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.
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.).
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