father requested costs on a full indemnity basis in the total amount of $41,426 or alternatively, party-party costs. As the trial judge noted, “The starting point for costs award in a Hague Convention proceeding is Article 26. The court notes: “Article 26 expressly provides the court authority to award costs outside those ordinarily provided for in family law litigation under the Rules of Court. However, the word “may” in Article 26 reinforces the discretionary nature of the costs award in Article 26. The discretion granted in Article 26 is broad. The broad discretion under Article 26 to order costs must be exercised judicially.” The judge then addressed costs principles in Alberta. The judge confirmed that Alberta courts have considerable discretion in setting reasonable and proper costs under rules 10.29, 10.31, and 10.33 of the Alberta Rules of Court. In this case, the judge found that there was an imbalance of power and significant financial disparity between the parties. In the judge’s view, the significant imbalance of power and means warranted a cost award that would achieve a more equitable result. The judge concluded on the balance of probabilities that this was not an appropriate case for costs on a full indemnity or solicitor-client basis under the rules. The judge did not find conduct of the mother that would justify the higher costs award. The judge also did not find that the father’s offer to settle satisfied the provisions of the rules. The judge found that the mother’s limited financial circumstances was a relevant factor among others in the rules and considered structuring a just and equitable costs award in this case. In the end, the judge awarded the father’s 60 % of his Canadian legal fees. The judge denied the father’s United States legal fees. The judge also denied the father’s claim for trial attendance costs and only allowed a portion of the travel expenses for return of the children. The judge allowed the mother to pay the costs award at the rate of $1000.00 a month: LY v. RY, 2025 ABKB 12, 2025 CarswellAlta 43, 11 R.F.L. (9th) 350 (Alta. K.B.).
Summaries of Representative Oppression Cases – Failure to Comply with Corporate Governance Requirements – Jahnke appealed from the Remedy Judgment on the basis he remedy ordered was inadequate and the only remedy that would be appropriate is a buy-out of her shares at a valuation of $1.9 million based on a liquidation value of the Company’s sole asset, less the value of the preferred shares and liabilities. Justice Griffin did not consider it a valid complaint that the judge decided on a remedy of his own making as opposed to choosing a remedy of his own making as opposed to choosing a remedy that matched the submissions of one of the parties. The judge had wide discretion under the BCA to fashion an appropriate remedy, In a case of this nature, a judge is not required to accept one of two proposals for a remedy as a binary choice between party A’s or party B’s proposed remedy. Nor is a judge required to run each permutation and combination of possible remedies by the parties before deciding what is appropriate. Justice Griffin explained that the overall problem with Jahnke’s position was that she never varied from seeking a remedy that would match what she asserted were her expectations, yet the judge concluded in the Liability Judgement that those expectations were not reasonable. Justice Griffin explained that Jahnke failed to appreciate she made arguments before the judge and the judge considered them, but in the end the judge’s conclusions as to the oppressive conduct were limited to two things: the failure to produce audited financial statements and the failure to organize and hold proper AGMs. There was no basis for interference with the judge’s refusal to conclude that other conduct was oppressive. The judge ordered a remedy that matched the oppressive conduct he found. Jahnke had not shown the judge erred in the exercise of his discretion: Jahnke v. 436537 B.C. Ltd., 2024 CarswellBC 2133, 2024 BCCA 276 (B.C.C.A.)
Summaries of Representative Oppression Cases – Mismanagement – The parties separated on March 24, 2021. Both parties’ incomes were principally derived from their jointly owned farming businesses. They equally owned a layer (egg) farm that they operated through a partnership. They also equally own a broiler (chicken) farm that they operated through a corporation. The Applicant and the Respondent were equal shareholders in and were the two sole directors of the Corporation. The Respondent claimed that the Applicant violated his reasonable expectations as a director and shareholder of the broiler farm Corporation. Justice Petersen was satisfied that the Applicant had exercised her powers as a director of the Corporation in a manner that was oppressive, or unfairly prejudicial to, or that unfairly disregarded the Respondent’s interests. Justice Petersen concluded that the Respondent had established his entitlement to equitable remedies for oppression and for the Applicant’s breach of her fiduciary obligations to him as a business partner. However, some of the remedies sought by the Respondent went beyond what was necessary to satisfy his reasonably held expectations, protect his legitimate business interests, deter fiduciary faithlessness, and preserve the integrity of the parties’ fiduciary relationship. In particular, the Respondent’s request for an order that the Applicant take no step in the management of the layer farm without consulting and obtaining his prior consent for any business decision, including all payments and receipts, was impractical to the point of being unworkable. The evidence suggested that the Applicant’s administrative decision-making authority should only be curtailed in respect of transactions involving her family members and payments made to herself. Similarly, the Respondent’s request for an or der entrusting him with the primary financial management of the broiler farm Corporation would not be practical in the current circumstances, in which money regularly flowed be tween the two businesses. Realistically, until the parties’ interests in the two farms were disentangled, they needed to be managed by the same individual. The Applicant must be transparent in her decision-making and must not be permit ted to engage in business transactions with family members without the Respondent’s consent. The evidence did not suggest that she had acted contrary to the businesses’ best interests in dealings with arm’s length parties: Stickney v. Stickney, 2024 CarswellOnt 9483, 2024 ONSC 3581, 2024 A.C.W.S. 3214, 3 R.F.L. (9th) 134 (Ont. S.C.J.).
Appendix IF. Issues in Focus – Social media has proven to be a broadly-accessible platform for sharing content instantaneously, and on a global scale. For professionals, it can also serve as a too-convenient method for potentially running afoul of regulatory parameters touching upon advertising, professionalism in communication, constraints on off-duty conduct, and similar concerns. The interplay between professional regulation and the use (or misuse) of all type of social media is a nascent legal issue. Although the case law to-date has been scant, this memo addresses some of the current developments in this area, largely through illustrative rulings by disciplinary committees.
Words and Phrases – Conflict of Interest – A conflict of interest is an interest that gives rise to a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s duties to another current client, a former client, a third person, or the lawyer’s own interests: Neil at para. 31; Code, Chapter 1, Rule1.1-1: 0928772 B.C. Ltd. v. Ross (2024), 58 B.L.R. (6th) 31, 2024 BCSC 1436, 2024 CarswellBC 2286 (B.C. S.C.) at para. 229 Jackson, J.
Words and Phrases – Litigation Privilege – …litigation privelege…exists in the context of anticipated or actual litigation and applies to communications for the purpose of the dispute…: Gray v. 1534 Harwood Street (St. Pierre) Ltd. (2024), 2024 CarswellBC 1244, 2024 BCSC 742 (B.C. S.C.) at para. 11 Gomery J.
WP:79 Conduct Unbecoming – Nova Scotia – In summary, under Regulation 9.1.3(a), “conduct unbecoming” extends to personal or private conduct that tends to bring discredit upon the legal profession. If one or more of items (i), (ii), (iii) is shown, that is “conduct unbecoming”. If none is shown, then proof of other personal or private conduct that tends to bring discredit upon the legal profession may establish “conduct unbecoming”: Fraser v. Nova Scotia Barristers’ Society (2024), 2024 CarswellNS 551, 2024 NSCA 63 (N.S. C.A.) at para. 31 – Bourgeois, Fichaud and Derrick, JJ.A.
IF:32 – Challenges to By-Laws in the Professional Regulatory Realm – In the sphere of professional regulation in Canada, challenges to a regulator’s by-laws are relatively infrequent. Nonetheless, they are guided by well-established principles that reviewing decision-makers must apply, especially when that review involves assessing whether an impugned by-law overreaches a regulator’s powers, or else impinges on a professional’s right to procedural fairness. In recent years, there have been several noteworthy decisions in this area. These have addressed important topics such as the nature of the notice that must be given to members of various professions by their regulators, and the scope of permitted regulatory oversight on member conduct. This Memorandum highlights some of those recent cases, after giving a brief overview of the established law on by-law challenges in the Canadian professional regulatory context.
Appendix IF – Issues in Focus – Human Rights Issues in Professional Regulation – Part Two: Discipline and Accredition – In the realm of professional regulation, human rights issues can arise in numerous contexts. One very common area of focus is the impact of potential human rights-based discrimination—under either human rights legislation or the Charter—on applicants as part of their individual accreditation and registration processes. This topic was addressed in the first of this two-part Memo, titled “Human Rights Issues in Professional Regulation- Part One: Accreditation and Registration”. However there are other issues in the same vein that are worth noting, specifically:
Human rights concerns in the disciplinary process; and
Human rights in connection with the accreditation of those educational institutions that train professionals in the first place.
In this second part of the Memo, these two narrow topics will be explored in Part I and Part II, respectively.
Party-and-Party Costs – Inherent Jurisdiction as to Costs – Interim Costs – Interim costs, also referred to as advance costs, are, essentially, costs payable in advance, since they are intended to provide funding to the end of the litigation. In this case before the Superior Court of Justice for Ontario, the defendant, the Attorney of Canada, brought a motion seeking leave to examine three expert witnesses before trial. The parties resolved the motion in all respects. The only issue left for the judge was to adjudicate the quantum of the payment of interim costs by Canada to the plaintiff and costs of the motion. The judge concluded that the quantum of interim costs in this case ought to negate any financial prejudice caused to the plaintiff as a result of having to conduct these examinations before trial. In the judge’s view the prejudice at issue was the increased costs from work that would necessarily have to be duplicated, and the burden of having to incur the expenses for these examinations before they would otherwise be incurred. In the judge’s view interim costs of $150,000 was fair and reasonable in the circumstances: Six Nations of the Grand River Band of Indians v. The Attorney General of Canada and His Majesty the King in Right of Ontario, 2024 A.C.W.S. 2954 (Ont. S.C.J.).
Party-and-Party Costs – Special Provisions as to Costs Disbursements – General – This case in the British Columbia Supreme Court involved two separate costs decisions. The first involved a decision on disbursements which is discussed here. The court noted that Supreme Court Civil Rules (SCCR) 14-1(5) requires an assessing officer to determine which disbursements were necessarily or properly incurred in the proceeding and a reasonable amount for those disbursements and set out the applicable principles to be applied on an assessment of disbursements have been summarized in the case law. The court noted that the plaintiff was self-represented at the assessment of costs and had been for some time prior to trial. “During the course of the assessment of costs, it was clear that the plaintiff did not understand what constituted a proper disbursement. Also, where the tariff provided for a range of units claimable, the plaintiff consistently claimed the maximum amount regardless. As a result, the plaintiff’s views concerning his claim for costs were completely unrealistic. This combination of factors made the potential for settlement of the plaintiff’s bill of costs illusive at best.” [para.9]. Further, if the tariff items representing the assessment of costs including a half day for the prehearing conference and two days for the assessment of costs were removed from the equation, then the defendants did beat their offer to settle the plaintiff’s bill of costs. The assessment officer agreed with the submissions of the defendants that the reduction they sought was appropriate in the circumstances: Emond v. British Columbia (Attorney General), 2024 A.C.W.S. 1641 and 2024 A.C.W.S. 2471 (B.C.S.C.).
Security for Costs – When Security will be Ordered – Another Proceeding Pending for the Same Relief; Unpaid Costs of the Same or Another Proceeding – Unpaid Costs of the Same or Another Proceeding – This was a motion in the Prince Edward Island Court of Appeal for security for costs in the proceeding and costs in the Court of Appeal. Judgments or orders against the appellant for costs had not been paid. The motion was granted. The sum of $22,752.62 was ordered as security for the cost of the proceeding and security for the costs of appeal. The court noted that security for costs of the proceedings is not routinely granted and some justification must be offered by the moving party. The justice of the case required that costs of the proceeding also be posted in this matter. The underlying action related to a claim regarding a landlord/tenant dispute respecting commercial premises. Both parties asserted that the other party failed to comply with the terms of the lease. The motions Judge awarded costs in the amount of $10,652.62 to the landlord. The tenant appealed from both the decisions and as well the award of costs. The court reviewed the legal principles that should be considered when determining if security for costs should issue. In this case, the judge was satisfied that this was an appropriate case to award security for costs in both the appeal and for the costs awarded by the trial judge for a multitude of reasons. The judge was satisfied that there was good reason to believe that the appeal had all the hallmarks of being frivolous and vexatious. “Frivolous and vexatious” has no defined meaning in the Rules but all courts, including this court consistently treat the terms in much the same manner. A frivolous appeal has been denoted as one that is “devoid of merit” or has “little chance of success”. A vexatious appeal includes one taken to “annoy” the party opposite or to conduct an appeal in a less than diligent manner. It may also include a failure to comply with the Rules, court orders and costs orders”: The Little Poultry Company v. Kris Taylor, 2024 ACWS 2692 (PECA).
Assessment of Costs – The Assessment Officer – Objections to Assessment; Review of Assessment; Certificate of Assessment – Objections to Assessment – The applicant, in this decision in the Ontario Superior Court of Justice, moved to set aside the assessment order of the assessment officer who upheld the account of the applicant’s former lawyers in full after a four-day hearing. The lawyers moved to dismiss the applicant’s motion and to confirm the assessment order arguing that the applicant’s failure to make objections to the assessment decision pursuant to rule 58.10 of the Rules of Civil Procedure (Ont.) meant that there was no jurisdiction to consider the applicant ‘s challenge to the order. The assessment officer delivered reasons upholding the entirety of the lawyers’ bills. The court noted that the ability to challenge the decision of an assessment ordinarily depends on the delivery of objections. In this case, the applicant did not deliver objections to the assessment officer’s decision. The judge also disagreed with the submission of the applicant that her challenges to the assessment officer’s decision were not suited to the objection process. The objection process is one that is, in part, designed to allow both reconsideration of issues and the issuance of supplementary reasons to cure any insufficiency. The court also dud not see the need to call expert evidence on the standard of care before advancing any criticisms of counsel’s skill in the context of an assessment of an account. To demand expert evidence as a prerequisite to arguments about the lawyer’s performance would be to risk making the assessment procedure entirely inaccessible to clients of modest means. The court granted the lawyer’s motion to confirm the certificate of assessment: Atkinson v. Whaley Estate Litigation, 2023 ONSC 1006 (Ont. S.C.J.).
Appendix IF 9 – The case law supports a variable standard of care in products liability negligence that increases in accordance with the danger that the product poses to the ultimate consumer. However, despite the presence of a limited but perceptible shift in the standard of care, Canadian products liability law remains rooted in negligence and courts in Canada have continued to reject a move to strict and absolute liability.
Appendix IF 14 – What is considered a rural premises for the purpose of benefitting from this lower standard of care is a question of fact that should be analyzed in terms of the current condition of the premises, and not in terms of its zoning designation or the mere fact that it is within the bounds of a municipality. The activity must be something in the nature of a sport or activity that, though undertaken gratuitously, one could envision being charged a fee to engage in. Courts have considered whether the fact that a premises is rural or whether the activity on the premises is recreational will affect the appreciation of the standard of care that occupiers owe to users of their property. The Supreme Court in Waldick v. Malcolm, [1991] 2 S.C.R. 456 (S.C.C.) found that, in analyzing whether an occupier had behaved reasonably in the circumstances, the fact that the location was rural should be considered.
Appendix IF 16 – A plaintiff in a defamation action is required to prove three elements, one of which is that the defendant published a defamatory expression – generally referred to as the publication rule. While the publication rule is well settled, the proliferation of online platforms has forced the courts to adapt and modify the traditional publication rule when applied to defamation claims involving the internet – known also as, ‘internet defamation’. In that context, the Supreme Court of Canada (“SCC”) and subsequent jurisprudence has developed a modern, more nuanced approach which on recognizes deliberate – rather than passive – acts as satisfying the first component of the publication rule.
In Pyke v. Tri Gro Enterprises Ltd. (2001), 148 O.A.C. 307, highly offensive odours from composting from the defendant’s mushroom farm constituted nuisance in a rural neighbourhood. Most owners used the land primarily for residential purposes. The legislation did not bar the plaintiffs’ common law nuisance action. Absent special circumstances like those existing in present case, nuisance complaints arising from agricultural operations generally were brought first before Normal Farm Practices Protection Board before bringing action in court. However, the defendant’s operation was not protected as “normal farm practice” because composting initially was not carried out properly and the defendant commenced operations in an area where the nuisance it produced was completed out of character. It fundamentally changed the rural environment the plaintiffs previously enjoyed; the defendant also violated the Environmental Protection Act for period of time.
In Davis v. Sutton, 2017 ONSC 2277, mature cedar trees between the parties’ properties interfered with the defendant’s ability to fence his property for the safety of special needs child. The condition and location of trees required the fence to be 6-8 feet inside lot line and substantially interfering with use and enjoyment of property. After the plaintiff persistently withheld consent to cut or replace the trees, the defendant cut those on his property. The Forestry Act does not prohibit a party from self-help action where boundary tree is a nuisance. The plaintiff co-owner was unable to unreasonably refuse consent to cutting; the action was dismissed.
In Youssef v. Misselbrook, 2020 ONCA 83, as a result of donkeys escaping from a rural property, the plaintiff, a motorcyclist, suffered serious injuries. It was determined that the party responsible for allowing the donkeys to escape created a public nuisance on the highway.
This release features a rewritten and revised Chapter 3, aptly renamed “The Legal Framework”. The updated commentary includes references to academic literature, provincial and territorial codes of conduct, and case law and legislation specific to conflicts of interest. The Chapter also highlights broader conflicts of interest issues in Canada, the U.K., the U.S. and Australia, and in European civil law contexts.
Standard of Review of Administrative Decisions that Infringe Charter Rights
In York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, the Supreme Court addressed two main issues. First, whether the Charter applies to school boards, and second, the standard of review of administrative decisions that infringe Charter rights. On the first issue, the Court found that the Charter applies to school boards.
The underlying facts involved a school principal accessing two teachers’ computers. The teachers received reprimands based on what the principal found on their computers. The union grieved the reprimands. The arbitrator dismissed the grievance. While acknowledging that the teachers had a reasonable expectation of privacy, the arbitrator also found that it was diminished in the circumstances.
The union sought judicial review. The Divisional Court applied a reasonableness review to the arbitrator’s decision. The Court of Appeal concluded that section 8 was engaged, even though it was not argued before the arbitrator, and that as such the standard of correctness applied.
The Supreme Court agreed but was split on the standard review to be applied to the arbitrator’s application of section 8 (or lack thereof). The majority found that correctness applied. The minority applied reasonableness. In reaching their conclusion, the majority held that “whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis – is a constitutional question.” Relying on Vavilov, the majority wrote that these types of constitutional questions require a “a final and determinate answer from the courts.”
In applying the reasonableness standard, the minority find that the privacy rights at issue were heavily dependent on the “specific factual and statutory context.” Also relying on Vavilov, the minority noted that not all constitutional matters will require a final and determinate answer, and that those that do not require such an answer will fall outside the exception to the presumption of reasonableness review. Given the specific factual and statutory circumstances in this matter, this matter did not require a correctness review. As such, the minority concluced that reasonableness should apply.
Appellate Review of Treaty Rights
In Ontario (Attorney General)v. Restoule, 2024 SCC 27, the Supreme Court addressed a number of important issues, including the appropriate standard of appellate review of historic treaties between the Crown and First Nations communities. The Court found that the standard of correctness should continue to apply. In reaching this conclusion, the Court held there were at least two reasons why, as a matter of legal policy, the interpretation of historic treaties should be subject to a correctness review. First, treaty rights are constitutionally protected and engage the honour of the Crown. The Court noted this conclusion was consistent with its decision in Vavilov where it held that the correctness standard applied to constitutional questions including “the scope of Aboriginal and treaty rights under section 35 of the Constitutional Act, 1982.” Second, the “treaty interpretation has significant precedential value because it concerns enduring, multi-generational compacts.”
Notwithstanding the conclusion that the interpretation of an historic treaty right is reviewable for correctness, the Court also found that “the factual findings underpinning that interpretation” are reviewable only for palpable and overriding error. This conclusion is consistent with Court’s decision in Housen.
Standard of Review of Regulations
In Auer v. Auer, 2024 SCC 36 the Supreme court clarified that the standard of review applied to challenges to regulations is, as required by Vavilov, reasonableness. In reaching this conclusion, the Supreme Court departed, in part, from its previous holding in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64 where the Court had held that regulations “must be “irrelevant”, “extraneous” or “completely unrelated” to the statutory purpose to be found to be ultra vires on the basis of inconsistency with statutory purpose. In departing from Katz, the Court re-iterated that Vavilov provided a comprehensive approach to judicial review, that it established a presumption of reasonableness review, that there was no exception to the presumption of reasonableness in this case, that a “robust reasonableness review is sufficient to ensure that statutory delegates act within the scope of their lawful authority” and that all of these considerations lead to the conclusion that “Vavilov’s robust reasonableness standard is the default standard when reviewing the reasonableness of subordinate legislation.”
TransAlta Generation Partnership v. Alberta, 2024 SCC 37 is the companion case to Auer v. Auer. At issue in TransAlta was the standard of review of discriminatory regulations. Specifically, the Court was asked to address the question if whether the 2017 Alberta Linear Property Assessment Minister’s Guidelines (2018) issued by the Minister of Municipal Affairs under Municipal Government Act, R.S.A. 2000, c. M-26 were ultra vires the Minister. The Linear Guidelines excluded coal-fired electricity generation facilities scheduled to be phased out by 2030 from being able to claim an accelerated depreciation of value of these facilities for municipal taxation purposes.
The Court concluded that the standard of review is reasonableness, as required by Vavilov. In applying the reasonableness standard, the Court held that “reviewing the vires of subordinate legislation is fundamentally an exercise of statutory interpretation to ensure that the delegate has acted within the scope of their lawful authority under the enabling statute.” In this case, the Court concluded that that the Linear Guidelines were discriminatory (in administrative sense) but that the discrimination at issue was statutorily authorized. As such, the Court also concluded that the Linear Guidelines were consistent with the purposes of the MGA.
Chapter 26 – 26:20 Decision and Reasons – Costs – In a 2024 case the Ontario Law Society Tribunal Hearing Division significantly reduced the Law Society’s claim for costs after a 21-day hearing in which the Law Society made 61 allegations of professional misconduct but proved only nine of them. The Respondent, a licensed paralegal, was found guilty of breaching her duty of integrity and her licence was revoked. The Hearing Division found that the eight additional allegations that were established were not necessary to the decision on penalty and that the Respondent should not be required to pay the costs associated with them, as the Law Society’s decision to proceed with them was inefficient considering the high likelihood of success on the breach if integrity allegations. The Hearing Division held that a licensee should not be responsible for unnecessary costs. The costs award of $10,000 payable over five years was also informed by the Respondent’s limited income.
Testamentary Document – Legal Effect of Probate – Binding of 3rd Parties – Almost two years after the issuance of the Certificate of Appointment of Estate Trustee with a Will (CAETW), certain beneficiaries initiated a negligence action against the solicitor who drafted the deceased’s will for negligence in failing to give effect to the latter’s intentions in the will. Another two and a half years later, the plaintiffs also filed an application for directions seeking a declaration that the intestacy provisions under the Succession Law Reform Act (Ontario) governed the distribution of the residue of the deceased’s estate. The application was dismissed. In coming to its decision, the court provided a number of observations regarding the legal effect of probate, saying at paras. 17 et seq.:
17 Probate is the process by which a will’s validity is determined. When executors named in the will apply for probate, they must establish that (1) the testator satisfied the statutory age requirement to make a will; (2) the will was executed in accordance with the statutory requirements and has not been revoked; (3) the testator knew and understood the contents; (4) the will was not affected by mistake; and (5) the testator had testamentary capacity. 18 The Court’s jurisdiction in matters of probate is inquisitorial. The court’s function and obligation are to ascertain and pronounce which documents constitute the testator’s last will. The granting of probate does not bind only the parties to the proceeding; unless and until probate is set aside, it operates in rem and can affect the rights of third parties. 19 If the application is not contested and the will appears in good order, some of the matters required to be proved will be presumed. However, if probate is contested, those opposing it may argue that the will fails to meet one or more of the required conditions. A will cannot be probated if the testator did not know and understand its contents. In cases where probate is challenged on the grounds that the testator did not know or understand the will’s contents, the propounders of the will bear the burden of proving that the testator knew and approved of the contents at the time it was executed. 20 When probate is granted, the court certifies that the specific writings constitute the deceased’s will and that the individuals named as estate trustees have the authority to act on behalf of the testator’s estate. 21 Subject to the remedies of revocation and rectification, a grant of probate is conclusive regarding both the appointment of the grantee as executor and the validity and contents of the will. This conclusiveness means that unless the grant is revoked, no one can challenge the identity of the executor the testator’s capacity, or assert that the will was forged, as such actions would contravene the seal of the court. 22 Admitting documents to probate as testamentary documents does not prevent the court from construing them to determine their true effect. If a question arises regarding the meaning of a will, the superior court takes the will as probated and interprets it accordingly. [footnotes omitted]
The court found that the negligence action was a collateral attack on the CAETW. The plaintiffs were directly challenging whether the testator knew and understood the contents of the will. To succeed in this negligence action, they had to establish that the deceased’s lawyer negligently failed to give effect to his intentions when he drafted the will. However, such a finding would contradict the grant of probate, which confirmed the testator’s knowledge and understanding of the contents of the will: Cooke Family Trust et al v. Dioguardi et al, 2025 ONSC 370, 2025 CarswellOnt 633 (Ont. S.C.J.).
Competence of Estate Trustee – Interim Removal and Replacement – The respondent was removed as the executrix and trustee of her father’s estate on an interim basis pending the earlier of the outcome of the applicants’ motion to remove her permanently. She was replaced by the applicant for the interim period. The applicant had been frustrated by the slow pace of the administration and, inter alia, by the estate trustee’s failure to comply with court orders. The respondent requested an adjournment or deferral of the proposed motion because of her ill-health, saying her recovery required time away from her duties as estate trustee. Ordering the interim removal, the court noted at para. 34 that there was no specific rule or statute authorizing the court to remove an estate trustee and appoint a caretaker on an interim basis. However, it stated that it could not see how it could “leave the ship of the estate without a captain” while reporting remained outstanding under a court order and, most importantly, while the major asset of the estate, a farm property, was for sale. It observed that managing the sale process for the farm would require more than the estate’s lawyer at the helm. The estate trustee must be available to manage the process, communicate with the other beneficiaries and deal with offers. Given this, the respondent’s submission that she needed time away from her duties created a situation of urgent risk to the welfare of the beneficiaries: Panchyshyn v. Pietron, 2025 ONSC 2324, 2025 CarswellOnt 5405 (Ont. S.C.J.).
Joint Tenancy – Gift – Severance – Right of Survivorship – A son sought an order to sell a family farm and an order that the sale proceeds be divided on an unequal basis that would see him receive well over 50 per cent of the monies realized on the sale. The land in question in the litigation was originally owned by his parents. In 2008, the parents had added the son as a joint tenant to the title without consideration. The parents maintain that they did this due to an undocumented understanding with the son that:
The son would continue to assist them with their active farming operation on the Farmland on a full-time basis;
They would continue with their farming operation on the Farmland “until they were no longer able”; and
They wouId continue to live in their house on the Farmland “until they passed away“
The relationship between the parents and the son broke down and the parents served the son with a notice of intention to sever the joint tenancy of the farmland. The son took no action in opposition to the notice. The court held that the son had no exercisable rights in connection to the farmland prior to the deaths of the parents. In coming to this conclusion, the court stated that the law recognized that a gift of a right of survivorship after death can exist independently and in the absence of a beneficial right of ownership during the donor’s lifetime. Further, although the gift of the right of survivorship took effect immediately, and such a gift could not be revoked, there was nothing at law precluding the parents from severing the joint tenancy at a later date, which had the effect of terminating the son’s right of survivorship to the interest the parents held in the farmland. The notice of severance had clearly stated that the new title would show each parent as holding an undivided one-third interest in the farmland and the son also having an undivided one-third interest. Although the son has lost his right of survivorship with respect to the parents’ two-thirds share of the farmland, the parents could not revoke the gift of survivorship with respect to the son’s one-third share. The terms of the resulting trust in this case would cause the parents’ two-thirds share of whatever equity remains in the farmland to fall to their estates, while the son’s one-third share of whatever equity remains in the farmland would pass to him after the death of the parents, in accordance with the intention of the parents at the time of the 2008 transfer was completed. The court stressed at para. 79: “To be clear, the Parents are free to enjoy the Farmland as they see fit during their lifetimes, which can include developing it, registering a mortgage against it or otherwise encumbering it without regard to the equity that may remain after their deaths.” The court went on to add that if its conclusion that the son has no exercisable rights in connection to the farmland prior to the deaths of the parents was incorrect, it would still deny his application for partition and sale of the farmland. The court cited Siwak v. Siwak, 2019 MBCA 60, 2019 CarswellMan 435 (Man. C.A.), which stated that although s. 19(1) of The Law of Property Act, C.C.S.M., c. L90 (the “LPA”), gave a joint tenant or tenants in common a prima facie right to apply for an order of partition and sale, there are circumstances where a judge can exercise discretion to refuse such a request. These were outlined at para. 95, in that judgment. The court found that the facts in the case before it brought it within the principles found in Siwak. The son had not come before the court with clean hands, given the uncontradicted evidence that he had drained the accounts of the farming operation, sold farm assets and confiscated farm equipment belonging to the parents without offering any kind of accounting or compensation: Berry v. Berry et al., 2025 MBKB 32, 2025 CarswellMan 74 (Man. K.B.).
Marriage-like relationship – Meaning of “Lived with” and “Cohabitation” – Spouses not Sharing Same Residence – In this case, the court noted that the concept of living with another person is by necessity “‘susceptible to some factual fluidity to take account of the complexities of mode ing employment and education needs and geography’: Jones v. Davidson, 2022 BCCA 31 at para. 17”. Cohabitation was not synonymous with co-residence. Two people can cohabit even if they do not live under the same roof: Jones v. Davidson, 2022 BCCA 31, 2022 CarswellBC 213 (B.C. C.A.), at para. 17, citing Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, 2004 CarswellNat 3695, 2004 CarswellNat 3696 (S.C.C.), at para. 42. The words “lived with” therefore encompass relationships where the couple do not share the same residence. Maintaining separate residences does not preclude a finding of a marriage-like relationship: see e.g. Matossian Estate v. Clark Estate, 2024 BCSC 2214, 2024 CarswellBC 3613 (B.C. S.C.): Hill v. Dhanda, 2025 BCSC 333, 2025 CarswellBC 491 (B.C. S.C.).
Spousal Support – Whether Obligation Survives Death of of Payor – On the eve of a 2003 support-and-property trial, the parties agreed to spousal support of $9,000 per month “until further order”, reviewable at the option of either party on the payor’s retirement. The spousal support agreement was incorporated into a corollary relief order dated January 8, 2003 which stated:
…[t]he Defendant will pay spousal support to the Plaintiff of $9,000.00 per month payable on the 1st day of the month following the granting of the Divorce Judgment and payable on the 1st day of each month thereafter, until further Order of the Court. …on the Defendant’s retirement from Deloitte & Touche LLP, the quantum of spousal support payable by the Defendant to the Plaintiff may be reviewed at the option of either party.
The payor twice applied, unsuccessfully, for a review. He died in 2023. His second wife took the position here that spousal support was no longer payable. The payor’s first spouse maintained that the spousal support obligation survived the payor’s death. The court found that with the spousal-support order neither expressly addressing the impact of the payor’s death nor doing so indirectly (e.g. via directing support for “the life of the recipient” or making the support obligation binding on the payor’s estate), the spousal support obligation ended with the payor’s death. In applying the principles found in the jurisprudence on this matter, the court stated at paras. 72 et seq.:
72 Is the 2003 divorce judgment sufficient to require spousal support (or some equivaalent) on or after the payor’s death? 73 I restate the judgment’s key provision: …the [payor] will pay spousal support to the [first spouse] of $9,000.00 per month …until further Order of the Court. 74 The judgment does not:
set the order’s duration as recipient’s lifetime or any other “fixed duration” yardstick possibly exceeding the payor’s lifetime i.e. other than “until further order”;
refer expressly to the payor’s death or its impact, let alone provide that support will survive;
state that the support obligation binds or charges or will bind or charge the payor’s estate;
provide for security of any form for spousal support payable after the payor’s death;
provide a replacement for spousal support on or after the payor’s death e.g. life insurance on the payor’s life in favour of the recipient
direct or reflect a relinquishment of the recipient’s claims against the payor other than enforcement of spousal support against the payor or his or her estate; or
otherwise state or signal that support (or equivalent) will continue or be payable in any respect after the payor’s death.
75 There is no underlying settlement agreement here, let alone one providing for any of these elements lacking in the judgment or otherwise reflecting an estate-binding intention e.g. an inurement clause [.] 76 The reference to “until further Order of the Court” does not qualify as a “clear, specific, and unequivocal” direction that the ordered support would continue after the payor’s death.
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.
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:
has the executor been reasonably transparent about the existence of their claim?
whether the claim has been quantified by the executor, and the size of their asserted claim if it has been quantified?
if not quantified, is there a reasonable explanation for the executor not doing so?
the passage of time, and the existence of any delay?
whether the other beneficiaries oppose the executor continuing despite the executor’s claim?
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?
whether the asserted pre-death loan endangers the administration of the estate into the future? and
whether the executor’s conduct with respect to the asserted pre-death loan hampers the efficient administration of the estate?
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.
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.
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.
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.
Party-to-Party Costs – The Courts of Justice Act – Costs to be Fixed or Assessed – Introduction – In judgments rendered in the Alberta Court of King’s Bench the court awarded damages of $165,166,431 with prejudgment interest to the plaintiff against the defendants. The parties were unable to agree on costs. After adjusting its claim to acknowledge the legitimacy of points made by the defendants, the plaintiff sought costs in the amount of $4,801,339.41. In this case the court reviewed the meaning of “reasonable and proper costs”: Remington Development Corporation v. Canadian Pacific Railway Company, 2023 ABKB 591 (Alta. K.B.)
Party-to-Party Costs – The Courts of Justice Act – Costs to be Fixed or Assessed –The Reasonable Expectations of the Parties – Proportionality – The main focus of the jury trial was whether the defendant was liable to the plaintiff under the Occupier’s Liability Act (Ont.). Of particular significance as it related to this matter was the apportionment of liability against the plaintiff. An award of costs that exceeds the amount of damages assessed by the jury might be seen by some as disproportionate. While an award of costs must be proportionate it must also be seen to be reasonable and fair. It must also reflect an amount that the losing party might reasonably have anticipated paying in the event of non-success at trial: Lawless v. Joanovits, 2024 ONSC 1561 (Ont. S.C.J.)
Party-to-Party Costs – Several Plaintiffs – Class actions – Legal Fees –This appeal in the Court of Appeal for Ontario involved the fees to be paid to class counsel following the settlement of a class action concerning unpaid overtime work. Class counsel was a consortium of three law firms. The motion judge awarded class counsel $25 million in fees for obtaining a $153 million settlement over the course of 15 years. After other deductions, this left $106 million to be allocated to the class. The appellant class counsel was requesting a $19 million increase for a total of $44 million in class counsel fees. This amount reduced the class portion of the settlement to $86 million for 31,000 class members. The appeal was dismissed: Fresco v. Canadian Imperial Bank of Commerce, 2024 ONCA 628 (Ont. C.A.).
Party-to-Party Costs – Dismissal and Discontinuance of Actions – Where Plaintiff Discontinues Action – The province of Ontario issued exploration permits allowing the defendant Q Inc., one of the two companies owned by the defendant prospector M, to conduct mining exploration activities in an area near the plaintiff’s reserve. The plaintiff obtained an interim injunction prohibiting M and two companies from engaging in any exploration activities in the area pending determination of an application for interlocutory relief. The interim injunction was later extended as against the two companies, but not as against M. M who was acting on behalf of himself and the companies claimed costs on a substantial indemnity basis the amount of $115,598.60. The court on that application found that parties would bear their own costs on the motion, given the divided success in the matter. The plaintiff sought a new interlocutor injunction against M and his companies. The judge on that motion denied the plaintiff’s requested adjournment and the plaintiff withdrew its application. M sought costs on a substantial indemnity basis in the amount of $44,383,50 plus disbursements. The judge reviewed the issue of costs when an action has been discontinued as well as costs for a self-represented litigant: Ginoogaming First Nation v. HMTK, 2024 A.C.W.S. 1561 (Ont. S.C.J.).
Party-to-Party Costs – Costs Payable by Solicitor – Conduct of Solicitor – The Ontario Superior Court judge had declared a mistrial. The court was now dealing with whether or not the lawyer for the plaintiff should be held personally liable for costs. The mistrial was declared largely as a result of the non-disclosure of a conflict of interest involving the lawyer for the plaintiff, her husband, her husband’s company, and the retainer by her husband’s company of two doctors who prepared medical legal reports for the lawyer’s law firm. This was one of those rare and exceptional cases where the conduct of the lawyer required the Court to exercise its responsibility to supervise the conduct of a lawyer where the conduct was of such a nature that it both frustrated and interfered with the administration of justice. The mistrial was entirely avoidable. Regrettably, in this case, the judge stated that the lawyer’s actions were a complete misunderstanding of what the word candour means. Candour required disclosure of the conflict to the client, to the defendant of the court. Candour required full disclosure of the inflated cost of the doctor’s invoice to the client, the defendants and to the court. None of this happened. This was the rare case where the court exercised its discretion to award costs of the mistrial against the lawyer. To do otherwise would be to countenance such conduct and to potentially have the client pay the mistrial costs which would be patently unfair to the client where his conduct in no way caused the mistrial. Ashrafian v. Kavarana, 2024 ONSC 240; 2024 A.C.W.S. 2060 (Ont. S.C.J.)
Security for Costs – Appeals – General – This decision from the Ontario Court of Appeal is in respect to an appeal from the decision of the Superior Court of Justice reported at 2024 ONSC 1964. The appellant M, appeals from the decision of the judge of the Superior Court of Justice who granted summary judgement in favour of the respondent B, who was M’s former lawyer. Judgement was granted in the sum of $2,850,500 on account of outstanding legal fees. The respondent B applied to the Ontario Court of Appeal for security for costs and security for judgement against appellant M. As the Court of Appeal noted from earlier appeal decisions, the ordering of security for costs is discretionary; a two-step reasoning process is involved. The first question is whether the requirements pf rile 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. Security for judgement is an “extraordinary remedy”. Trying to get money that rests on reserve comes very close, if not crosses over the line into what the Court of Appeal had earlier said cannot be done by virtue of section 89 of the Indian Act. In total, the appellant M was ordered to pay into court security for costs in the total amount of $115,026.90. Bogue v. Miracle, 2024 ONCA 643 (Ont. C.A.)
In Sickel Estate v. Gordy, 2008 SKCA 100, there was a fatal traffic accident caused by employee of the company contracted to provide food service to carnival. The accident occurred while the employee driving truck owned by one of her employer’s partners in convoy was moving to the next carnival location. Since the accident occurred while the employee was performing her regular employment duties, the employer was held to be vicariously accountable.
In John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2020 NLCA 27, the plaintiffs were victims of abuse while resident at orphanage operated by Christian Brothers. They unsuccessfully tried claiming that the Catholic Church was vicariously liable for non-feasance of orphanage’s parish priest in preventing abuses, but no evidence was established. On appeal, the Court of Appeal upheld the trial judge’s determination respecting the Archdiocese’s vicarious liability for the parish priest’s non-feasance but overturned the trial judge’s determination respecting the Archdiocese’s vicarious liability for the Christian Brother’s sexual abuse of appellants when children in the orphanage supervised by the Christian Brothers.
A revised and updated Chapter 20: Motions to Disqualify Counsel for Conflicts of Interest. The updated commentary and case law includes 48 new, recent lawyer disqualification decisions. In addition, Appendix F:22. Model Factum in Support of or in Opposition to a Motion to Disqualify Counsel of Conflicts of Interest.
Year in Review – The Year in Review discusses some of the notable trends and developments in civil litigation in Manitoba from October 2023 to December 31, 2024 with a review of Practice Directions issued by the Court of King’s Bench and Court of Appeal in 2024 and commentary on notable decisions of the Manitoba Courts dealing with various civil procedure issues including: Dismissal for Delay; Costs Awards and Solicitor-Client Privilege.
Manitoba King’s Bench Rules – Rule 19.08 – Default Proceedings-Setting Aside – Generally – The factors generally considered by the Court in a motion to set aside default are: whether the defendant had an ongoing intention to defend; the defendant’s explanation for why defence was not filed; whether the failure to file a defence was willful; whether the motion to set aside was brought with dispatch; and whether there was undue prejudice to the plaintiff. While proof of a meritorious defence is not a pre-condition to set aside the noting of default, it is a relevant factor for the Court to consider in exercising its discretion. Ultimately, the factors into consideration should not be considered in isolation but should be weighed together in the Court’s decision. While recognizing that the circumstances of every case must be analysed, the onus is generally considered to be low when it comes to setting aside default. Schaworski v. Unrau, 2024 MBKB 150, 2024 CarswellMan 334 (man. K.B.), per Patterson Associate J.
Manitoba King’s Bench Rules – Rule 24.01 Dismissal for Delay – Significant Prejudice and Delay – Inordinate and Inexcusable Delay – When assessing delay, the Court must determine whether it has been both inordinate and inexcusable. An assessment of whether or not the delay was inordinate may involve consideration of the nature of the issues in the action, the complexity of the issues, the current status of the litigation as compared to a reasonable comparator and the role of each party in the overall delay. If the delay is found to be inordinate, the onus then shifts to the plaintiff to justify the delay (i.e., a consideration of whether the delay can be excusable). If the delay is found to be both inordinate and inexcusable, there is a rebuttable presumption of significant prejudice. Even if the delay is not inordinate and excusable, the Court may still dismiss a claim in a case where significant prejudice has occurred. In exceptional circumstances, the Court may refuse to dismiss the action even where it finds delay and significant prejudice. Forsythe v. Johnson, 2024 MBCA 104 per Spivak, J.A.
Manitoba King’s Bench Rules – Rule 57.01(2) – Costs – Costs Against Successful Party – The Court’s discretion with respect to costs must be exercised in accordance with the principle and the rules governing the exercise of all judicial discretion – it is not to be exercised in a harsh or arbitrary manner. However, the discretion is unfettered and untrammeled and will be governed by the special circumstances of the case. For the Court to award costs to an unsuccessful party, that party must persuade the court that the proceeding contained some special element to justify such an order. Examples include cases where the successful party engaged in misconduct (such as failure to make proper disclosure). However, courts have also granted costs in cases of significant public interest. Polischuk v. The City of Winnipeg, 2024 MBKB 156 per Martin J.
WP:131 – Professional Misconduct (B.C.) Professional misconduct…represents a marked departure from proper professional practice, but is not necessarily associated with moral turpitude or with intentional wrongdoing.
Gregory v. The Law Society of British Columbia, 2024 CarswellBC 3060, 2024 BCCA 350 (B.C. C.A.) Groberman J.A. (Fenlon and Fitch JJ.A. concurring) at para. 65
Model Code of Professional Conduct, as amended April 2024.
National Discipline Standards, Approved by Council October 14, 2023).
Model Rule on Client Identification and Verification (Adopted by the Council of the Federation of Law Societies of Canada, March 20, 2008; amended December 12, 2008; amended October 19, 2018; amended March 14, 2023).
National Requirement (Amended March 12, 2024; in force January 1, 2029).
Chapter 3 – The Canadian Charter of Rights and Freedoms – In an important Charter case, the Ontario Divisional Court upheld a tribunal’s decision finding a physician guilty of professional misconduct for spreading Covid-19 misinformation. The Court held that the tribunal had properly balanced the physician’s freedom of expression with the statutory objective of protecting the public: Trozzi v. College of Physicians and Surgeons of Ontario, 2024 ONSC 6096.
Chapter 6 – Compliance with Statutory Provisions – The Saskatchewan Court of Appeal upheld a decision finding that a provision in a bylaw requiring notice of an AGM to be served by mail was directory rather than mandatory. As a result, the service of the notice of the AGM by email did not invalidate the results of the AGM: Haas v. The Saskatchewan Veterinary Medical Association, 2024 SKCA 110.
Chapter 8 – Procedural Rights at a Disciplinary Hearing – The denial of an adjournment was upheld even though there was concurrent civil litigation addressing the same issues. The Court found that the tribunal had properly balanced potential prejudice to the member with the public interest in completing disciplinary proceedings: Bauhuis v. Association of Professional Engineers and Geoscientists of Alberta, 2024 ABKB 603.
Mutual Wills – Evidence of Agreement – The marriage of the testator and the defendant was a second marriage for both. The defendant and the plaintiff, the deceased’s child from his first marriage, had a difficult relationship. The testator and the defendant had kept their finances separate and had made new wills which made the other the sole beneficiary with gift overs to their respective children in equal shares. After the testator died the defendant made a new will, revoking prior wills, and leaving the residue of her estate to her biological children. The plaintiff brought an action against the defendant to seek variation of the deceased’s will for failure to provide adequate, just and equitable provision for her. She also sought leave to bring an action against the defendant because she changed her will. The plaintiff’s application was dismissed. The court found there was no evidence that the testator and the defendant had intended to bind each other to mutual wills, saying at para. 37:
37 The doctrine of mutual wills requires there to be an agreement between the parties which satisfies the requirements of a binding contract. The agreement must be proven by clear and satisfactory evidence and it must include an agreement not to revoke the wills: Edell v. Sitzer, 55 O.R. (3d) 198 at para.58, 2001 CanLII 27989 (O.N.S.C.); BrynelsenEstate v. Verdeck, 2002 BCCA 187. When two persons agree to make mutual wills, they agree that once the wills are made that no changes may be made by either party, without the other’s consent, and when one person dies, the surviving party cannot change the disposition made in their will. There must be clear and unequivocal evidence of an enforceable agreement between the parties that the survivor cannot change their will after the death of the first person.
43 The decision of Moyerv. Moyer Estate, 2018 BCSC2225, is similar to the circumstances of this case. Justice Crossin sets out the principles of a mutual will agreement: A mutual will agreement imposes an onerous obligation on the surviving testator, who is left unable to deal freely with their property during the remainder of their lifetime and is compelled to dispose of it in a certain way at their death. For this reason, in order for the court to find the existence of an enforceable agreement, there must be clear and unequivocal evidence, including clarity of terms.
Estate Assets – Pets – Establishing Ownership – An estate trustee applied for a declaration that a dog was owned by the deceased at the time of his death and was therefore an asset of the estate. The dig had been taken by the respondent, who had been in an intermittent relationship with the deceased. In granting the application, the court set out the law relating to pet ownership, saying at para. 24 et seq:
24 Dogs are personal property much like other chattels (albeit indivisible), even when purchased during the course of a relationship. The question is one of ownership, not who wants the dog more, who loves the dog more or who would be the best owner.
25 Traditionally, the question of pet ownership focused narrowly on who paid for the animal. More recent cases have taken a broader approach, looking at the relationship between the parties and the dog and considered an non-exclusive list of factors.
26 The Coates decision [Coates v. Dickson, 2021 ONSC 992, 2021 CarswellOnt 1430] contemplates the following factors:
Whether the animal was owned or possessed by one of the people before the relationship began;
Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
The nature of the relationship between people contesting ownership at the time the animal was first acquired;
Who purchases and/or raised the animal;
Who exercised care and control of the animal;
Who bore the burden of the care and comfort of the animal;
Who paid for the expenses related to the animal’s upkeep;
Whether at any point the animal was gifted by the original owner to the other person;
What happened to the animal after the relationship between the litigants changed; and
Any other indicia of ownership or evidence of agreement relevant to who has or should have the ownership of the animal. [footnotes removed]
4:7 General Rule in Estate Litigation: Costs Follow Event – In Joy Estate v. McGrath, 2022 ONCA 119, 2022 CarswellOnt 1457 (Ont. C.A.), Gillese J.A. commented upon the process to be followed where public policy considerations arise:
The jurisprudence is clear: at first instance, when deciding costs in estate litigation, the court must begin by carefully scrutinizing the litigation to determine whether one or more of the public policy considerations applies. If so, as a general principle, the parties’ reasonable costs are to be paid from the testator’s estate. It is worthy of note that this approach is not a balancing of the public policy considerations against the rationale for costs rules that ordinarily apply to civil litigation. Rather, it is a sequential analysis, the first step of which is to determine whether one or more of the public policy considerations apply. If so, generally the parties’ reasonable costs should be payable from the estate. A departure from this general principle requires justification on the part of the court.
4:15 Special Costs – The court will order special costs in exceptional circumstances where the conduct is reprehensible, which encompasses scandalous or outrageous conduct (such as conduct tantamount to fraud or an abuse of process), as well as milder forms of misconduct deserving of reproof or rebuke: Kirouac Esate, 2024 BCSC 1119, 2024 CarswellBC 1847 (B.C. S.C.)
4:24 Solicitor Appointed as Executor/Trustee – In Re Parkinson Estate, 2024 MBCA 52, 2024 CarswellMan 217 (Man. C.A.), the court awarded $110,139.17 in solicitor and client costs against an executor who was a lawyer. The court was highly critical of the executor’s conduct, including a dispute over compensation which the court viewed as being wholly due to the executor seeking an unreasonable level of compensation and then attempting to bolster his position by issuing invoices for unsubstantial legal services when his executor compensation was questioned.
The Applicability of the Duty of Fairness – Appendix 7A – Case Digest – A section has been added to the Appendices in Chapter 7 – 7A:6.10 Mortgage Brokers. The following case digest has been added:
Professions and occupations – Mortgage brokers – Organization and regulation of profession – Financial Services Regulatory Authority issued notice of proposal to revoke license of applicant mortgage broker and principal – Broker filed request for hearing – Broker’s motion for request to be published on website of authority was dismissed – Broker brought application to quash or amend proposal, and challenge transparency guidance regarding authority to take regulatory action against, as mandamus relief was not available – Portions of application seeking declaration with respect to publication of proposal were not struck, leaving that issue open to Divisional Court – Broker brought motion to vary order, and to restore application regarding relief sought – Motion dismissed – Trial judge correctly held that it was plain and obvious that application to strike or amend proposal could no succeed as it was premature – Tribunal hearing provided adequate alternative remedy, and broker would get full and fair hearing de novo to resolve any alleged procedural fairness issues – Exceptional circumstances bring rule of law into disrepute, going beyond breaching procedural fairness or acting without jurisdiction, were not present – Balance of judicial review application dismissed – Decisions at issue were not statutory powers of decision and were not amenable to judicial review – To be subject to judicial review decision must affect legal rights or obligations – Although applicants had interest in their reputation, publication of allegations by regulator did not give rise to right to judicial review: Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Office), 2024 CarswellOnt 12109, 2024 ONSC 4464 (Ont. S.C.J. (Div. Ct.)).
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