In this release the definition of “family violence” has been augmented to include the Supreme Court of Canada case Ahluwalia v. Ahluwalia, in which a new tort of intimate partner violence was recognized.
In recognizing a new tort of intimate partner violence, the Supreme Court of Canada differentiated “family violence” from “intimate partner violence”. In addition to including physical acts of violence and psychological abuse, the tort of intimate partner violence considered tactics of isolation, manipulation, humiliation, surveillance, economic abuse, sexual coercion, and intimidation that can control and entrap intimate partners.
See Ahluwalia v. Ahluwalia, 2026 CarswellOnt 7706, 2026 CarswellOnt 7707, 2026 SCC 16, 2026 CSC 16 (S.C.C.), reversing in part 2023 CarswellOnt 10325, 2023 ONCA 476 (Ont. C.A.), varying 2022 CarswellOnt 2367, 2022 ONSC 1303 (Ont. S.C.J.) and 2022 CarswellOnt 2986, 2022 ONSC 1549 (Ont. S.C.J.)
This release also updates cases that consider the appropriate quantum of spousal support payable when a payor spouse either exceeds the SSAG “ceiling” of $350,000 or does not meet the “floor” of $20,000. Notable cases include:
The arbitrator erred by concluding that the SSAG formulas were of limited assistance on the basis that the husband’s income may be over the $350,000 SSAG ceiling. See Eldridge v. Eldridge, 2024 CarswellBC 131, 2024 BCCA 21 (B.C. C.A.).
Taking into account the needs of the wife, the ability of the husband to pay, and fairness, not formulas, warranted support payable just under the low range of support as calculated by the SSAG using the husband’s full income for support purposes. See J.W.C. v. J.L.C., 2026 CarswellNfld 93, 2026 NLSC 46 (N.L. S.C.).
The husband’s income significantly exceeded the SSAG ceiling, and spousal support was ordered at the low range of the SSAG, to terminate in10 years, where the wife had delayed efforts to become financially self-sufficient. See W1908 v. H1908, 2025 CarswellBC 2145, 2025 BCSC 1390 (B.C. S.C.).
Where the husband’s retirement was reasonable in the circumstances, with an employment income of zero and possible investment income of $14,000 left his total income below the SSAG floor, and ongoing spousal support was terminated on an interim basis. See Kelly v. Gammon, 2022 CarswellAlta 174, 2022 ABQB 57 (Alta. Q.B.).
This release updates the case law and commentary in Chapter 33 (Prosecution) and Chapter 35 (Human Rights).
Highlights
Chapter 35 — I. Introduction — § 35:1. The Legislation — and Job Descriptions and Fiduciary Status – Although the Ontario Human Rights Code contains no express limitation restricting the tribunal’s jurisdiction to matters within provincial competence, it remains a provincial statute and cannot confer authority over matters that fall within Parliament’s exclusive jurisdiction. The constitutional doctrine of interjurisdictional immunity prevents one level of government from legislating in a way that impairs the core of the other’s legislative powers: Trudel v. Meta Platforms Inc., 2026 ONSC 789 (Ont. Div. Crt.) at para. 20.
Chapter 35 — VI. Discrimination on the Basis of Disability — § 35:57. Perceived Disability – “At paragraph 54 of Bokhari v. Top Medical Transportation Services, 2026 ONSC 1073, the Ontario Divisional Court noted that while the Supreme Court in Boisbriand acknowledged that “normal ailments” like a cold “will generally not” constitute a disability because there is “normally not a negative bias” against these ailments, the court did not lay down a hard and fast rule that transitory injuries were necessarily excluded from the meaning of disability. In this regard, the Supreme Court of Canada was careful to emphasize that the multidimensional analysis of disability required under human rights legislation focuses on “obstacles to full participation in society rather than on the condition or state of the individual.”
Chapter 35 — VI. Discrimination on the Basis of Disability — XII. Discrimination on the Basis of Sex — § 35:90. Sexual Harassment — Requirement of a Sexual Component – The maker of offending comments need not have been motivated by the desire to engage in sexual relations with those to whom the comments are made for the comments to constitute sexual harassment. For example, distribution of pornography in the workplace, in and of itself, has been held to constitute sexual harassment: Westjet v. T.H., 2026 FCA 20 at paragraph 24 referencing Poliquin v. Devon Canada Corporation, 2009 ABCA 216 at paragraphs 55 to 60. Lewd comments and demeaning comments based on gender or sexual orientation have been found to constitute sexual harassment in the absence of any sexual intent on the part of the maker. In the Westjet case the, Federal Court of Appeal found that an arbitrator’s conclusion that the respondent’s repeated comments and questioning of co-workers about their sexual development and that of their female children, as well as his comments about a co-worker’s breasts did not amount to sexual harassment, contradicted the well-established case law on sexual harassment. The Federal Court of Appeal noted that the comments and questions were sexual in nature, were made repeatedly, and the respondent knew or should have known that they were inappropriate and unwelcome. The Federal Court of Appeal held that the arbitrator’s failure to follow established case law, or, at the very least to provide a rational analysis for the departure, rendered the decision unreasonable, at paragraph 29.
Chapter 35 — VI. Discrimination on the Basis of Disability — XV. Procedure — §35:133. Other Avenues for Legal Redress for Breaches of Human Rights Legislation – In Weeks v. Abbotsford (City), 2025 BCSC 2120, a class action claim by former female police officers who alleged that they were subjected to gender or sexual orientation-based discrimination, harassment, and bullying by officers and management of British Columbia’s municipal police forces that arose during their employment, but unrelated to a dismissal, and that predated the collective agreement, was allowed to proceed. The issue of the negotiation of an article in a collective agreement can be distinct from its application or interpretation and thus, it can be a stand-alone issue or complaint over which a Human Rights Board of inquiry has jurisdiction: University of New Brunswick v. Canadian Union of Public Employees, Local 3339, 2025 NBKB 231 at paragraphs 39 and 45 referencing Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39.
This release features updates to Chapter 2 (Jurisdiction), Chapter 4 (Motions), Chapter 5 (Protection Application–The Threshold Finding), Chapter 6 (Protection Application–Dispositions), Chapter 8 (Evidence at Trial), Chapter 9 (Summary Proceedings and Agreements) and Chapter 10 (Access).
Highlights
Motions — Parental Alienation – It is insufficient on a motion to request and order for reunification counselling to simply state that the children won’t visit so therefore they must be alienated. Expert evidence is required to identify the cause of the family breakdown and that the counselling would actually benefit the children: Michael v. Gadallah, 2025 ONSC 334.
Protection Application — Dispositions — Temporary Committal Order – The court cautioned against imposing standard or overly broad conditions without evidence. The main concern was the parents’ ability to meet the child’s significant medical needs. While there was limited evidence of substance use, the court found it insufficient to justify strict conditions like addiction assessments or abstinence requirements: M.H.H.B., Re, 2026 SKKB 66.
Protection Application — Dispositions — Permanent Guardianship – All custody-related applications under the FLA must be heard before making a final decision about a child’s permanent placement with the Minister: New Brunswick (Minister of Social Development) v. L.K., 2026 NBKB 34.
This release updates the commentary and caselaw in Chapter 5 (Functions of the Registrar), Chapter 6 (Land Descriptions and Registered and Deposited Plans of Survey), Chapter 13 (Mortgages), Chapter 15 (Lis Pendens), Chapter 18 (Statutory Exemptions to Indefeasibility of Title) and Chapter 20 (Builders’, Construction and Mechanics’ Lien Legislation).
Highlights
Land Descriptions and Registered and Deposited Plans of Survey–The Condominium Acts–The Condominium Corporation–Oppression Remedy – Gordon v. The Owners, Strata Plan EPS2300, 2026 BCCRT 654 – Applicant owner of only 3 commercial lots in mixed-use strata building challenges increase in commercial contribution requirement respecting common expenses; applicant alleges new allocation formula based on unit entitlement significantly unfair based increase in commercial share of common expenses from 16% to 21.45%; owner requests return to original allocation scheme and refund of unauthorized amounts paid; strata corporation alleges original allocation scheme violates Act which mandates use of unit entitlement as basis for allocation unless unanimous resolution adopted to approve alternative allocation scheme such that shares should always have been calculated on unit entitlement; strata represented and owner of commercial units reasonably expected share of only 16%; authorities state allocation of common expenses by unit entitlement can give rise to significant unfairness and 34% increase in amount paid towards common expenses is burdensome harsh or inequitable; good faith of strata corporation no defense; order for strata corporation to recalculate share of contributions based on original allocation scheme, determine amounts overpaid and underpaid based on years unit entitlement applied and adjust strata accounts accordingly.
Statutory Exceptions to Indefeasibility of Title–Any Public Highway–Ontario – Township of Cleariew et al. v. Wargon et al., 2026 ONSC 2252 – Dispute over ownership of land registered in respondent’s name and alleged to be highway by Township; Township seeks declaration of highway and rectification of title under s. 159 of Land Title Act; legal test for dedication turns on whether owner intended to dedicate land for public highway and road actually opened to and accepted by public; road opening bylaw not mandatory to establish acceptance of highway dedication especially given express dedication by deed and historical evidence of construction and use of road by public; at time of purchase, respondent knew land was used for public highway; adverse possession inapplicable to public highway and highway status unaffected by conversion to land title system; exercise of power of rectification respecting land used for public highway is exception to indefeasibility of title; since road registered on title, current owner not bona fide purchaser for value without notice; order for rectification to reflect Township’s ownership of public highway.
The following looseleaf subscriptions have resumed. The most recent update is highlighted below:
This release features updates to the case law and commentary in Chapters 1 (Sources), 9 (Responsible Government), 15 (Judicial Review on Federal Grounds), 16 (Paramountcy), 22 (Transportation and Communication), 39 (Override of Rights), 40 (Enforcement of Rights), 43 (Expression), 45 (Voting), 47 (Fundamental Justice), 51 (Rights on Being Charged), 52 (Trial Within Reasonable Time), and 53 (Cruel and Unusual Punishment).
Highlights
Distribution of Power — Judicial Review on Federal Grounds — Characterization of Laws — Double aspect – The double aspect doctrine is not a primary doctrine that, like the pith and substance doctrine (and the ancillary powers doctrine), provides a free-standing analytical framework that can be applied in determining whether a law is valid. It is a secondary doctrine that, when invoked, is folded into the analysis of whether a law is valid under the pith and substance doctrine (and the ancillary powers doctrine). This raises the obvious question: at which step of the pith and substance doctrine should the double aspect doctrine be addressed if invoked? The double aspect doctrine is most relevant to the analysis at the second step of the pith and substance doctrine (the classification step), which, recall, requires a determination of whether the matter of a challenged law falls within a head of power allocated to the level of government that enacted it. Under the double aspect doctrine, a law will be found to be valid at the classification step if it relates to an “aspect” of a matter that falls within a head of power allocated to the enacting level of government, even though the matter has another aspect that falls within a head of power allocated to the other level of government. However, the double aspect doctrine will likely also subtly influence the analysis at the first step of the pith and substance doctrine (the characterization step), which, recall, requires a determination of the matter (or pith and substance) of the challenged law. This is because the courts – as noted in an earlier section – tend to use concepts that will assist in classifying a law at the second step of the pith and substance analysis when they characterize a law at the first step of the pith and substance analysis, despite the Supreme Court of Canada’s entreaty – also noted in that earlier section – that the courts keep the two steps of the pith and substance analysis distinct. This explains why the double aspect doctrine is addressed in the part of this chapter relating to the characterization of a law under the pith and substance doctrine, rather than the part of the chapter relating to the classification of a law under the pith and substance doctrine (even though, as noted, the double aspect doctrine is also – indeed particularly – relevant to the classification of a law).
Civil Liberties — Enforcement of Rights — Remedy Clause — Apprehended infringements – In R. v. Varennes (2025), the Supreme Court of Canada awarded a s. 24(1) remedy for another Charter infringement that it feared might occur in the future. In that case, the accused, who was charged with the second-degree murder of his spouse, was to stand trial in September 2020, only a few months after the initial outbreak of the COVID-19 pandemic. In the months leading up to the trial, various public health restrictions were instituted to mitigate the spread of COVID-19, including a suspension of jury trials. In June 2020, to avoid potential COVID-19 related delays, the accused requested a trial by judge alone, which is allowed under the Criminal Code if both the accused and the Crown consent. The accused argued that potential COVID-19 delays to jury trials risked infringing his s. 11(b) Charter right to be tried within a reasonable time. However, the Crown refused to consent to a trial by judge alone for public interest reasons. The accused brought a motion seeking an order for a judge-alone trial in the superior court without Crown consent. The trial judge granted the accused’s motion for a judge-alone trial and, at the end of his trial, acquitted him of second-degree murder, convicting him of manslaughter instead. The case ended up in the Supreme Court on appeal, where the central issue was whether the trial judge had the jurisdiction to order a judge-alone trial without Crown consent. Karakatsanis J., who wrote for the majority of the Court, held that the trial judge had the jurisdiction to order a judge-alone trial without Crown consent under the inherent jurisdiction of the superior courts. However, she declined to resolve the standard that should be applied in determining whether to exercise this jurisdiction because she held that s. 24(1) also provided the trial judge the jurisdiction to order a judge-alone trial without Crown consent. The trial judge had concluded that COVID-19 related delays to jury trials would likely have infringed the accused’s right to be tried within a reasonable time under s. 11(b), and so had the jurisdiction to order a judge-alone trial without Crown consent as a remedy under s. 24(1).
Note: all text under “What’s New in this Update” and “Highlights” sections is taken verbatim from documents received from the publisher. MLL is not responsible for errors in this content.
In this release case law on variation and review of spousal support has been updated for Wilton & Semple Spousal Support Commentary, Chapter 18.
Highlights
Notable cases include:
A review order will be set aside where such an order was not warranted on the facts, and where the terms of the order are so restrictive as to effectively foreclose the payor from applying for a variation of spousal support if he or she retired before a pre-determined age, regardless of the circumstances of retirement. See F. (L.C.) v. B. (W.P.), 2023 CarswellPEI 71, 2023 PECA 9 (P.E.I. C.A.).
Foreseeable contingencies that were not known or contemplated at the time of a spousal support order can still form the basis for a material change in circumstances on a future variation application. See Davidson v. Davidson, 2025 CarswellNB 171, 2025 NBKB 82 (N.B. K.B.).
Where the husband’s income had decreased and the wife’s income had increased, the relative changes in the parties’ incomes amounted to a material change in the circumstances, and there was no longer a sufficient disparity in the means of the parties to justify continued spousal support. See A.G. v. R.J.G., 2025 CarswellBC 972, 2025 BCSC 583 (B.C. S.C.).
Prolonged, exceptional level of conflict between the parties that resulted in increased time, stress, and legal fees, may amount to a material change in circumstance that, if known by the parties at the time that the original orders was sought, would likely have resulted in the parties seeking different orders than were originally sought. See S.L.D. v. W.A.D., 2024 CarswellBC 1408, 2024 BCSC 548 (B.C. S.C.).
An intention to retire may not warrant a variation to a payor’s spousal support obligations where, among other factors, the agreement between the parties required that the payor actually retire in order to be able to apply for a variation in spousal support. See Linklater v. Mardukhi, 2024 CarswellBC 3706, 2024 BCSC 2277 (B.C. S.C.).
This release features updates to Chapter 3 (Commencing the Protection Application), Chapter 4 (Motions), Chapter 5 (Protection Application–The Threshold Finding), Chapter 6 (Protection Application–Dispositions), Chapter 8 (Evidence at Trial), Chapter 9 (Summary Proceedings and Agreements), Chapter 11 (Appeals).
Highlights
Commencing the Protection Application — Identification – Children’s Aid Society of Ottawa v. K.L.C., 2026 ONSC 839, 2026 CarswellOnt 1856 (Ont. S.C.J.) – A finding of Indigenous identity under the CYFSA will not automatically result in a finding under the Federal Act. The CYFSA ties the definition to self-identification and relative/sibling connection. A finding under the Federal Act rests on self-identification, ancestral connections and community acceptance. A finding under both Acts must rest on a reliable and credible evidentiary foundation.
Protection Application–Dispositions — Timelines – Minister of Opportunities and Social Development v. C.L., 2025 NSSC 427, 2025 CarswellNS 1266 (N.S. S.C.) – While s. 45 of the CFSA limits the total duration of all disposition orders for children under the age of 14, to 12 months, the current case was one of those rare and unusual ones where the best interests of the child demanded a short extension to the statutory timeline. The court found that the Federal Act was about more than providing notice to a ban. It was about the history of Indigenous scoops and ensuring that First Nations children are not removed from their communities unless there is absolutely no alternative. While the Nova Scotia legislation does not provide for an extension of the timelines, the Court of Appeal has found that the timelines can be extended in rare circumstances and where the best interests of the child so demand. In this case, where extending the timelines would facilitate the making of a Customary Care Agreement, avoiding a permanent care order, such an extension is in the best interests of the child.
This release features updates to Chapter 8–Appendices, Appendix A–Recent Regulatory Developments and Appendix SLL–Selected Legal Literature.
Highlights
Appendix A. Recent Regulatory Developments:
§ A:8. Health Professions
§ A:9. Lawyers and Other Legal Professionals
§ A:15. Physicians and Surgeons
Appendix SLL. Selected Legal Literature:
§ SLL:10.50. ARTIFICIAL INTELLIGENCE
Guidelines for the use of artificial intelligence in Canadian courts, prep. by Martin Felsky and Karen Letis. (Summer 2025) 48 Prov. Judges J. No. 1, 37 (4).
§SLL:11. ATTORNEY AND CLIENT
The Ongoing history of [Ontario Substitute Decisions Act] section 3 counsel: the role and lawyers’ professional obligations, by Alexander Procope. (Oct. 2025) 44 E.T.P.J. 321-365.
§SLL:21 LAWYERS–General
Changes to disclosure obligations of partial settlement agreements, by Dylan Fisher. (Sept. 2025) 26 Mun. Liab. Risk Man. 63-64.
§SLL:28. NURSES
Alberta Court of Appeal upholds arbitral ruling on health service’s use of agency nurses, by Bernise Carolino. (June 2025) Can. Lawyer (Online).
§SLL:30.50. POLICE OFFICERS
Public order policing in Canada: filling legal gaps by court or Parliament? by Clemens Arzt. (Sept. 2025) 73 Crim. L.Q. 339-373.
The following looseleaf subscriptions have resumed. The most recent update is highlighted below:
This release features updates to Chapter 27 (Entrapment), Chapter 15 (Proceeds of Crime Money Laundering), Chapter 30 (Mistake of Fact), Chapter 32 (Attacking the Indictment), Chapter 34 (Inadequate Investigation and Third Party Suspect), Chapter 35 (Sentencing Under the CDSA and the Cannabis Act), Chapter 36 (General Sentencing Principles and Pardons) and Chapter 37 (Ministerial Exemptions).
Highlights
The Crown frequently relies on the testimony of police agents in drug cases. Should such witnesses be treated with the same degree of caution as Vetrovec witnesses? The Ontario Court of Appeal discussed this issue in R. v. Budlakoti, 2025 ONCA 490, and we look at that case in Chapter 27, “Entrapment”.
The Supreme Court has considered many s. 12 Charter challenges to mandatory minimum penalties and did so again in Quebec (Attorney General) v. Senneville, 2025 SCC 33. Notably the Court split 5:4 on the use of so-called “reasonable hypotheticals”, in the context of a challenge to sentencing provision for a child pornography offence. We consider the case in Chapter 35, “Sentencing under the CDSA and the Cannabis Act“.
The Supreme Court has also tried to constrain appellate intervention in sentencing appeals in a number of cases. Appellate intervention is permissible where a sentence is “demonstrably unfit.” But how do appellate courts avoid intervening in cases where they would have imposed a different sentence? The Saskatchewan Court of Appeal tried to flesh out the “demonstrable unfit standard in R v. Bull, 2025 SKCA 87. We discuss that case in Chapter 35, “Sentencing under the CDSA and the Cannabis Act“.
The role an offender played in a drug trafficking operation is a significant factor in drug sentencing. The Manitoba Court of Appeal considered the description of an individual as a “mid-level dealer” in R. v. Isaac, 2025 MBCA 94. We examine the case in Chapter 35, “Sentencing under the CDSA and the Cannabis Act“.
When can a trial court reject a joint submission, and when should an appellate court intervene when the submission was rejected? These issues have attracted a large body of law. The Alberta Court of Appeal took a thorough look at the issues in R. v. R.P.A., 2025 ABCA 300. We look at that decision in Chapter 36, “General Sentencing Principles and Pardons”.
This release updates the commentary and caselaw in Appendix B (Manitoba Forms Under the Real Property Act), Appendix C (British Columbia Forms for Manual Filing), Appendix D (Alberta Forms Under the Land Titles Act (Regulation 480/81–Forms Regulation)) and Appendix WP (Words and Phrases).
Highlights
WORDS AND PHRASES – BRITISH COLUMBIA – RENTAL UNIT – The definition of “rental unit” makes it clear that the factual determination of whether living accommodation is “rented or intended to be rented” is key, hence the arbitrator’s thorough review of the facts and circumstances relevant to the relationship between the parties and their intentions. Habitat for Humanity v. Booth (2026), 2026 BCCA 8, 2026 CarswellBC 52 (B.C. C.A.) at para. 52 Justice Grauer.
WORDS AND PHRASES – BRITISH COLUMBIA – SHADOW OF EXPROPRIATION – Expropriation of a property is an ongoing process. This may include the “shadow” of the taking where steps that precede the formal acquisition causes damage to an owner … S&R Sawmills Ltd. v. Greater Vancouver Sewerage and Drainage District (2025), 2025 CarswellBC 3881, 2025 BCSC 2453 (B.C. S.C.) at para. 162 Gibb-Carsley J.
Note: all text under “What’s New in this Update” and “Highlights” sections is taken verbatim from documents received from the publisher. MLL is not responsible for errors in this content.
This release updates the legal memoranda in Appendix IF–Issues in Focus and adds new terms to Appendix WP–Words and Phrases.
Highlights
Appendix IF. Issues in Focus:
§ IF:1. “Is a duty of fairness owed to a complainant?”
§ IF:2. What level of disclosure is owed to a person facing a hearing before a disciplinary tribunal, and what are the related Canadian Charter of Rights and Freedoms issues that arise?
§ IF:3. Does the Canadian Charter of Rights and Freedoms operate to protect individuals who face a disciplinary hearing from self-incrimination, particularly when the evidence given may be used against him or her in a subsequent civil or criminal proceeding?
Appendix WP. Words and Phrases–§ WP:244. OTHER PROCEEDING – The court accepts that the phrase “action or other proceeding” [in s. 204(2) of Highway Traffic Act, R.S.O. 1990, c. H.8] is expansive and that the term “proceeding” eludes an exhaustive definition. However, that broad meaning cannot include a regulatory proceeding by the College [of Physicians and Surgeons] concerning a MTO Report. This interpretation of “other proceeding” advocated by the applicant would produce absurd consequences.
The applicant’s interpretation would immunize the physician or other regulated health professional from professional regulation within this sphere of practice. This would convey the ironic message that this is one area of practice where the regulated health professional cannot be regulated. The legislature cannot have intended such an outcome.
…..
This interpretation would also create a further absurdity where the [Inquiries, Complaints and Reports] Committee would not perform its statutory screening function and instead refer MTO Report complaints to the Discipline Committee because of the statutory immunity and the Committee’s lack of fact-finding powers to determine if the report was made in good faith.
…..
In contrast, it is entirely consistent with the purpose and context of both the Highway Traffic Act and the Regulated Health Professions Act [,1991, S.O. 1191, c.18] if the College complaint process is not an “other proceeding” subject to statutory immunity.
Jeyaranjan v. Health Professions Appeal and Review Board (2025), 2025 CarswellOnt 21275, 2025 ONSC 6152 (Ont. Div. Ct.) at para. 49, 50, 51, 52 K. Tranquilli J.
This release features updates to the case law and commentary in Chapters 2 (Assault and Battery), 4 (Conversion and Detinue), 5 (Deceit), 16 (Defamation), 19 (Negligence (Special)), 27 (Developing Torts), 29A (Vicarious Liability), and 30 (Damages).
Highlights
CHAPTER 4–Conversion and Detinue – Plaintiff, common law partner of deceased spouse brings claim in conversion against the deceased spouses’ adult children; following the spouses death, the children attended at the house shared by the plaintiff and the deceased individual and removed $252,000.00 from a safe in the basement of the house; evidence indicated that the deceased spouse had intended his common law partner to use the money to support herself following his death, moreover, the defendants did not include a record of the monies in the listing of their father’s estate; trial judge finds act of removal of monies a conversion: Kennedy v. Teakles et al., 2025 NBBR 123; appeal by defendants dismissed in Hoar and Teakles v. Kennedy, 2026, NBCA 12.
CHAPTER 16–Negligence – The plaintiff was driving a 15-year-old minivan through an intersection that was under active paving but the defendant; the undercarriage of the minivan struck an exposed water valve causing an accident and the minivan’s airbags to deploy; while the trial judge determined that the plaintiff was required to provide expert evidence that established the defendant’s breach of the standard of care in clearly marking the site, the trial judge also determined that the plaintiff failed to meet an appropriate standard of care because minivan was old and not sufficiently maintained: Valerio et al v. City of London et al., 2025 ONSC 4332.
CHAPTER 16–Negligence – In addressing the contributory negligence of the driver who was hit when a car from the opposite direction crested a hill and crossed into the driver’s lane, the trial judge determined that there is a need for a ‘robust and pragmatic approach to causation’ however does that not allow a party to fill in the evidence when there is evidence missing about the seconds before impact by the negligent driver and the impacted driver was on his side of the road and driving under the speed limit: Recoskie v. Vandenheuvel et al., 2025 ONSC 5856.
The following looseleaf subscriptions have resumed. The most recent update is highlighted below:
In this release cases have been added to update topics of the allocation of decision-making authority and a parent’s entitlement to information about a child.
Highlights
Notable cases include:
A party who has not been granted decision-making responsibility still has the right to request and receive information about their child’s wellbeing. See Fatima v. Tunio, 2025 CarswellOnt 17863, 2025 ONSC 5474 (Ont. S.C.J.)
A temporary order for decision-making authority should not be made unless necessary, particularly in high-conflict cases and matters already on track for trial. See Gjorsovski v. Krajisnik, 2025 CarswellOnt 21526, 2025 ONSC 7220 (Ont. S.C.J.)
An order regarding international travel for children is an aspect of decision-making responsibility. In a high-conflict situation, particularly if parenting and decision-making has not been resolved on a final basis, it will be in a child’s best interest to permit international travel with one parent only with the consent of the other parent. See Afshar v. Najarzadeh, 2025 CarswellMan 253, 2025 MBKB 92 (Man. K.B.)
Where the father had not seen the children for more than three years, the mother was granted sole decision-making authority, with either party at liberty to apply for a review of the parenting order upon the father’s successful completion of reunification therapy with a qualified professional. See F.C. v. S.C., 2025 CarswellNS 1254, 2025 NSSC 422 (N.S. S.C.)
In cases of high conflict, but with each parent having the ability to make decisions, delineating decision-making for separate decisions to individual parents may be appropriate. See L.M. v. K.P., 2024 CarswellOnt 8245, 2024 ONSC 2959 (Ont. S.C.J.)
Note: all text under “What’s New in this Update” and “Highlights” sections is taken verbatim from documents received from the publisher. MLL is not responsible for errors in this content.
In this release, the author has updated Chapter 3 (Annotations).
Highlights
Disposition Without Trial–Default Proceedings–Default Proceedings–Setting Aside–Generally – The Court has a broad discretion in the determination of whether a default judgment should be set aside. There is a distinction between setting aside the noting of default to allow a defence to be entered and setting aside default judgment. The test for setting aside default judgment in more onerous in nature. While the overriding consideration is whether setting aside the judgment would be just, the following is a non-exhaustive list of factors the court may consider:
(a) whether the defendant had an ongoing intention to defend; (b) whether the defendant adequately explained why there was a delay in filing the defence; (c) whether the delay in filing a defence was willful; (d) whether the motion to set aside the noting of default was brought with dispatch; and (e) whether the delay in filing a defence caused prejudice to the plaintiff.
Disposition Without Trial–Dismissal for Delay – In its Reasons for Decision, the Court sets out the rationale behind Rule 24.02 and a brief outline of the history leading to the status of the law, including how Rules 24.01 and 24.02 relate to one another and how they are to be applied. In this case, the court found that the conduct of the defendant, and any responsibility for the delay should be considered. While a defendant is entitled to take a “wait and see” approach to the litigation and thereby put the onus on moving the matter forward on the plaintiff, that approach is not without its parameters. If the defendant fails to discharge its obligations or communicate with the plaintiff in a timely way, it may be seen to be contributing to the overall delay. Parkinson v. Winnipeg Regional Health Authority, 2025 MBCA 82, per Mainella, J.A. (for the Court).
This release includes updates to Chapter 3 (Solicitor-and-Client Costs), Chapter 4 (Costs of Motions), Chapter 5 (Security for Costs), Chapter 6 (Assessment of Costs), Chapter 8 (Appeals), Chapter 11 (Costs in the Federal Court) and Chapter 14 (Costs in the Family Court and the Small Claims Court).
Highlights
Security for Costs–Appeals–General – The moving party in this appeal to the Ontario Court of Appeal was seeking an order for security for costs against the appellant in the amount of $100,000 relating to the appellant’s appeal of a wrongful dismissal finding against it that resulted in a damage award of $175,000. The moving party pursued two bases for the security for costs motion. (1) pursuant to rule 61.06(1)(b) of the Rules of Civil Procedure (Ont.) and rule 56.01(1)(d) on the grounds that there was “good reason to believe” that the appellant had insufficient assets in Ontario to pay the costs of the appeal; and (2) pursuant to rule 61.06(1)(c) there was “other good reason” to order security for costs. The appeal court judge dismissed the motion. The judge stated the general legal principles. “There is a two-step process required before a discretionary order is made to order security for costs against an appellant pursuant to rule 61.06(1). The first question is whether the requirements of rule 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.” [Paragraph 8]. [Citations omitted]. The relevant factors in deciding whether it would be just to order security are not closed. In the end the court did not find good cause for making a security for costs order. Stride v. Syra Group Holdings, 2025 A.C.W.S. 1762 (Ont. C.A.)
Assessment of Costs–The Assessment Officer–Costs of Assessment–Solicitor-and-client assessment – This was a motion in the Ontario Superior Court of Justice pursuant to rule 54.09(2) of the Rules of Civil Procedure (Ont.) addressing an assessment under the Solicitors Act (Ont.). The assessment was conducted by an assessment officer. The respondent law firm opposed confirmation of the costs awarded arising out of the assessment. The client was awarded $90,000 in costs for her own time by the assessment officer. The client had retained the law firm regarding a property dispute. The action was partially successful. The assessment took place over 42 days in 2021. The reasons of the assessment officer were released in 2024. The law firm’s account was reduced by more than half. The client conducted the assessment on her own. The law firm opposed the award of $90,000 in costs on the very narrow ground that there was no evidence upon which the assessment officer could conclude that the client had forgone remunerative employment such that she should receive an award of costs for her time. The law firm did not challenge the time the client devoted to the assessment. In the end, the motion judge granted the appeal and awarded the client $40,000 in costs for her own efforts in the assessment. This motion was not a hearing de novo. The question was whether the assessment officer erred as a matter of principle. In the end, rather than send the matter back to the assessment officer the judge concluded that $40,000 was a reasonable fee particularly having regard to the fact that there was neither evidence of the extent of the forgone work nor an assessment of the hours worked by the client that would be work otherwise performed by a lawyer. Rosenberg v. MacDonald, 2025 ONSC 4455 (Ont. S.C.J.).
This release contains amendments and updates to the commentary in Chapter 2 (Assets); Chapter 3 (Claims Against the Estate for Debts); Chapter 4, (Expenses and Legal Costs); Chapter 5 (Bequests and Beneficiaries); Chapter 9 (Delegation to Agents); Chapter 11 (Executor’s Compensation); Chapter 15 (Resignation, Removal and Appointment of Trustees); Chapter 17 (Dependants’ Relief Claims); and Words and Phrases.
Highlights
Draft Will–Validation–Succession Law Reform Act, R.S.O. 1990, c. S.26 (SLRA), s 21.1(1) – This was an application to validate a draft will pursuant to s. 21.1(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (SLRA). Without an order validating the draft will, the SLRA’s provisions on intestacy would govern the distribution of the deceased’s estate and his property would pass to his estranged surviving siblings and the children of his predeceased brother. The deceased had died suddenly after meeting with a lawyer who had drafted a will and powers of attorney for him. A letter from the lawyer, which the deceased had picked up, enclosed drafts of the will and power of attorney, confirmed an appointment for October 16, 2024 to sign the documents, and also stated: “Kindly review the draft and advise of any changes or corrections, preferably at least two or three days prior to your appointment.” The deceased died before the appointment. The sole issue before the court was whether the draft will set out the deceased’s testamentary intentions. In coming to their decision, Muszynski J. noted that in the case law dealing with court validated wills, it was evident that a key consideration was whether the deceased has demonstrated “a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death”: Young Estate, Re, 2015 BCSC 182, 2015 CarswellBC 264 (B.C. S.C.), at para. 35; White v. White, 2023 ONSC 3740, 2023 CarswellOnt 9722 (Ont. S.C.J.), at para. 18; Skopyk Estate, 2017 BCSC 2335, 2017 CarswellBC 3561 (B.C. S.C.), at para. 21; Salmon v. Rombough, 2024 ONSC 1186, 2024 CarswellOnt 3088 (Ont. S.C.J.), at para. 115; Smith Estate, Re, 2016 BCSC 350, 2016 CarswellBC 521 (B.C. S.C.), at para. 19; and McKinlay v. Currie et al., 2025 ONSC 3471, 2025 CarswellOnt 9805 (Ont. S.C.J.), at para. 28. Muszynski J. noted that the applicant had relied on Grattan v. Grattan (February 1, 2023), Doc. 22-0054 (Ont. S.C.J.), to support her position that a draft will can be validated pursuant to s. 21.1 of the SLRA if the court is satisfied it reflects the testamentary intentions of the deceased. Muszynski J. observed that aside from Grattan, courts in Ontario have more frequently allowed applications under s. 21.1 of the SLRA to cure technical deficiencies to a signed will. The court noted that in Hejno v. Hejno, 2025 ONCA 876, 2025 CarswellOnt 20944 (Ont. C.A.), a draft will was validated by the application judge pursuant to s. 21.1 of the SLRA. As it was unopposed, the application judge did not issue reasons for judgment. The Court of Appeal allowed the appeal and noted that without “the benefit of reasons in the court below or full argument before us, this is not an appropriate case for us to definitively determine the legal test that governs applications under s. 21.1 of the SLRA.” Muszynski J. stated that the validation of an improperly executed or otherwise deficient will is a fact specific inquiry that often requires reliance on extrinsic evidence. Muszynski J. noted that the applicant had put forward evidence on instances where the deceased had expressed his intentions with respect to the disposal of his property, however the court cited Madhani v. Fast, 2025 ONSC 4100, 2025 CarswellOnt 11207 (Ont. S.C.J. [Estates List]), where the court said, “expressions of intentions as to how a testator would like their property to be disposed of after death are not testamentary intentions. Expressions of intentions, alone, are insufficient to ground a valid will.” Muszynski J. noted that this distinction between expressions of intentions and testamentary intentions was at the heart of this case and the applicant had not satisfied the court that the draft reflected the deceased’s testamentary intentions, meaning his deliberate or fixed and final expression of intention as to the disposal of his property on death for the following reasons:
While there were some similarities between an updated, handwritten list of intended dispositions found in the deceased’s home and the draft will, there were notable discrepancies.
There was no evidence that the deceased reviewed the draft will.
The lawyer’s letter enclosing the draft will invited the deceased to review draft and to “advise of any changes or corrections” at least two to three days prior to the signing appointment.
The suggested deadline for the deceased to “advise of any changes or corrections” had not yet expired before he died.
While the lawyer’s evidence was that the deceased was clear in his instructions and had made up his mind as to who he wanted to benefit from his estate, he also acknowledged that he scheduled a follow-up appointment weeks later to allow him an opportunity to review the draft documents and make any requested changes or corrections.
Muszynski J. found that the draft will could not be validated by s. 21.1 of the SLRA. This was because “people change their minds” and the deceased appeared to have changed his mind on at least one occasion between the time he had made his handwritten list and the time he met with his lawyer and it was unclear whether he would have requested any further changes or corrections to the will before he returned to sign a final version: Smith v. Bechtel et al., 2026 ONSC 975, 2026 CarswellOnt 2113 (Ont. S.C.J.).
Child–Definition–Section 60 the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] – The definition of “child” pertinent to s. 60 of WESA has recently been reopened in this case. This was an application by the defendants of an underlying claim, to strike that claim on the basis that there is no genuine issue for trial. The respondent had sought to vary the terms of the deceased’s will under s. 60 of WESA. At the time of making his will, the deceased had executed a Statutory Declaration, confirming, inter alia, that:
he never fathered, biologically or otherwise, any children, and as such, he has no lineal descendants;
he never adopted or legitimated any persons and has never, in any manner, claimed any person as his child;
he did not consider, and had never considered, the respondent to be his child;
he and the respondent voluntarily provided bodily samples and undertook paternity testing through the DNA Diagnostics Center; and
the DNA Report concluded that the probability of him being her parent was 0%.
The respondent’s mother and the deceased were married four months before her birth and she, on the other hand, alleged that in all respects the deceased presented himself to her and the world as her father. In support of their application to strike, the applicants submitted that the British Columbia Court of Appeal has dispositively decided that, for the purposes of s. 60 of the WESA, the definition of “child” is limited to a natural (that is, biological) or an adopted child in Peri v. Doman Estate, 2011 BCCA 401, 2011 CarswellBC 2623 (B.C. C.A.), and Hope v. Raeder Estate, 1994 CarswellBC 72, 2 B.C.L.R. (3d) 58 (B.C.C.A.). The applicants argued that the principle of stare decisis applied and that the court was bound by the Court of Appeal’s findings in Hope and Peri, and there is nothing in the instant case to justify a departure. The court decided for the respondent. It stated that [it] was not satisfied that stare decisis applied to bar all will variation claims from all non-biological and non-adoptive children saying at para. 36:
36 As the Court of Appeal has acknowledged, Peri and Hope did not operate to foreclose all wills variation claims brought non-biological or non-adoptive children. Indeed, the Court of Appeal expressly left open the possibility that the definition of “child” may be expanded beyond biological and adoptive children where the factual circumstances are compelling enough. The respondent claims that her situation is the factual matrix that could spur a shift in the law. Whether that claim is true is not a matter that can be decided summarily.
…
39 The Court of Appeal expressly recognized the possibility that, in the future, the definition of “child” for the purposes of s. 60 of WESA may be expanded. The crux of Ms. Stainer’s claim is that social norms regarding families and parent-child relationships have shifted over time such that her relationship with Mr. Landry ought to be recognized by WESA as conferring standing to her to bring a wills variation claim.
40 These are not issues that can be decided summarily. …
This release features updates to the commentary and case law in Chapters 5 (Judicial Measures), 6 (Sentencing), and 12 (Sentencing Under the YCJA).
Highlights
R. v. T.M., 2025 MBPC 78, 2025 CarswellMan 410 (Man. Prov. Ct.) – The young person was sentenced to a six-month deferred custody and supervision order followed by eighteen months’ probation for possessing a loaded, restricted weapon, contrary to Criminal Code s. 95(1). The sentencing judge determined that firearms possession virtually always met the criteria for consideration of custody as an exceptional case pursuant to YCJA s. 39(1)(d). In the instant case, the circumstances of the offence, which included the young person’s use of the gun in a gang fight where another person was murdered, constituted the clearest of cases and necessitated a custodial sentence.
R. v. T.M., 2025 ONCA 862, 2025 CarswellOnt 20482 (Ont. C.A.) – The limitations of the availability of a DCSO sentence to six months in length and non-serious violent offences do not violate s. 7 or s. 15(1) of the Charter. Accordingly, the illegal sentence of 24-month DCSO imposed by the sentencing judge was varied to a fit disposition of 18 months’ probation with conditions and a community service order of 100 hours. In upholding the constitutionality of YCJA s. 42(5) and s. 42(2)(p), the Court of Appeal conducted a contextualized analysis of the YCJA’s policy foundations and objectives, including recognizing young persons’ reduced moral culpability, holding them accountable for offending conduct and reducing the historical overincarceration of youth. The Court drew heavily on the Supreme Court of Canada’s analysis of YCJA principles in R. v. I.M., 2025 SCC 23. The Court of Appeal emphasized that it is an error in principle to treat proportionality or retribution as the dominant or isolated focus of youth sentencing. Rather, as clarified in R. v. I.M., youth accountability requires a holistic approach. The Court of Appeal also cited the robust conditions of youth probation as an important complement DCSOs and the YCJA sentencing regime as a whole in explaining why a DCSO does not and should not be interpreted as a parallel to an adult conditional sentence. Youth probation, in contrast with adult probation, can include conditions that are not restricted to rehabilitative objectives, thereby supplying accountability via proportionate sentences and meaningful consequences.
R. v. X.C., 2025 ONCJ 366, 2025 CarswellOnt 10954 (Ont. C.J.) – A young person is considered to be “at trial” for the purpose of appointment of counsel pursuant to YCJA s. 25(4) if they have rejected or been rejected for extrajudicial sanctions and the youth justice court is satisfied that they wish to contest the charges and will not be accepting a resolution with which duty counsel can assist them. Youth justice courts should develop procedures that minimize the need for young persons to spend inordinate and unnecessary amounts of time attending court. One example of an alternative to in court application hearings would be a protocol for youth court judges to consider such applications in chambers in writing. This kind of alternative process is more responsive to the objectives of the YCJA and does not waste judicial resources. (Editor’s Note: This decision rejects the reasoning in prior cases requiring that a young person actually be arraigned before a s. 25(4) application can be entertained.)
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.
The Manitoba Law Library would like to acknowledge with gratitude that we are situated on Treaty One Territory, the traditional lands of the Anishinaabe, Cree and Dakota peoples, and the homeland of the Métis Nation.
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