This release introduces a new Chapter 4 — Conflicts of Interest in Corporate and Commercial Practice, which replaces the previous Chapter 4. The chapter has been fully updated, featuring new commentary, case law and legislative developments and an expanded bibliography.
Highlights
Analyzing conflicts of interest in corporate and commercial practice is inherently challenging due to the various kinds of business organizations, the number of stakeholders they have, whether the business organization is a person in law, the various roles and interests of the instructing persons, who the client is at the time of the file opening, who is actually or perceived to be owed the duties of loyalty, candour and confidentiality, whether the interests of the various stakeholders diverge during the course of the matter, identifying third parties over the course of the matter, the number of “near clients” with an interest in the outcome of the transaction, the impact of agreed upon Outside Counsel Guidelines, and the sophistication of the client and involvement of in-house counsel.
…
Given the range of business organizations and their various stakeholders, lawyers and law firms must take great care when opening matters, determining or defining who the client is, knowing which names to search when clearing conflicts of interest (including legal names, brand names, “doing business as” names, partner names, trustee names and names of affiliates and subsidiaries), identifying the instructing parties on the matter and their role within the business organization, and defining the mandate of the matter so that is has a clear and discernable end. In addition, lawyers and law firms should record all relevant names in the conflicts database that relate and are friendly to the client to ensure that future matters are not opened that turn out to be directly or indirectly adverse to the client or one of its many stakeholders.
This release features a new View from the Top: Administrative Law in the Supreme Court of Canada 2025. In addition, updates have been made to the case law and commentary in the following chapters: 1 (Jurisdiction to Grant Prerogative Remedies, Declarations and Injunctions), 2 (The Application for Judicial Review), 3 (Discretionary Bars to Judicial Review), 4 (Parties to a Judicial Review Proceeding), 5 (Commencement of Judicial Review Proceedings), 6 (Interlocutory Proceedings, Perfection and Orders), 7 (The Duty of Fairness: its Scope and Content), and Appendix G (Ontario Statutes, Rules, Forms and Practice Directions).
Highlights – Note of Developments in Administrative Law in 2025
Habeas Corpus Dorsey v. Canada (Attorney General), 2025 SCC 38, is a significant decision, in particular insofar as it broadens the scope of habeas corpus. In Dorsey, a majority of the Supreme Court confirmed that inmates can use habeas corpus to challenge refusals to move them to less restrictive conditions. The majority found that denial of a transfer to a lower-security institution can amount to a “deprivation of liberty”, even if the inmate’s situation has not worsened and even if the inmate has not previously experienced the less restrictive conditions. The issue, according to Moreau J. is simply whether the refusal to reclassify an inmate effectively keeps that inmate in a more restrictive environment.
The majority emphasized that prisoners retain residual liberty, and that security classification directly affects the degree of freedom inmates experience. The Court’s decision focused on whether conditions are more restrictive than they lawfully should be as opposed to whether there has been a clear change in status.
Justiciability, Jurisdiction and Limits of Judicial Oversight In Canada (Prime Minister) v. Hameed, 2025 FCA 118, the Federal Court of Appeal held that the Federal Court lacked jurisdiction to hear an application for judicial review seeking to compel the Prime Minister and the Minister of Justice to fill judicial vacancies. In reaching this conclusion, the Federal Court of Appeal found that when advising on judicial appointments, neither the Prime Minister, nor the Minister of Justice, was a “federal board, commission, or tribunal” under the Federal Courts Act and that there was no statutory grant of jurisdiction over their roles.
The Federal Court of Appeal also emphasized the distinction between political and legal disputes. Without concluding that there was a constitutional convention requiring the government to fill judicial vacancies, the Federal Court of Appeal nonetheless concluded that breaches of conventions should be remedied through political, as opposed to legal, means.
Vavilov Extended In Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency), 2025 FCA 147 the Federal Court of Appeal applied the Vavilov framework to the Canadian Food Inspection Agency’s “Stamping-Out Policy”. At issue was an order, under the Stamping-Out Policy, by the Agency to cull an entire flock of Ostriches in response to an outbreak of H5N1 avian flu on an ostrich farm in British Columbia.
The applicant challenged the application of the Stamping-Out Policy. The Federal Court of Appeal found that the approach to reviewing policy decisions prior to Vavilov had been overtaken by Vavilov and that there was no reason why “the reasonableness review of a discretionary policy decision should not be framed in the manner set out in Vavilov.”
In Rogers v. Director of Maintenance Enforcement Program, 2025 YKCA 12 at the Yukon Court of Appeal extended the application of Vavilov when it found that the failure to enact regulations that are necessary for a statutory provision to be given effect is typically justiciable and that the applicable standard of review is reasonableness.
The Court of Appeal held that where the failure to enact regulations “undermines … the purpose of the legislation” and “frustrates … the will of the legislature, the decision is unreasonable.” The Court of Appeal noted that Vavilov was intended to “apply broadly to the review of executive regulation-making action”, and that as such, “Vavilov must also apply to the review of executive regulation-making inaction.”
Appendix IF. Issues in Focus IF:10. Should a lawyer be disqualified from representing a party where that lawyer engages a paralegal who has had direct knowledge and access to the opposing party’s privileged information? (Updated May 2025)
This release includes updates to Chapter 2 (Party-and-Party Costs).
Highlights
Party-and-Party Costs–Offer to Settle–Calderbank Letter–The defendants in this case was a law firm which was successful in their special chambers application for summary dismissal of the plaintiff’s claim against them. These defendants requested solicitor and own client, full-indemnity costs. The plaintiff suggested each party should bear their own costs. The allegations against the lawyer defendants included professional negligence and breach of fiduciary duty or conspiracy to employ fraudulent and deceitful means to cause the plaintiff to enter into an improvident share purchase agreement. The remedy sought by the plaintiff including judgment for $3 million for losses caused to the plaintiff and $100,000 for punitive and exemplary damages. The judge found that there was no evidence to show merit to the plaintiff’s claims in negligence, breach of fiduciary duty, or conspiracy against the lawyer defendants. Further, there was no evidence to merit aggravated, punitive or exemplary damages. Finally the judge found that the claims advanced were barred by the passage of time. The judge reviewed the bills of costs and considered the Rules and the case law related to costs generally and to solicitor and client costs specifically where there has been unproven allegations of fraud and dishonesty. The judge also took into consideration the Calderbank offer made prior to the special chambers application but after the pleadings were closed, documents and affidavits were exchanged, and the parties were questioned. The judge found that there was no reasonable basis on which to commence or continue this litigation. The judge concluded that solicitor and client full-indemnity costs were appropriate. Proportionality was not dependent on ability to pay. The judge awarded to the lawyer defendants the amount of $42,499.87 assessed on a solicitor and own client full-indemnity basis. Salame v. Chimayt, 2025 ABKB 205 (Alta. K.B.).
Party-and-Party Costs–Special Provisions as to Costs–Solicitor-and-Client Costs/Substantial Indemnity Costs–This was an application brought by the Administrator ad litem RH to recover legal costs following a successful appeal inter alia, temporarily staying their lawsuit pending a decision whether to certify a related putative class action. The applicants were seeking solicitor and client costs for that stay application. The related proposed class action was in relation to the catastrophic Humboldt Bronco bus crash. The respondents argued that an order for solicitor and client costs was not warranted in the circumstances. The judge found that solicitor and client costs were not warranted. The judge fixed the costs of the application at $7500. The judge also found that counsel for the respondents was not personally liable for paying the costs of the application. In Saskatchewan, solicitor and client costs are exclusively reserved for exceptional circumstances and are rarely awarded. In deciding what costs should be awarded the application judge considered certain principles set out in the decision. The court then addressed whether costs should be awarded against counsel personally. The court reviewed Rule 11-24 of The King’s Bench Rules and noted that Orders of this kind are warranted only if a court is satisfied that “a lawyer for a party has caused costs to be incurred improperly or without reasonable cause or has caused costs to be wasted through delay, neglect or some other fault. Like solicitor and client costs, situations where a lawyer is found personally liable to pay a costs award order against his or her client should be exceptional and rare. Thus, before a Judge should order a lawyer personally responsible for legal costs incurred by the opposing party, there must be evidence that their conduct amounted to a “serious dereliction of duty or behaviour”. The evidence must be clear and permit a judge to find “as a fact, that there had been highly improper conduct” on the part of the lawyer against whom such a costs order is sought. The judge therefore did not award costs against counsel personally. Wassermann v. Herold (Administrator Ad Litem), 2025 SKKB 40 (Sask. K.B.).
This release features new and updated case law and commentary to Chapter 3 – The Canadian Charter of Rights and Freedoms, Chapter 4 – Jurisdiction of the Tribunal Over the Professional, Chapter 5 – The Right of Professional Organizations to Make Rules and Regulations, Chapter 7 – The Applicability of the Duty of Fairness, Chapter 9 – Bias, Chapter 11 – Evidentiary Issues.
Highlights
New section 4:7–Conduct Not Part of Practice of Profession – On occasion questions arise as to whether an investigated member’s activities are part of the regulated profession and subject to applicable standards of practice. In Al-Hallak v Alberta College of Pharmacy, 2025 ABCA 419, certain allegations of unprofessional conduct relating to a pharmacist providing cosmetic services fell outside the practice of pharmacy. The Court of Appeal overturned this aspect of the decision finding that it was an error to exclude from the definition of the practice of pharmacy procedures that were intended to enhance a person’s appearance.
New section 4:8–Statutory Immunity – The issue of statutory immunity provided to regulatory Colleges and officials is addressed in Chapter 3, S. 11:15. However, on occasion issues arise with respect to whether professionals have statutory immunity from the College complaint process . . . . In response to allegations that regulatory colleges were engaged in “regulatory scope creep” and were restricting freedom of expression by disciplining professionals for off-duty conduct, the Alberta Legislature passed Bill 13, Regulated Professions Neutrality Act, 2025. The Bill restricts the ability of regulatory colleges to impose sanctions for expressive conduct that occurs outside the practice of the regulated profession subject to enumerated exceptions. The Bill has been widely described as the “Jordan Peterson law” referring to the controversial discipline case concerning the Ontario psychologist.
Release No. 3, April 2026
What’s New in this Update
This release features new and updated case law and commentary to Chapter 13 – Professional Misconduct, Chapter 14 – Sentencing, Chapter 15 – Appeals and Judicial Review, Chapter 16 – Admission to the Professions and Chapter 18 – Hospital Privileges for Physicians.
Highlights
Chapter 13–Professional Misconduct–§ 13.2. Test for Conduct Deserving of Sanction – The British Columbia Court of Appeal has ruled that in cases where an uninvestigated member relies on a Charter right to defend allegations of unprofessional conduct, the test in the context of Law Society proceedings must be broadened to be:
The test is whether the facts as made out disclose a marked departure from that conduct the Law Society expects of its members, having properly balanced the relevant Charter value with the Law Society’s public mandate and objectives; if so, it is professional misconduct.
Chapter 16–Admission to the Professions–§16:1. Generally – In one case applicants sued for breach of contract when the Royal College of Physicians and Surgeons of Canada adjusted scores downward such that the applicants no longer passed the entrance examination. The claim was dismissed at the trial level but the Court of Appeal allowed the appeal and remitted the matter to a new trial. The Court of Appeal concluded that the reasons of the trial judge were insufficient to explain her conclusion that it was psychometrically sound to adjust the results of the examination. The Court also concluded that the trial judge’s reasons did not satisfactorily address the applicants’ claim for breach of contract.
This release features updates to the case law and commentary in Chapter 22: Passing Off.
Highlights
Chapter 22–Passing Off–Nature of Cause of Action–‘Passing off’ is an economic or proprietary tort which generally arises between market actors. The basic thrust of the tort is to control the circumstances in which one actor can benefit by identifying its products or services with that of another and by harming that other actor by such a manoeuvre. Accordingly, it protects the goodwill earned or created by one market actor from its appropriation by another. As such, it draws upon a broader notion of property rights and extends protection to not only the products of services of another, but also to its marketing power and potential, as well as its market reputation.
Chapter 22–Passing Off–Misrepresentation–The second component of the tort of passing off is a misrepresentation that creates confusion in the public. This may be wilful and will also constitute deceit. However, it need not be so. Today, the doctrine of passing off encompasses innocent misrepresentations; this includes negligent or careless misrepresentations. Proof of the defendant’s intention to deceive is strong evidence of an intent to improperly affect the plaintiff’s trade. Also, where a defendant continues to use an allegedly deceptive description after the danger of using it has been drawn to their attention, an inference of fraud is raised.
Chapter 22–Passing Off–Injunctions–The availability of an interim or permanent injunction in respect of passing off is governed by the ordinary principles applicable to injunctive relief. However, on an application for an interim injunction where the granting of the injunction would most likely finally dispose of the action, the court is justified in considering the merits of the case. It can determine whether there is a prima facie case, not merely whether there is a substantial issue to be tried. If the applicant establishes a prima facie case, the questions of irreparable harm and balance of convenience must then be addressed.
Release No. 3, April 2026
What’s New in This Release
This release features updates to the case law and commentary in Chapters 2, 15, 16, 18, 19, 30, and 31.
Highlights
Chapter 15. Malicious Prosecution – Plaintiff police officer brings claim against police/prosecution in respect of a host of charges based on intercepted communications between plaintiff and 3rd parties; wiretap based on police mischaracterizing informants; as a result, charges ultimately withdrawn but before wiretap and communications subject to Charter challenge at plaintiff’s criminal trial; trial judge not wrong to rely on the intercepted communication to understand basis of prosecution against plaintiff; intercepted communications stood as strong challenge to plaintiff’s claim of factual innocence in civil action and as basis for establishing reasonable and probably grounds; decision upheld on appeal: McCormack v. Evans, 2025 ONCA 767.
Chapter 16. Negligence (General) – Appeal of dismissal of claim that alleged a duty of care owed by Attorney General and others in respect of their failure to properly administer regulatory oversight when issuing firearm licences, third party had shot and killed plaintiff’s family member; on appeal, motion judge erred in concluding no duty owed by defendants; for the purposes of establishing proximity, the court can consider a combination of interactions and statutory duties that may give rise to (could be recognized) a private law duty of care for public entity; this requires there being something about the individual claiming a private duty (in relation to the government action) that is more specific or tailored than all members of the public; current state of claim required additional facts that spoke to the whether government knew third party a risk to individuals like plaintiff; leave to amend should be granted: Sienna v. Duckett, 2025 ONCA 867.
This release features updates to the case law and commentary in Chapter 21. Occupiers’ Liability.
Highlights
CHAPTER 21. OCCUPIERS’ LIABILITY-INVITEE An invitee is a person who comes on the occupier’s premises at the invitation of the occupier on a matter of common interest. The invitation may be express or implied. In the absence of an express invitation, however, the courts are reluctant to extend the doctrine of implied invitation. An implied invitation is not shown by mere tolerance of a trespass or passive acquiescence in permitting a person upon the premises or by use without the owner’s knowledge. However, where the use has continued for so long as to lead the public to think that the owner invited such use, liability has been held to arise.
CHAPTER 21. OCCUPIERS’ LIABILITY-LICENSEES A licensee is a person who enters on premises with the permission of the occupier on a matter concerning the licensee and in which the occupier has no interest. Although the occupier has not invited the licensee onto the premises and has no interest in them being there, the occupier has expressly permitted the licensee to use the premises or knows about their presence on the premises. Furthermore, the occupier has either given permission to remain on the premises or has done nothing to stop their further presence there. Thus, the main distinction between an invitee and a licensee is that an invitor and invitee have a common interest, but the licensor and licensee do not.
CHAPTER 21. OCCUPIERS’ LIABILITY-ELEMENTS OF CAUSE OF ACTION For the plaintiff to succeed in an action based on occupiers’ liability, the following four elements must be established – that the defendant was an occupier of the premises on which the accident occurred; that the defendant breached a duty of care owed to the plaintiff; that the defendant’s breach caused the plaintiff’s injury; and that the plaintiff suffered damage. This applies whether the action is brought in New Brunswick, Newfoundland and Labrador, Saskatchewan, and The Territories (Yukon, Northwest Territories, and Nunavut) within a common law approach to occupiers’ liability or in Alberta, British Columbia, Manitoba, Nova Scotia, Ontario, and Prince Edward Island under a statutory framework.
This release features updates to Appendix IF – Issues in Focus, Appendix SLL – Selected Legal Literature and Appendix WP – Words and Phrases.
Highlights
Appendix WP. Words and Phrases–Procedural Fairness Procedural fairness comprises the right to be heard and the right to an impartial hearing: Sull v. Trevitt (2025) CarswellBC 2114, 2025 BCSC 1366 (B.C. S.C.) at para. 22 Chan J.
Circumstantial Evidence Circumstantial evidence tends to establish those facts which are at issue at trial, but it does so indirectly (…). It concerns the proof of facts from which inferences can be drawn about the facts relevant to the legal issue under consideration (…). Each piece of evidence need not alone lead to the conclusion sought to be proved, and pieces of circumstantial evidence can be combined to justify the inference that a certain fact or state of mind exists (…): R. v. Rioux (2025), 2025 CSC 34, 2025 SCC 34, 2025 CarswellQue 11393 (S.C.C.) at para 58 Per Martin J. (Karakatsanis, Kasirer, Jamal, O’Bonsawin JJ. concurring).
Chapter 4 — Will Planning The entire chapter has been reviewed and refreshed. Commentary has been significantly updated under the headings for the Terminal Year regarding Compliance with Statutory Conditions, Shares of a Private Corporation, and Charitable Donations. Also, under the main heading for The Estate, The Testamentary Trust and the Beneficiaries for subheadings Facilitating Post Mortem Planning regarding Separate Testamentary Trusts, and Post-Mortem Contributions.
Chapter 6 — Gifts and Trusts Inter Vivos The entire chapter has been reviewed and refreshed. Commentary has been significantly updated under the headings of Income Taxation Affecting Gifts and Transfers to and From Personal Trusts Inter Vivos General comments, and Gifts of Farm or Fishing Property. A new section, Loss Restriction Events, has been added to the end of the chapter.
In this release, the author has prepared a new Year in Review, updated practice directions, legislation, and the prejudgment and post judgment interest rates.
Highlights
Chapter 5 – Forms The forms have been relaunched in this release to enable linking to the fillable forms in the electronic versions of this publication.
Chapter 7 – Miscellaneous – Court of King’s Bench and Court of Appeal Notices and Practice Directions The following Practice Directions have been added:
Re: Length and Formatting of Application and Motion Briefs (October 2, 2025)
Re: Change to Teleconference Numbers for Associate Judges Uncontested List (October 28, 2025)
Re: Anonymizing Pleadings and the Contents of Publicly Available Court Records (December 10, 2025)
Re: Self-Representing Litigants on Civil Applications and Motions (December 10, 2025)
The following Court of Appeal Notices have also been included:
Re: Hours of Registry Counter Services (October 1, 2025)
Re: Judges’ Books of Authorities (October 24, 2025)
Re: Security for Costs Required in Motions Requesting a Rehearing (December 4, 2025)
Appendix D – Recent Developmentsin Civil Litigation Year in Review–2025 The 2025 Year in Review lists some of the notable trends and developments in civil litigation in Manitoba from January 1 to December 31, 2025. The topics covered include – a review of practice directions issued by the Court of Appeal and the Court of King’s Bench in 2025; commentary on Notable decisions of the Manitoba Courts dealing with issues of civil procedure; and a comment on the report of the Civil Rules Working Group in Ontario.
This release features updates to the case law and commentary in the following chapters: 8 (Statutory and Constitutional Procedural Requirements), 9 (Pre-Hearing Participatory Rights: Notice, Disclosure, Delay and Adjournments), 10 (The Hearing and Participatory Rights), 11 (Interest, Bias and Independence), 12 (Review of the Decision-Making Process), 13 (The Grant of Authority), 14 (Review of the Exercise of Authority: Administrative Adjudication), and 15 (Review of Non-Adjudicative Administrative Action).
Highlights
The Courts remained busy in late 2024 and early 2025 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 decisions.
Honour of the Crown In Quebec (Attorney General) v. Pekuakamiulnuatsch Takuhikan, 2024 SCC 39, the Supreme Court concluded that contracts between the Crown and Indigenous communities may engage the honour of the Crown. In brief, the issue before the Court was a tripartite agreement between Canada, Quebec and Pekuakamiulnuatsch Takuhikan to fund an Indigenous police force for the Indigenous community. Overtime it became clear that the funding was insufficient to meet the police force’s needs. The police force ran a significant deficit. Pekuakamiul nuatsch Takuhikan sought to negotiate appropriate funding. Canada and Quebec refused to do so. Pekuakamiulnuatsch Takuhikan sued.
The Supreme Court set out a two part-test to determine if the honour of the Crown has been engaged by contracts between the Crown and Indigenous communities. The Court wrote as follows:
[161] First, the agreement in question must be entered into by the Crown and an Indigenous group by reason and on the basis of the group’s Indigenous difference, which reflects its distinctive philosophies, traditions and cultural practices. [162] It is well settled that the principle of the honour of the Crown rests on the “special relationship” between the Crown and Indigenous peoples. As in the case of an explicit obligation owed to an Indigenous group and enshrined in the Constitution, the honour of the Crown is engaged only by an obligation assumed by the Crown on the basis of its “special relationship” with the Indigenous group, which is different from the one it has with population in general. … Moreover the honour of the Crown will apply only if the contract has a collective dimension. Agreements relating to individual rights, even if they are between the State and an Indigenous contracting party, will generally not engage the honour of the Crown. [1631 Second, contractual agreements will engage the honour of the Crown where they relate to an Indigenous right of selfgovernment, whether the right is established or is the subject of a credible claim. In the case at bar, Pekuakamiulnuatsch Takuhikan argues that having an Indigenous police force is an exercise of. its right of self-government. I therefore take care to limit my comments accordingly. While we do not have to decide the question in order to resolve this case, I am not, however, excluding the possibility of recognizing, in a different context, that other Indigenous rights or interests might also engage the honour of the Crown in connection with a contractual undertaking.
The Supreme Court also provided insight on the remedies available where the honour of the Crown has been breached. The Supreme Court noted that, as part of “reconciliatory justice”, remedies should be alert to Indigenous perspectives and should compensate claimants not only for past wrongs but also “place the parties on the path to reconciliation.”
Production of Documents In United States of America and Rabang, 2025 BCCA 7, the British Columbia Court of Appeal considered a request for disclosure with respect to the Minister’s decision to surrender a fugitive in the context of an extradition hearing. The Court of Appeal held that the appropriate framework for considering the request was through the application of principles of judicial review of the decision makers. In applying these principles, the Court of Appeal concluded that disclosure should be limited to the materials actually before the decision-maker. As such, communications that were not before the decision-maker do not form part of the record, even where summaries of those communications were considered by the Minister.
Defamation Damages In James Bay Resources Limited v. Mak Mera Nigeria Limited, 2025 ONCA 448, 2025 CarswellOnt 10017, the Ontario Court of Appeal held that it was an error to award substantial damages to a corporation that had been defamed absent admissible evidence of harm or impact.
Punitive Damages InChung v. Chung, 2025 BCCA 136, 2025 CarswellBC 1275, the British Columbia Court of Appeal held that it was an error not to award punitive damages against the respondent notwithstanding findings that the respondent had breached his fiduciary duties of loyalty and trust and took active steps to conceal that conduct for years. The British Columbia Court of Appeal held that these findings at trial “in their cumulative effect rationally required an award for punitive damages.”
Privacy Law In Insurance Corporation of British Columbia v. Ari, 2025 BCCA 131, 2025 CarswellBC 1206, the British Columbia Court of Appeal has confirmed that wherever privacy rights are violated, there is a loss to the plaintiff, regardless of whether the plaintiff is ever made aware of the violation.
This release features updates to Chapter 5-Conflicts of Interest in Litigation, Chapter 25-Rules of Professional Conduct, Chapter 26-Discipline Proceedings, Appendix IF-Issues in Focus and Appendix SLL-Selected Legal Literature.
Highlights
Chapter 26-Discipline Proceedings-§ 26:18. Penalty Although a reprimand is sometimes dismissively characterized as a “slap on the wrist”, the Law Society of Ontario Tribunal has observed more than once that a reprimand is not without reputational consequence, as a reprimand leaves “a permanent mark on a lawyer’s record and affects his professional reputation and future business opportunities”.
Law Society of Ontario v. Constantine, 2020 ONLSTH 15, quoted with approval in Law Society of Ontario v. Diamond, 2024 ONLSTH 145.
Issues in Focus-§ IF:2. How can a client be held to be contributorily negligent in professional negligence matters involving lawyers? The general standard regarding professional liability for lawyers is that “a lawyer is required to exercise the standard of care of the reasonably competent member of his profession similarly situated in the discharge of his retainer.” In failing to meet this standard, “[a) solicitor who in the course of carrying out a transaction conducts himself in a manner amounting to professional negligence is liable for the damages arising from his failure to meet his professional duties”. The test to be applied in cases alleging solicitor’s negligence will depend on various circumstances, including the sophistication and financial experience of the client, which may have an effect on the extent of the solicitor’s obligations to the client.
Several defences may be put forward to limit or negate liability for professional negligence, including contributory negligence on the part of the client. For the most part, it will be extremely difficult for a lawyer to demonstrate contributory negligence by the client. However, where the client is also a lawyer, or other sophisticated actor, contributory negligence may be easier to prove.
This release contains amendments and updates to the commentary in Chapter 2 (Assets); Chapter 4 (Expenses and Legal Costs); Chapter 5 (Bequests and Beneficiaries); Chapter 15 (Resignation, Removal and Appointment of Trustees); and Words and Phrases.
Highlights
Lapse-Anti-lapse provisions-Contrary intention The deceased’s will provided that her real estate was to be left to her husband and, in an Alternative Transfer of Property clause, if he predeceased her, a property was to be left to her son and another to her daughter. This clause provided that the son was to receive the property left to him “absolutely”, as was the daughter. The will also contained the common clause intended to exclude a testamentary gift from, for example, the beneficiary’s net family property under s. 4(2) of the Family Law Act, R.S.O. 1990, c. F.3. The son predeceased the mother and the daughter argued that the two provisions manifested a contrary intention that would oust the operation of the anti-lapse provision. The court did not agree. It found that the words “for their own use absolutely”-or, as here, the word “absolutely” were not in themselves sufficient to demonstrate a contrary intention; this depended upon the totality of the will, the language used in the will, and the circumstances surrounding the creation of the will to determine the necessary intention of the testator. It concluded that the deceased’s intention in transferring the property to the son “absolutely” had its ordinary meaning, which is a gift of a full estate in fee simple. The word “absolutely” in the will did not express any intention to gift over the daughter should the son predecease the testator. With regard to the clause related to the Family Law Act, it found that the clause would only become operative if one of the beneficiaries separated or divorced. It was to protect her son during his lifetime and did not demonstrate an intention to prevent the property from passing to his wife following his death. The daughter also argued that the testator intended to treat her children equally and that the Alternative Transfer of Property clause was best understood as a class or joint gift of all her real property to her children. The court agreed that the testator generally sought to treat her children equally, but this general objective did not manifest an intention that would oust the anti-lapse provision in respect of the property: Devonport v. Devonport, 2024 ONSC 6764, 2024 CarswellOnt 19151 (Ont. S.C.J.), affirmed 2025 ONCA 753, 2025 CarswellOnt 18191 (Ont. C.A.).
Rectification of will-Intention of testator-Language of will requiring addition of words The cousins of the deceased initially applied for a declaration of intestacy, as to the residue of the deceased’s estate. The deceased’s will did not name a residual beneficiary. The residue made up the entirety of the estate. An application was granted in part, with partial intestacy declared by the application judge. The appellant was named the personal representative in the will but was not given a clear gift. The will stated only that: “[i]n the event that [the appellant] predeceases me then I bequeath my estate to the Dogwood Foundation”. The personal representative claimed that it was the deceased’s intention for her to be the beneficiary of the estate. The personal representative’s appeal from the application judgment was dismissed. The court found that conflicting inferences were present in the will, with extrinsic evidence being insufficient to clarify the testator’s intention. The Court of Appeal found that the will clauses were not inconsistent with the appellant’s claim but that the will could not be interpreted as naming a residual beneficiary based on its language without adding words, which was not the role of the court. The evidence for rectification was not sufficient:
7. That said, the problem created by the will as drafted is that the interpretation advocated for by the appellant is not available without adding a provision that is not there. In other words, even without treating any clause in the will as inconsistent with an intention that the appellant receive the residue of the estate, the will, as drafted, cannot be interpreted as naming a residual beneficiary. Rather, the appellant needed to make a case for rectification. This requires “clear and convincing evidence . . . that the will does not reflect the testator’s intentions because of (a) an accidental slip, omission or misdescription, or (b) a misunderstanding of, or a failure to give effect to, the testator’s instructions by a person who prepared the will”: Wills and Succession Act, SA 2010, c W-12.2, s. 39(1). On this record, with no evidence regarding the testator’s instructions, and only the contingency clause and some information about the testator’s circumstances and relationships that was of limited probative value, it was open to the chambers judge to determine that the testator’s intentions were not sufficiently clear.
Legal costs of executor-Executor defending removal application-Impact of testator’s responsibility for selection of estate trustee In a successful application to remove her sister as estate trustee, a beneficiary sought costs from the trustee personally as special costs, and an order that the trustee not be able to recover her own costs from the estate for defending this application. The court stated that there was precedent for denying costs from the estate for an executor who unsuccessfully defends themselves from removal on the basis that they are defending themselves personally in the litigation, not the estate, and it would be unfair to the beneficiaries: Levi-Bandel v. Talesiesin Estate, 2011 BCSC 247, 2011 CarswellBC 384 (B.C. S.C. [In Chambers]), paras. 33-36. It also said there was precedent for special costs being awarded against an executor who was removed for showing a troubling disregard for their duties as administrator and who placed their own interests above those of the beneficiaries: Estate of Forbes McTavish Campbell, 2015 BCSC 774, (sub nom. Campbell v. Campbell) 2015 CarswellBC 1254 (B.C. S.C.). It found, in this case, that the trustee had not been able to distinguish her own interests from those of the estate, and served her own interests by continuing to live in estate property, rent-free, for two and-a-half years despite her sister’s repeated demands for the sale and distribution of her inheritance. Also, the court found that the beneficiary had been required to hire legal counsel in this matter and did not have the means to pay for this outside the distribution of her inheritance from the estate. However, it found that part of the responsibility for the situation was rooted in the testator’s decision to appoint one of his daughters as executor of his will, knowing of the conflict between them. The court also noted that having the parties provide submissions on special costs would further delay the matter and eat into their resources and the resources of the estate. In its view the cost of further submissions and litigation would be disproportionate to the value of the estate. Given all the circumstances the court found, while acknowledging it was an increasingly rare outcome, that this was a case where the estate should bear the costs of the application: Koshman Estate (Re), 2025 BCSC 2193, 2025 CarswellBC 3f32 (B.C. S.C.).
This release features substantial updates to the case law in Chapter 2: Who Can Claim Relief, Chapter 5: Conduct to Which the Oppression Remedy Applies, Chapter 6: Remedies: General Principles and Practical Applications, Chapter 7: The Oppression Remedy and Other Statutory Remedies and Chapter 8: Litigating an Oppression Claim.
Highlights
Chapter 2: Who Can Claim Relief-§ 2:6. Potential Shareholders- In Shifrin v. LDF Frozen Foods et al., the applicant sought a declaration that he was the beneficial owner of 15% of the outstanding sares of the corporate respondent, LDF Frozen Foods and that the individual respondents held those shares in trust for him. He also sought a declaration that he had standing as a “complainant” under the OBCA. The applicant claimed that there was an agreement that he would invest $100,000 in LDF and work at LDF and, as consideration, receive 15% of the shares of LDF. There was no dispute that the applicant paid the $100,000 and worked at LDF, but there was a dispute as to whether there was an enforceable agreement among the parties with respect to the 15% interest and whether the applicant’s $100,000 investment had been repaid. Justice Dietrich concluded that there was an enforceable agreement among the parties to provide the applicant with 15% of the shares of LDF and that the applicant complied with the terms of the agreement by investing the $100,000, which had not been repaid. Having concluded that the applicant was indeed the beneficial owner of 15% of the shares, Justice Dietrich then found that the applicant was a proper complainant under the oppression remedy and entitled to seek relief in the form of the production of financial records and other relevant documents, stating that “[t]he relief sought by Mr. Shifrin is also consisted with other decisions of the court and others across the country which have found that where a respondent has refused to issue shares and an applicant is contractually entitled to receive those shares a claim under the Oppression Remedy is appropriate”. (Shifrin v. LDF Frozen Foods et al., 2025 CarswellOnt 5372, 2025 ONSC 2095).
Chapter 2: Who Can Claim Relief-§ 2:7. Warrantholders and Other Beneficial Owners-With respect to the distinction between legal and beneficial ownership of shares of a corporation, in Dhaliwal v. Cheema, Kimmel J. was required to determine whether the complainants were beneficial owners of the shares of various transportation companies, notwithstanding that the corporate records reflected that the respondent was the sole shareholder. Justice Kimmel noted that “[c]orporate records play an important role in governance, are subject to a statutory obligation of accuracy, and are presumed to be accurate, absent compelling evidence to the contrary”, but that “[a]n oral agreement and understanding regarding the beneficial share ownership is the type of compelling evidence that can rebut the presumption of share ownership.” Justice Kimmel concluded that the presumption had been rebutted based on her assessment of the complainants’ capital and in-kind contributions at the formation of the business and the respondents’ conduct over the past two decades. Having concluded that the complainants were beneficial owners, she found that their reasonable expectation was to be treated as owners and to continue to participate in management. The failure of the respondent to recognize their status as owners and to exclude them from management was oppressive and unfairly prejudicial their interests. (Dhaliwal v. Cheema, 2025 Carswell Ont 707, 2025 ONSC 382).
This release delivers a comprehensive overhaul of Chapter 8 – rewritten, reorganized, and retitled “Conflicts of Interest by Practice Area”. The revised chapter includes updated commentary, case law and academic literature by practice area.
Highlights:
Conflicts of interest can arise in any area of law but tend to predominate when lawyers represent more than one client. For example, there are some specialized areas of practice where conflicts of interest have become part of the institutional setting. These specialized areas of practice include bankruptcy and insolvency law, family law, insurance, real estate and wills and estates law, where conflicts of interest tend to arise more frequently than other practice areas. This is so because of the duties inherent in the relationships between and among the various parties. But conflicts can arise in any area of practice and there are many variables which give rise to what can be described as “systemic” conflict of interest issues. The first is the nature of the transaction that occurs between the parties. In real estate matters, for example, the parties may use an intermediary, a real estate agent, who has an interest in earning a commission by selling the property, and a bank that will provide a mortgage to the buyer. In some situations, it may be appropriate for one lawyer to act for multiple parties, but since the parties to the transaction may have different motives, conflicts can arise. A conflict of interest can exist even though the interests of the parties initially coincide. There is a myth, largely due to the use of “conflict” in “conflict of interest” that for a conflict of interest to exist there must be an adverse interest at stake or some form of contentious proceedings. The drafting of a separation agreement in a family matter or the preparation of a partnership agreement, particularly if there are several parties involved, can in fact give rise to a conflict of interest. The parties may share the same goals and objectives, but they may in fact disagree, or have divergent interests, in achieving these goals. The basic principles of adequate disclosure and consent remain the same as they do for matters that are contentious. The rules of professional conduct recognize that, in addition to the existence of a real or actual conflict of interest, there may be the appearance of a conflict of interest or the potential for a conflict of interest to occur.
This release contains amendments and updates to the commentary in Chapter 2 (Assets); Chapter 3 (Claims Against the Estate for Debts); Chapter 5 (Bequests and Beneficiaries); Chapter 15 (Resignation, Removal and Appointment of Trustees); and Chapter 17 (Dependants’ Relief Claims and Spousal Property on Death).
Highlights of This Release, Include:
Dependants’ Relief – Moral Obligation to Create Henson Trust – The court was asked to consider whether the testator breached her moral obligation by not putting an adult child’s inheritance into a Henson trust. The testator had three adult children. The testator’s will provided for modest bequests to her two grandchildren, with the remainder of the estate to be divided between each of her three children. The estate was a significant size, each child was to receive more than $ 1.8 million. The plaintiff, one of the testator’s children, was receiving government disability benefits and resided in social housing. It had been determined that the plaintiff was unable to work, and she received disability assistance. Eligibility for housing was based on provincial housing guidelines. She commenced a summary application seeking to vary her mother’s will to add terms that would place her share of the estate in a fully discretionary trust (Henson Trust). The intended impact of the discretionary trust was to ensure that the plaintiff would not lose her entitlement to disability benefits, and therefore her housing. The application to vary the will was dismissed with leave to re-apply. The court found that the only relevant determination was whether the testator, by leaving the plaintiff a direct distribution, failed to make adequate provision for her because she had failed to create the trust. The court stated that the factors in the application giving rise to concern included the size of the plaintiff’s inheritance and that, although disability benefits provided for subsistence level standard of living, evidence regarding the plaintiff’s expenses beyond what was covered through her disability benefits was sparse. The evidence fell short of allowing the court to conclude that the plaintiff would lose her housing if she received her inheritance by way of direct distribution. Overall, the evidence of the plaintiff’s current arrangements was of limited value in determining whether the testator failed to satisfy her moral obligations to provide for the plaintiff’s maintenance. In these circumstances, the court held that it was not possible for it to find that the testator failed to make adequate provision for the plaintiff’s proper maintenance and support. The court went on to note that if the plaintiff’s share of the estate provided her with sufficient funds to meet all of her needs and many of her wants, without resort to publicly funded disability benefits, the provisions of the will may be entirely appropriate: Damgaard v. Damgaard Estate, 2025 BCSC 208, 2025CarswellBC 334 (B.C. S.C.).
Competency of Executor’s – Animosity between Co-Executors – A coexecutor brought an application to “pass over” her brother who had been named in her father’s will as her co-executor of his estate. The grounds for her application was the personal animosity between herself and her brother. She argued that because of this they could not work together to administer the estate. Her brother disagreed and maintained that he was ready and willing to put his personal feelings aside and administer the estate according to his father’s wishes. He stated that he could work with his sister and act impartially. The court dismissed the application, finding it premature to say that the animosity between the parties would necessarily jeopardize the proper and efficient administration of the estate or the welfare of the beneficiaries. At the point at which the application was brought, the parties had not attempted to work together: Parkinson Estate (Re), 2025 BCSC 152, 2025 CarswellBC 212 (B.C.S.C.).
Division of Property – Determination of Ownership of Property – Equitable Presumption of Tenancy in Common – Applicability to Col-operative Housing – A husband and wife owned one share in a corporation and 200 common shares of W Co-operative Housing Inc. The corporation owned title to W, which was a housing co-operative. Title to the co-operative housing units at W were held by way of a share in the corporation, rather than holding title directly. The share certificate set out the registered owners as the husband and wife but there was no indication whether the share was owned as tenants in common or as joint tenants. The wife died in 2021, and the husband died in 2022, but they had lived apart for decades. The wife’s will left the husband her interest in W. The husband’s estate brought a motion for a declaration that it was the sole beneficial and legal owner. The motion was granted. The court found that the husband and wife held their share in the corporation, as well as the common shares in W, jointly. The wife’s share passed to the husband by way of survivorship upon her death. Therefore, the husband’s estate was the sole beneficial and legal owner of the shares. The equitable presumption of tenancy in common did not apply. The definition of “land” in the Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34 (CLPA), could not be expanded to apply to shares in the co-operative housing unit. Therefore, the common law presumption of joint tenancy applied, the share was jointly owned, and presumptions in s. 14 of the Family Law Act, R.S.O. 1990, c. F.3, applied. The court also found that there was sufficient evidence to rebut the presumption of resulting trust: there was no evidence of any intention to not take the shares as joint tenants, nor that the parties had attempted to sever their interests; the documents did not indicate specific interests; there was no evidence as to the parties’ contributions to the purchase price; the parties were not divorced; and neither equitable presumptions nor the CLPA applied: Gruber v. Glickman Estate et al., 2025 ONSC 258, 2025 CarswellOnt 619 (Ont. S.C.J.).
This release includes updates to Chapter 3 (Solicitor-and-Client Costs), Chapter 4 (Costs of Motions), Chapter 5 (Security for Costs), Chapter 8 (Appeals), Chapter 11 (Costs in the Federal Court), Chapter 14 (Costs in the Family Court and the Small Claims Court) and Chapter 15 (Costs in Construction Actions).
Highlights
Appeals—Appeals from Orders as to Costs—Exceptions—This decision was the second of two motions dealing with the defendant. RB, seeking leave to have the Court of King’s Bench of Manitoba reconsider a decision on costs released May 25, 2023. This litigation began in 2016 pursuant to the oppression remedies in the Corporations Act (Man.). Numerous motions were filed during the litigation dealing with a multitude of issues. The trial proceeded during two separate timeframes and lasted approximately 17 days. The trial judge then set aside two days to hear submissions on costs. The judge made an award of costs on a party-party basis. The judge did not award solicitor and client costs respecting all steps in the proceedings. RB filed a notice of motion seeking, among other things, an order granting a reconsideration of the cost decision on the merits of the case. The judge had to decide if the court should grant leave to re-open the issue of costs and reconsider the costs decision and whether the court grant a stay of the costs decision pending release of the decision from the Court of Appeal. After reviewing the caselaw presented by the parties, and applying those principles to the facts and circumstances to the case, the judge was not satisfied that RB had met the criteria to re-open the issue of costs and to reconsider the cost decision. As the judge noted, this was not a case where new evidence became available subsequent to the costs hearing and that there was a reasonable explanation for the evidence not being filed prior to the hearing. This was also not a case where there was a serious risk of a miscarriage of justice unless a rehearing was granted. Judge concluded that RB failed to meet the criteria required to reopen the cost decision. Campbell et al. v. Brar et al., 2024 A.C.W.S. 5119, 2024 MBKB 149 (Man. K.B.).
Costs in Construction Actions—General—Overview—In this case in the Superior Court of Justice for Ontario, the Associate Justice discharged the claim for lien of the plaintiff pursuant to the old Construction Act (Ont.), section 47 and dismissed the action as the court found that the claim for lien was frivolous, vexatious, and an abuse of process and that the lien claimant had not complied with a previous removal order. The Associate Justice also ordered that the related certificate of action be vacated from title. Costs were awarded to the defendant BP in the amount of $85,000 for the motion and the action and to the defendant JDI in the amount of $45,000 for the motion and the action. After reviewing the chronological history of the matter regarding the registration of the lien and the commencement of the action, the court then addressed the test for liability for costs under the old Construction Act and whether FR was liable for the costs owing by the plaintiffs under that subsection. As noted, the defendants brought their motions pursuant to the old Construction Act section 86(1)(b)(i). The court went on to state, “Given this gatekeeping function, the argument was whether the costs sanction of section 86(1)(b)(i) applies only to cases where the representative has subjective actual knowledge of the baselessness of the claim for lien.” The Associate Justice, after a review of case law, found that liability for costs under section 86(1)(b)(i) required a finding that the representative subjectively knew of the baselessness of the claim for lien when it was registered and perfected. The case law also established that evidence of bad faith or improper purpose qualified the lawyer for a costs order under this subsection. The Associate Justice found that liability for costs under section 86(1)(b)(i) includes recklessness and wilful blindness. The Associate Justice concluded that there was insufficient evidence that FR had actual knowledge of the baselessness of the lien when it was preserved and perfected nor was FR reckless or wilfully blind in that regard. Accordingly, the motions were dismissed in their entirety. 2708320 Ontario Ltd. cob Viceroy Homes v. Jia Development Inc., 2024 ONSC 1608 (Ont. S.C.J.), affirmed 2024 ONSC 6519 (Ont. Div. Ct.).
This release features updates to Appendix B. Quantum Tables and Appendix IF. Issues in Focus.).
Highlights
APPENDIX IF. ISSUES IN FOCUS-Under what circumstances is there a duty of care between students and universities or university professors, and, if one does exist, what is the scope of that duty?-In Bella v. Young, the Supreme Court of Canada succinctly delineated the law of negligence, and illustrated the duty of care that formed the core of tortious liability based on negligence or negligent misrepresentation. However, in Bella, it was not the law of negligence that was noteworthy, because the basic legal principles of negligence were well established and fairly non-controversial. Rather, it was the novel context of the case that was of primary significance: a duty of care arising between a student and university professors, as well as with the university itself. Bella’s recognition of the existence of a duty of care is significant because it expanded the circumstances in which the law of negligence applied, with the imposition of attendant responsibilities and liabilities for damages. While Bella recognized a duty of care between students and universities/professors, the exact scope of that duty remains indeterminate. The judicial perspective on the issue of the existence of a standard of care was reinterpreted in 2010 by the Ontario Court of Appeal in Gauthier c. Saint-Germain, 2010 ONCA 309 (Ont. C.A.), where it held that where “the plaintiff alleges factors that constitute a cause of action based on torts or a breach of contract, while claiming damages, the court has jurisdiction, even if the dispute stems from academic or educational activities of the university in question”. However, even where a court is found to have jurisdiction, a plaintiff must still plead the requisite elements of the cause of action. Regarding a tort action, the Court of Appeal made it clear that a student cannot simply state that a professor was too demanding in their evaluations, or revealed their incompetence.
APPENDIX B. QUANTUM TABLES- Harper v. Mezo, 2024 CarswellBC 1458 – Plaintiff, aged 64, suffered injuries when the driver of the vehicle in which she was a passenger fell asleep and drove off the highway at a speed of 80 km/h, traveling into a ditch and suffering significant damage to the front passenger side. After the collision plaintiff was airlifted to hospital with three spinal fractures, and remained in hospital for 10 days. Plaintiff suffered significant injuries, including a mild traumatic brain injury, three vertebral fractures, injuries to her sternum, soft tissues injuries to her shoulder, neck, and back, an injury to her left abdominal wall, right leg, right knee, and headaches. She had significant back pain, leg pain, arm numbness, shooting pains, and spasms. Pre-existing vertigo and dizziness were aggravated. She suffered anxiety and depression, post-concussion syndrome, cognitive difficulties, sleep difficulties, and chronic pain in her left shoulder, neck, and back. The impact of these injuries on plaintiff’s life was devastating. Defendants failed to establish that plaintiff failed to mitigate her damages. Power (J.A.) J. awarded plaintiff general damages in the amount of $250,000, as well as $517,100 for cost of future care.
This release includes updates to Chapter 2 (Party-and-Party Costs):
Party-and-Party Costs—Liability for Costs—Liability of Successful Party for Costs—In this case before the Ontario Superior Court of Justice the defendant brought a motion to dismiss the plaintiffs’ action for delay for failing to comply with a court ordered timetable and for various breaches of the Rules of Civil Procedure (Ont.). The motion judge denied the defendant’s motion but ordered a new litigation timetable peremptory on the plaintiffs. The court then considered the submissions with respect to costs. Based on all of the circumstances and the applicable law, the motion judge ordered that the plaintiffs pay costs of the motion to the defendants in the amount of $4000 all-inclusive. Pokrajac et al. v. The Corporation of the Town of Essex et al, 2025 ONSC 595 (Ont. S.C.J.).
Party-and-Party Costs—Several Defendants—Third Party Proceedings—This matter in the Ontario Superior Court of Justice involved in a motor vehicle collision. The plaintiff suffered serious injuries. The defendant commenced a third party claim against the parties responsible for winter road maintenance operations for the subject highway. In her costs submissions, the defendant conceded that there was never any issue of contributory negligence in the main action. The only issue in the main action was damages. The entire focus of the defendant’s liability argument was against the Ministry of Transportation for Ontario (“MTO”). The plaintiff and the defendant finally resolved the main action for $210,000 plus prejudgment interest with only costs to be agreed upon or assessed. The MTO refused to accept the settlement was reasonable. It took the position that the defendant would have to prove the damages as against it. The court found it deeply concerning that the MTO would not accept a relatively modest settlement of $210,000 as reasonable given the plaintiff’s evidence of his injuries and lost career. As the court found, the MTO’s position on this issue was entirely unreasonable and would be factored into its cost award. Continuing on the judge said, “The defendant was insured. The insurer is a sophisticated litigant who was instructing its counsel. The insurer knew it was ultimately responsible to the plaintiff for all damages. It had the funds to pay the claim in full yet it decided to make a tactical decision to drag out this litigation, putting undue pressure on an innocent plaintiff, even after the plaintiff had reduced its claim to an amount well within the range of what could have been awarded at trial. In my view, once the plaintiff made his offer in April 2024, the matter should have resolved. Instead, the defendant insisted on contribution from the third party. This forced the plaintiff to prepare for a lengthy trial. While it was open to the defendant to make tactical decisions, it does so at the risk of exposing itself to additional costs.” In the court’s discretion on costs, the judge accepted the plaintiff was entitled to legal fees on a partial indemnity basis. The third party took the position that it was entirely unreason able to bring it into this litigation and was seeking partial indemnity costs. As the third party was successful in its defence of the third-party claim, the third party was entitled to costs. Costs are to “indemnify” parties — either on a partial, substantial, or full indemnity basis. The court cannot assess what it is indemnifying without knowing what is actually being charged to the client. I therefore accept the defendant’s position that I cannot rely upon the amounts set out within the MTO’s Bill of Costs as it does not provide that invaluable piece of information.” Mitten v. Ministry of Transportation, 2025 ONSC 2645 (Ont. S.C.J.).
This release features updates to Chapters 2 (Assault and Battery), 6 (Defamation), 15 (Malicious Prosecution), 16 (Negligence (General)), 19 (Negligence (Special)), 20 (Nuisance), 27 (Developing Torts), 29 (Liability), 29A (Vicarious Liability), and 30 (Damages).
Highlights
Chapter 6—DEFAMATION—6:29 Judicial Proceedings— In Tuharsky v. O’Chiese First Nation, 2025 CarswellAlta 1715, the plaintiff was former general counsel of the defendant First Nation. Defendant engaged in litigation with former lawyers and in course of that litigation, negative comment about the plaintiff made in pleading and hearings; plaintiff sues in defamation. Chambers judge rejects absolute privilege claim of defendant; on appeal, defamation claim dismissed. Once statement made within a step in judicial proceeding there is an absolute privilege regardless of the content of statement or motive behind it. Moreover, it is not relevant whether the statement was false or made with malice; nor is there any exception for statement about a non-party in the proceeding.
Chapter 16—NEGLIGENCE (GENERAL)—16:26 Residual Policy— In Paddy-Cannon v. Canada (Attorney General), 2025 CarswellOnt 8084, plaintiffs were indigenous children placed with non-indigenous family members after being taken into care. Plaintiffs suffered emotional and physical abuse while with family members and sue Canada in negligence as a result of government failing to follow through on plan to return plaintiffs to indigenous family in Saskatchewan. Canada owed the plaintiffs an ad hoc fiduciary duty (required to act in best interest of the children and were a defined group of individuals that were vulnerable to Canada’s control) and had a positive duty of care to the plaintiffs (grounded in fact that Canada had control of the plan for a return. Plan was inter-provincial and Canada’s responsibility indigenous people’s culture and identity). Moreover, harm associated with loss of culture, language and identity was reasonably foreseeable.
Chapter 20—NUISANCE—20:21 Injunctions— In Hill v. Herd, 2025 CarswellBC 1530, homeowner at trial successfully establishes nuisance claim as against adjacent gas station that renovated its business thereby creating light and sound pollution as well as fumes to impact the homeowners’ enjoyment of their property. Despite finding a nuisance, the trial judge refused to is sue an injunction against the gas station; this on the basis that some measures had been taken to lessen the nuisance, the renovations provided for safer delivery and storage of fuel and the gas station was integral to the community; the trial judge instead ordered damages. While the trial judge erred in referring to the injunction sought as a discretionary equitable remedy rather than there being a prima facie basis in successful nuisance claims. The trial judge was justified in declining to issue an injunction based on the facts.
What’s New in This Update: This release contains amendments and updates to the commentary in Chapter 2 (Assets); Chapter 5 (Bequests and Beneficiaries); Chapter 13 (Duty to Keep Records); Chapter 15 (Resignation, Removal and Appointment of Trustees); and Words and Phrases.
Highlights of This Release, Include:
Presumption in Favour of Early Vesting — Ademption — Abatement —Impact on Gifts of Real Estate — The testator died in 1994, he was survived by his wife and their 13 children. In his will, dated February 20, 1989, he gave a life estate to his wife after which two farm properties were to go to two of his sons, Robert and Winfield. These gifts were subject to the sons paying specified amounts ($50,000 and $90,000 respectively), for the properties. The will, testator died in 1994, he was survived by his wife and their 13 children. In his will, dated February 20, 1989, he gave a life estate to his wife after which two farm properties were to go to two of his sons, Robert and Winfield. These gifts were subject to the sons paying specified amounts ($50,000 and $90,000 respectively), for the properties. The will, inter alia, provided that a mortgage to Robert was to be forgiven and the residue of the estate was to be divided among all his children with the exception of Robert. The testator died five years after preparing his will. His wife lived another 24 and a half years. By then, the value of the two farms had “skyrocketed”, dwarfing the specified amounts his sons were required to pay for them and dwarfing the gifts to the testator’s other children. Robert died intestate before his mother, he was survived by his wife Lynn. In 1994, with the consent of all beneficiaries, the estate had assigned the mortgage to the testator’s wife and Robert started paying the mortgage interest to his mother and not to the testator’s estate. In 2018, his mother executed a new will that did not include any gift to Robert’s estate of mortgage forgiveness. She died shortly after. Her death triggered a tax liability which, as of June 2022, was about $462,000 and the CRA had begun enforcement proceedings against the estate. The bulk of this liability arose because of the deemed disposition of the two farms. The estate was unable to pay the amounts it owed from the residue or from the mortgage. In order to meet these obligations, one or both of the farms had to be sold, or money otherwise raised against the value of the farms. The court had to decide several issues. Among these was whether the gift of mortgage forgiveness to Robert failed because the mortgage had been assigned to his mother. The court found that it did. The court noted that all beneficiaries, including Robert, had agreed to the assignment. The trustees had broad power under the will to “sell or otherwise dispose of” the estate’s assets. The phrase “otherwise dispose of”, in the view of the court, was sufficient to include “assign”. Robert and his wife acted on the assignment by making payments to Robert’s mother directly. They continued to benefit from the interest-only aspect of the mortgage. The mother never demanded payment of the mortgage after it matured. The validity of the assignment went unchallenged for 26 years. In these circumstances, the court found that it would be wrong to now hold that the assignment was invalid. The court also had to determine whether Robert needed to have survived his mother for the gift of the farm to him to succeed. In the court’s view the answer to this was no. The court found that the presumption in favour of early vesting was applicable in this case. Noting that this presumption was sometimes referred to as the rule in Browne v. Moody, 1936 CarswellOnt 92, [19361 O.R. 422 (Jud. Corn. of Privy Coun.): Fraser Estate, Re, 1986 CarswellOnt 661, 55 O.R. (2d) 268 (Ont. H.C.); Howes v. Hartley, 1986 CarswellSask 285, [19871 2 W.W.R. 749 (Sask. C.A.), at para. 10; Vea Estate v. Clemson Estate, 2014 BCSC 1970, 2014 CarswellBC 3119 (B.C. S.C.), at para. 25; Bradley Estate, 2023 BCSC 618, 2023 CarswellBC 1001 (B.C. S.C.), at para. 23, the court pointed out that the decision in Browne in fact appears to address the contingency of a residuary beneficiary dying before the life tenant. It noted that although this was obiter, MacMillan L.J. wrote in that decision that, “[a] legatee predeceasing the son without leaving issue would not be affected by the clause and the interest of such a legatee would pass on her death to her representatives.. .This is in accordance with well-settled principles.” The court went on to point out that multiple Canadian cases decided after Browne, did not distinguish it on this basis: Merritt, Re, 1945 CarswellOnt 224, [19451 O.W.N. 470 (Ont. H.C.); Rauckman, Re, 1969 CarswellSask 84, 71 W.W.R. 73 (Sask. Q.B.); Howes v. Hartley; McKeen Estate v. McKeen Estate, 1993 CarswellNB 35, 49 E.T.R. 54 (N.B. Q.B.); Schradi Estate, Re, 2006 CarswellOnt 1765, 24 E.T.R. (3d) 63 (Ont. S.C.J.); and Vea Estate v. Clemson Estate. In each of these cases, a residual legatee died before the life estate ended and it was held that the residual legatee’s estate was entitled to the gift because the residual gift vested upon the testator’s death. The trustee also argued that the gift of the farms to Robert and Winfield were void for uncertainty. The will instructed the trustees to give the first right to purchase the farms at the price of $50,000 and $90,000 respectively and “upon such terms as may be mutually agreed between [them] and my trustees.” The trustee submitted that this phrase left terms and conditions to be determined by a future agreement, and this was unenforceable. The court did not agree. It noted that the trustee had not identified any terms or conditions that might have presented a problem. The key factor—price—had been determined by the will and furthermore, there has been no failure to agree to terms after good faith efforts. To satisfy the outstanding tax liability, it was necessary for the court to then determine how the rules of abatement impacted the gifts. Citing Albert H. Oosterhoff, Oosterhoff on Wills, 9th ed. (Toronto: Thomson Reuters, 2021), at p. 722, the court observed that the common law order of abatement for testamentary gifts was: (1) residuary personalty; (2) residuary real property that is not specifically devised; (3) general legacies, including pecuniary legacies payable from residue; (4) demonstrative legacies; (5) specific bequests and legacies of personalty; and (6) specific devises of real property. The court noted that it had considered whether there was anything in the language of the will that would suggest that the gifts of the farms should not abate rateably (i.e., proportionately, or pro rata) and it could find nothing in the will to support that. Further, the court went on to hold that the trustee had a discretion to sell, mortgage, or otherwise raise funds from the farms or to enter into an arrangement with Robert’s estate or Winfield (or both of them) that allowed them to receive the farms but also allowed the estate to pay all its debts. A motion was brought by Lynn and Winfield for a stay of the court’s order permitting the trustee to sell the farm properties, pending appeal. This was dismissed. See Stewart Estate v. Stewart, 2025 ONCA 575, 2025 CarswellOnt 12228 (Ont. C.A.): Hale v. Stewart, 2025 ONSC 2275, 2025 CarswellOnt 7616 (Out. S.C.J.).
Express Trust —— Real Estate — Declarations of Trust — Purchase Money Resulting Trust — The deceased died intestate. At the time of his death, he owned a condominium. Two weeks prior to purchasing the condomin ium he had signed a declaration of trust declaring that he held the condomin ium in his name on behalf of the Islamic School of Ottawa. This was the prede cessor organization to the respondent, the Arabic and Islamic Education Foundation of Ottawa (“Foundation”). The deed indicated that the property was transferred to the deceased “in trust,” but without any reference to the Founda tion or its predecessor. The court found that although the deceased may have intended to hold the property in trust, the requirements to create an express trust had not been met: the deceased did not own the property when he signed the declaration of trust. Because of this, he was not legally enabled to declare a trust when he signed the declaration. The court cited the Court of Appeal in Ruhner v. Bistricer, 2019 ONCA 733, 2019 CarswellOnt 14766 (Ont. C.A.), at para. 58, additional reasons 2020 ONCA 226, 2020 CarswellOnt 4098 (Ont. C.A.), leave to appeal refused 2020 CarswellOnt 3973, 2020 CarswellOnt 3974 (S.C.C.): “Any type of property can be the subject-matter of a trust, save for ‘future property’, that is, property that the settlor does not yet own”. The respondents had submitted that the deceased, as a layperson, had simply signed the declaration of trust when he was asked to do so by the bank. He would not have known it would be insufficient to create a trust. Moreover, over the years, he had continued to sign and receive documents referring to the property as be ing “in trust”. The respondents stated that, through these documents, he had effectively declared himself to be a trustee. In making this submission they relied on Elliott (Litigation Guardian of) v. Elliott Estate, 2008 CarswellOnt 7448, 45 E.T.R. (3d) 84 (Ont. S.C.J.), at para. 39, where the court held that a trust may be constituted through a declaration of self as trustee and that it is not necessary to use technical or legal terms to do so. It is sufficient that the in dividual or organization demonstrate the intention to become a trustee. The court held, however, that a self-declaration alone was not sufficient to establish an express trust—as was held in Elliott, all of the other requirements of an express trust had to be met. It observed that the important factual distinction between Elliott and the present case was that the matter before it involved land. As a result, the formality requirements in the Statute of Frauds, R.S.O. 1990, c. S.19, were engaged and section 9 required that all declarations of trust in land be proved by a writing signed by the party who is by law enabled to de clare such trust. While the documents referred to by the respondents might be evidence of the deceased’s (undisputed) intention to hold the property in trust, they did not otherwise meet the requirements for establishing an express trust. This was because they did not identify the beneficiary and they provided no certainty that the Foundation or the School was the object of the trust. More over, while many of the documents referred to the property, they did not clearly identify it as the subject of the trust. The respondents’ alternative argument was that there was a resulting trust in favour of the Foundation, based on its financial contributions to the purchase of the property. The court found that there was no evidence, however, that the Foundation contributed to the purchase price of the property. The Foundation had made mortgage payments, but the court found that the payment of the mortgage cannot result in a purchase money resulting trust—the relevant time for the contribution of funds to give rise to a purchase money resulting trust is at the time the property is acquired. The mortgage payments proven in evidence were made years after the property was acquired. Moreover, it was not clear that those payments contributed to the purchase of the property. While the mortgage was in the deceased’s name, the Foundation or its predecessor occupied and had use of the property. The court observed that, therefore, the Foundation’s subsequent mortgage payments might be relevant to other types of claims, but they did not establish a purchase price resulting trust: May v. Alsousi et al., 2025 ONSC 795, 2025 CarswellOnt 2213 (Ont. S.C.J.).
The Manitoba Law Library would like to acknowledge with gratitude that we are situated on Treaty One Territory, the traditional lands of the Anishinaabe, Cree and Dakota peoples, and the homeland of the Métis Nation.
Great LEXpectations RSS Feed