Elements of Cause of Action, §4:8 Subject-matter of the Action – In Zwaan v. LaFramboise, 2024 ONSC 23, the plaintiff received insurer’s cheque in respect of fire that destroyed plaintiff’s barn. The defendant’s lawyer advised the plaintiff that he would deposit cheque into firm trust account until it could be properly paid out given the presence of a mortgage transfer; however defendant lawyer deposited cheque into personal account and claimed (i) amounts applied against mortgage amounts (not proven) (ii) amounts were applied against outstanding legal fees owed by plaintiff. The defendant lawyer had unlawfully converted funds to his own use). The Trial Judge’s decision was upheld on appeal.
Defences, §6:53 Comment on a Matter of Public Interest – In Neufeld v. Bondar, 2025 BCCA 1, the defendant was found liable in defamation for having characterized the plaintiff as a ‘strip-tease artist’. The plaintiff was a candidate for school trustee and the parties had been involved in a political debate over content in school curriculum including elements of sexual orientation and gender identity. The defendant claimed trial judge ignored the political context of his statement. On appeal, the trial judge was right not to consider political context of exchange between parties when determining whether the comment was defamatory.
Duty of Care, §16:25 Proximity – In Rivard v. Ontario, 2025 ONCA 100, the plaintiff was brutally beaten by police during his arrest. His claim of negligence as against the Chief of Police was allowed to proceed; there was the allegation that the Chief owed the plaintiff a duty of care to ensure that the police officers conducting the arrest were properly trained and supervised and the Chief breached this duty by failing to train and supervise the individual officers. It was reasonably foreseeable that the failure to do so would result in the plaintiff’s extensive injuries.
Joint Tenancy – Gratuitous Gift – Severance – Right of Survivorship – There is conflicting authority on the issue of whether a joint tenancy, once gifted, can be severed, thereby eliminating the right of survivorship. Appellate decisions in Manitoba and B.C. appeared to stand for this proposition, see Simcoff V. Simcoff, 2009 MBCA 80, 2009 CarswellMan 357 (Man. CA.), and Bergen v. Bergen, 2013 BCCA 492, 2013 CarswellBC 3473 (B.C. CA.). While Thorsteinson Estate v. Olson, 2016 SKCA 134, 404 D.L.R. (4th) 453 (Sask. C.A.), a decision of the Saskatchewan Court of Appeal, and Pohl v. Midtdal, 2018 ABCA 403, 78 Alta. L.R. (6th) 78 (Alta. C.A.), from the Alberta Court of Appeal, are conflicting authorities. This release contains a discussion of two recent decisions on this subject. Jackson v. Rosenberg, 2024 ONCA 875, 2024 CarswellOnt 18865 (Ont. CA.), additional reasons 2025 ONCA 48, 2025 CarswellOnt 600 (Ont. C.A.), is a decision in which the Ontario Court of Appeal joined the courts affirming this proposition. It found that the applicant had not intended to convey legal and beneficial title and the applicant had right to sever the joint tenancy after the transfer even though to do so would end the right of survivorship. The court stated that each joint tenant has a unilateral right to sever, whether the tenancy was created for consideration or gratuitously. The right of survivorship required severance to not occur. The other case is Pearman v. Kuramoto, 2024 BCSC 1953, 2024 CarswellBC 3158 (B.C. S.C.). In refusing an application for dismissal brought under Rule 9-6(5) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, the court stated that the purpose of this rule was not to decide novel or difficult legal issues. Citing D. (L.) (Guardian ad litem of) v. Provincial Health Services Authority, 2011 BCSC 628, 2011 CarswellBC 1172 (B.C. S.C. [In Chambers)), para. 20, reversed 2012 BCCA 491, 2012 CarswellBC 4133 (B.C. C.A.), the court noted that Justice Sewell had suggested that a court should decide an issue of law under Rule 9-6(5) only if satisfied that the issue of law is “well settled by authoritative jurisprudence” and the court found in, its view, “the law in British Columbia as to whether the gift of a right of survivorship in a joint interest in land precludes subsequent severance of the joint tenancy is not well settled by authoritative jurisprudence”, para. 36.
Competency of Executors – Removal – Conflict of Interest – In this case the court observed that not all perceived or actual conflicts of interest will give rise to the removal of an executor. The first question to be considered is whether there is an actual or perceived conflict of interest that rises to the level of disqualification by, inter alia, demonstrating a want of reasonable fidelity or an inability to act impartially. In making such a determination, the court must consider all of the circumstances, including the following (non-exhaustive) considerations:
has the executor been reasonably transparent about the existence of their claim?
whether the claim has been quantified by the executor, and the size of their asserted claim if it has been quantified?
if not quantified, is there a reasonable explanation for the executor not doing so?
the passage of time, and the existence of any delay?
whether the other beneficiaries oppose the executor continuing despite the executor’s claim?
whether the executor’s pre-death loan claim creates a legitimate and reasonably held distrust on the part of a beneficiary in the executor’s impartiality?
whether the asserted pre-death loan endangers the administration of the estate into the future? and
whether the executor’s conduct with respect to the asserted pre-death loan hampers the efficient administration of the estate?
Extradition Bail – Bail Prior to Committal for Extradition – The Duration of Pre-Committal Bail Orders – The duration of bail orders in domestic proceedings is addressed in Chapter 6 (Release Orders and Conditions), § 6:2. This involves the application of s. 523 of the Criminal Code, which presents certain challenges. The situation is more straightforward with bail orders under the Extradition Act and reflects the nature of the extradition process in general. Unless set aside or varied on review (see § 14:10, below), any release order is terminated upon committal for extradition. If the person sought is not committed for extradition, they are entitled to be discharged. This is provided for in the wording of s. 29(1) and (3) of the Extradition Act. If the person sought is committed into custody for extradition, s. 30 provides that “the order of committal constitutes the authority to keep the person in custody, subject to an order of judicial interim release”, and “the order of committal remains in force until the person is surrendered or discharged or until a new hearing is ordered under paragraph 54(a)”. Upon committal s. 20(b).
Police Bail – The Accused In Court: Duty to Take the Accused Person Before a Justice – The General Duty – Some have resorted to remedies for failures to comply with s. 503 outside of the criminal police system. In Cirillo v. Ontario, 2019 ONSC 3066, affd 2021 ONCA 353, an attempt was made to certify a class proceeding based on claims of negligence, breach of fiduciary duty, and breach of Charter rights in respect of persons who were arrested and detained for a period of 24 hours or more (as well as related issues, such as cases not being reached, inadequate interpretive services, etc.) from January 1, 2000. The motion judge refused certification for a number of reasons, some having to do with Crown immunity from certain claims, such as negligence. Further, the complaint related to core policy government decisions (involving the allocation of resources) from which the Crown is also immune from liability. More fundamentally, he found that the need to share a common experience of having a specific right violated had to be addressed on an individual basis. The Court of Appeal agreed that this was not a proper case for certification. The Alberta Courts have taken a different path, permitting the certification of a similar class proceedings: Reilly v. Alberta, 2022 ABKB 612, affd 2024 ABCA 270. Beyond the question of whether any class member receives compensation, it will be interesting to see whether this litigation approach achieves systemic change.
Note of Developments in Administrative Law in 2025 – The Supreme Court remained busy in the later portions of issuing a number of decisions that have important implications for the judicial review of administrative action in Canada. Below is brief summary of some of the most notable of decisions.
Jurisdictional Boundaries between Federal Court and Tax Court of Canada – In Dow Chemical Canada ULC v. Canada, 2024 SCC 23 and Iris Technologies Inc. v. Canada, 2024 SCC 24 the Supreme Court clarified the jurisdictional boundaries between the Tax Court of Canada and the Federal Court. The Court’s decisions in both cases rely on distinction between a tax assessment and the Minister of Revenue’s use of discretion. In short, the Court found that the Tax Court of Canada has exclusive jurisdiction to determine the correctness of a tax assessment and the Federal Court has exclusive jurisdiction to review the Minister’s discretionary decisions, including the decision-making process itself (unless the Legislature has provided otherwise). The Court also confirmed that the principles for standard of review laid out in Vavilov apply to tax disputes.
Damages for breach of Charter Rights – In Canada (Attorney General) v. Power, 2024 SCC 26, the Court wrestled with the issues of when to award damages for Charter breaches. The Majority confirmed that the test in Vancouver (City)v.Ward, 2010 SCC 27 is still good law, There is no absolute immunity for legislation later found to be unconstitutional. If the challenged legislation is clearly unconstitutional, or was in bad faith or an an abuse of power, damages against the Crown may be appropriate.
Finally, the Ontario Court of Appeal issued its decision in Khorsand v. Toronto Police Services Board, 2024 ONCA 597 addressed the scope of judicial review. In that decision the Court of Appeal found that a pre-screening background check by the Toronto Police Services Board, at the behest of the Toronto Community Housing Corporation, was a component of the employment application process and was not a public decision. In reaching this decision, the Court of Appeal noted that it viewed the Air Canada factors as playing a “helpful role in focusing the court’s attention and reasoning process”.
The Court based its conclusion that the decision was not sufficiently public to render it subject to review on three principal reasons. First, as noted above, the Court of Appeal concluded that the pre-screening test was “part and parcel of “TCHC’s hiring process The Court of Appeal noted that the pre-screening decision was a “discretionary employment-related decision which draws it within the private sphere.” Second, the Court of Appeal noted that the “decision’s impact on a broad segment of the public”, and in particular the existence of a possible human rights violation, did not make it a public decision. Third, the Court of Appeal concluded that public law remedies were not appropriate in the circumstances. As such the decision was not amenable to judicial review.
Chapter 14 – Sentencing – The Ontario Divisional Court upheld the sanction of revocation imposed for spreading serious Covid-19 misinformation: Trozzi v. College of Physicians and Surgeons of Ontario, 2024 ONSC 6096.
Chapter 15 – Appeals and Judicial Review – The Supreme Court of Canada considered whether the test in Katz Group for assessing the validity of subordinate legislation continues to apply in the post-Vavilov era. The Court held that the Katz Group test of whether a regulatory instrument is irrelevant, extraneous, or completely unrelated to the statutory purpose no longer applies. Instead, the conceptual framework in Vavilov is be used to assess the vires of subordinate legislation: Auer V. Auer, 2024 5CC 64; TransAlta Generation Partnership v. Alberta, 2024 5CC 37.
Chapter 17 – Admission to the Profession – A Court declined to interfere with a ruling that an individual had sufficient good character to be registered as a lawyer despite having sexually abused three young children 10 years earlier: Law Society of Ontario v. A.A., 2024 ONSC 5971.
Chapter 15 – Malicious Prosecution – II. Elements of Cause of Action, 15:9 Lack of Reasonable and Probable Cause – In Lover-Peace v. Moosavi, 2025 BCSC 515, plaintiff and defendant doctor met over virtual medical appointment and following this one appointment, the plaintiff engaged in an escalating campaign of stalking the defendant doctor both at her place of work and online through various Youtube postings. Police interviewed plaintiff and he refused to make a statement and was arrested; charges stayed after plaintiff enters a peace bond. The plaintiff initiated a malicious prosecution claim against the defendant. On the summary judgment motion, the judge concluded that the defendant did not lack reasonable and probable grounds for making a complaint, the malicious prosecution action was dismissed.
Chapter 18 – Professional Negligence – II. Lawyers, C. Elements of Cause of Action, 2. Standard of Care, ii. Specific Kinds of Carelessness, 18:14 Mishandling Non-Contentious Business, Additional Authorities – In Marshall Zaitlen v. Sean Omar Henry and as Estate Trustee for the Estate of Sandy Robinson, 2025 CarswellOnt 2606, the plaintiffs were clients of defendant law firm and the plaintiffs were encouraged to invest in real estate development project and deposit investment funds in law firm’s trust fund. The monies were removed by defendant lawyer’s mother and others who also worked in the firm. The defendant lawyer claimed no knowledge of the misappropriation however motions judge held that the lawyer’s abdication of all control and responsibility for his practice reflected conduct that was so below an acceptable standard expected of a competent lawyer that no expert evidence was required to confirm if reasonable standard of care in practice met.
Chapter 32 – Parties – III. Children, B. Capacity to Sue, Additional Authorities, The Child as Plaintiff – In Van Every (Litigation guardian of) v. Findlay, 2025 ONSC 757, the plaintiff as a young child was severely injured by tractor and left with brain injury. They retained counsel through litigation guardian to claim for injuries but changed counsel. They secured settlement and subsequently, plaintiff commenced professional negligence claim against defendant, first counsel. The defendant brought a motion to remove plaintiff’s counsel as they cannot be both advocate and witness (notwithstanding that plaintiff switched lawyers within the same firm). The defendant’s motion was dismissed.
Party-to-Party Costs – The Courts of Justice Act – Costs to be Fixed or Assessed – Introduction – In judgments rendered in the Alberta Court of King’s Bench the court awarded damages of $165,166,431 with prejudgment interest to the plaintiff against the defendants. The parties were unable to agree on costs. After adjusting its claim to acknowledge the legitimacy of points made by the defendants, the plaintiff sought costs in the amount of $4,801,339.41. In this case the court reviewed the meaning of “reasonable and proper costs”: Remington Development Corporation v. Canadian Pacific Railway Company, 2023 ABKB 591 (Alta. K.B.)
Party-to-Party Costs – The Courts of Justice Act – Costs to be Fixed or Assessed –The Reasonable Expectations of the Parties – Proportionality – The main focus of the jury trial was whether the defendant was liable to the plaintiff under the Occupier’s Liability Act (Ont.). Of particular significance as it related to this matter was the apportionment of liability against the plaintiff. An award of costs that exceeds the amount of damages assessed by the jury might be seen by some as disproportionate. While an award of costs must be proportionate it must also be seen to be reasonable and fair. It must also reflect an amount that the losing party might reasonably have anticipated paying in the event of non-success at trial: Lawless v. Joanovits, 2024 ONSC 1561 (Ont. S.C.J.)
Party-to-Party Costs – Several Plaintiffs – Class actions – Legal Fees –This appeal in the Court of Appeal for Ontario involved the fees to be paid to class counsel following the settlement of a class action concerning unpaid overtime work. Class counsel was a consortium of three law firms. The motion judge awarded class counsel $25 million in fees for obtaining a $153 million settlement over the course of 15 years. After other deductions, this left $106 million to be allocated to the class. The appellant class counsel was requesting a $19 million increase for a total of $44 million in class counsel fees. This amount reduced the class portion of the settlement to $86 million for 31,000 class members. The appeal was dismissed: Fresco v. Canadian Imperial Bank of Commerce, 2024 ONCA 628 (Ont. C.A.).
Party-to-Party Costs – Dismissal and Discontinuance of Actions – Where Plaintiff Discontinues Action – The province of Ontario issued exploration permits allowing the defendant Q Inc., one of the two companies owned by the defendant prospector M, to conduct mining exploration activities in an area near the plaintiff’s reserve. The plaintiff obtained an interim injunction prohibiting M and two companies from engaging in any exploration activities in the area pending determination of an application for interlocutory relief. The interim injunction was later extended as against the two companies, but not as against M. M who was acting on behalf of himself and the companies claimed costs on a substantial indemnity basis the amount of $115,598.60. The court on that application found that parties would bear their own costs on the motion, given the divided success in the matter. The plaintiff sought a new interlocutor injunction against M and his companies. The judge on that motion denied the plaintiff’s requested adjournment and the plaintiff withdrew its application. M sought costs on a substantial indemnity basis in the amount of $44,383,50 plus disbursements. The judge reviewed the issue of costs when an action has been discontinued as well as costs for a self-represented litigant: Ginoogaming First Nation v. HMTK, 2024 A.C.W.S. 1561 (Ont. S.C.J.).
Party-to-Party Costs – Costs Payable by Solicitor – Conduct of Solicitor – The Ontario Superior Court judge had declared a mistrial. The court was now dealing with whether or not the lawyer for the plaintiff should be held personally liable for costs. The mistrial was declared largely as a result of the non-disclosure of a conflict of interest involving the lawyer for the plaintiff, her husband, her husband’s company, and the retainer by her husband’s company of two doctors who prepared medical legal reports for the lawyer’s law firm. This was one of those rare and exceptional cases where the conduct of the lawyer required the Court to exercise its responsibility to supervise the conduct of a lawyer where the conduct was of such a nature that it both frustrated and interfered with the administration of justice. The mistrial was entirely avoidable. Regrettably, in this case, the judge stated that the lawyer’s actions were a complete misunderstanding of what the word candour means. Candour required disclosure of the conflict to the client, to the defendant of the court. Candour required full disclosure of the inflated cost of the doctor’s invoice to the client, the defendants and to the court. None of this happened. This was the rare case where the court exercised its discretion to award costs of the mistrial against the lawyer. To do otherwise would be to countenance such conduct and to potentially have the client pay the mistrial costs which would be patently unfair to the client where his conduct in no way caused the mistrial. Ashrafian v. Kavarana, 2024 ONSC 240; 2024 A.C.W.S. 2060 (Ont. S.C.J.)
Security for Costs – Appeals – General – This decision from the Ontario Court of Appeal is in respect to an appeal from the decision of the Superior Court of Justice reported at 2024 ONSC 1964. The appellant M, appeals from the decision of the judge of the Superior Court of Justice who granted summary judgement in favour of the respondent B, who was M’s former lawyer. Judgement was granted in the sum of $2,850,500 on account of outstanding legal fees. The respondent B applied to the Ontario Court of Appeal for security for costs and security for judgement against appellant M. As the Court of Appeal noted from earlier appeal decisions, the ordering of security for costs is discretionary; a two-step reasoning process is involved. The first question is whether the requirements pf rile 61.06(1)(a), (b), or (c) are met. If so the second question is whether it would be just to order security, considering the circumstances and the interests of justice. Security for judgement is an “extraordinary remedy”. Trying to get money that rests on reserve comes very close, if not crosses over the line into what the Court of Appeal had earlier said cannot be done by virtue of section 89 of the Indian Act. In total, the appellant M was ordered to pay into court security for costs in the total amount of $115,026.90. Bogue v. Miracle, 2024 ONCA 643 (Ont. C.A.)
In Sickel Estate v. Gordy, 2008 SKCA 100, there was a fatal traffic accident caused by employee of the company contracted to provide food service to carnival. The accident occurred while the employee driving truck owned by one of her employer’s partners in convoy was moving to the next carnival location. Since the accident occurred while the employee was performing her regular employment duties, the employer was held to be vicariously accountable.
In John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2020 NLCA 27, the plaintiffs were victims of abuse while resident at orphanage operated by Christian Brothers. They unsuccessfully tried claiming that the Catholic Church was vicariously liable for non-feasance of orphanage’s parish priest in preventing abuses, but no evidence was established. On appeal, the Court of Appeal upheld the trial judge’s determination respecting the Archdiocese’s vicarious liability for the parish priest’s non-feasance but overturned the trial judge’s determination respecting the Archdiocese’s vicarious liability for the Christian Brother’s sexual abuse of appellants when children in the orphanage supervised by the Christian Brothers.
A revised and updated Chapter 20: Motions to Disqualify Counsel for Conflicts of Interest. The updated commentary and case law includes 48 new, recent lawyer disqualification decisions. In addition, Appendix F:22. Model Factum in Support of or in Opposition to a Motion to Disqualify Counsel of Conflicts of Interest.
Year in Review – The Year in Review discusses some of the notable trends and developments in civil litigation in Manitoba from October 2023 to December 31, 2024 with a review of Practice Directions issued by the Court of King’s Bench and Court of Appeal in 2024 and commentary on notable decisions of the Manitoba Courts dealing with various civil procedure issues including: Dismissal for Delay; Costs Awards and Solicitor-Client Privilege.
Manitoba King’s Bench Rules – Rule 19.08 – Default Proceedings-Setting Aside – Generally – The factors generally considered by the Court in a motion to set aside default are: whether the defendant had an ongoing intention to defend; the defendant’s explanation for why defence was not filed; whether the failure to file a defence was willful; whether the motion to set aside was brought with dispatch; and whether there was undue prejudice to the plaintiff. While proof of a meritorious defence is not a pre-condition to set aside the noting of default, it is a relevant factor for the Court to consider in exercising its discretion. Ultimately, the factors into consideration should not be considered in isolation but should be weighed together in the Court’s decision. While recognizing that the circumstances of every case must be analysed, the onus is generally considered to be low when it comes to setting aside default. Schaworski v. Unrau, 2024 MBKB 150, 2024 CarswellMan 334 (man. K.B.), per Patterson Associate J.
Manitoba King’s Bench Rules – Rule 24.01 Dismissal for Delay – Significant Prejudice and Delay – Inordinate and Inexcusable Delay – When assessing delay, the Court must determine whether it has been both inordinate and inexcusable. An assessment of whether or not the delay was inordinate may involve consideration of the nature of the issues in the action, the complexity of the issues, the current status of the litigation as compared to a reasonable comparator and the role of each party in the overall delay. If the delay is found to be inordinate, the onus then shifts to the plaintiff to justify the delay (i.e., a consideration of whether the delay can be excusable). If the delay is found to be both inordinate and inexcusable, there is a rebuttable presumption of significant prejudice. Even if the delay is not inordinate and excusable, the Court may still dismiss a claim in a case where significant prejudice has occurred. In exceptional circumstances, the Court may refuse to dismiss the action even where it finds delay and significant prejudice. Forsythe v. Johnson, 2024 MBCA 104 per Spivak, J.A.
Manitoba King’s Bench Rules – Rule 57.01(2) – Costs – Costs Against Successful Party – The Court’s discretion with respect to costs must be exercised in accordance with the principle and the rules governing the exercise of all judicial discretion – it is not to be exercised in a harsh or arbitrary manner. However, the discretion is unfettered and untrammeled and will be governed by the special circumstances of the case. For the Court to award costs to an unsuccessful party, that party must persuade the court that the proceeding contained some special element to justify such an order. Examples include cases where the successful party engaged in misconduct (such as failure to make proper disclosure). However, courts have also granted costs in cases of significant public interest. Polischuk v. The City of Winnipeg, 2024 MBKB 156 per Martin J.
WP:131 – Professional Misconduct (B.C.) Professional misconduct…represents a marked departure from proper professional practice, but is not necessarily associated with moral turpitude or with intentional wrongdoing.
Gregory v. The Law Society of British Columbia, 2024 CarswellBC 3060, 2024 BCCA 350 (B.C. C.A.) Groberman J.A. (Fenlon and Fitch JJ.A. concurring) at para. 65
Model Code of Professional Conduct, as amended April 2024.
National Discipline Standards, Approved by Council October 14, 2023).
Model Rule on Client Identification and Verification (Adopted by the Council of the Federation of Law Societies of Canada, March 20, 2008; amended December 12, 2008; amended October 19, 2018; amended March 14, 2023).
National Requirement (Amended March 12, 2024; in force January 1, 2029).
Chapter 3 – The Canadian Charter of Rights and Freedoms – In an important Charter case, the Ontario Divisional Court upheld a tribunal’s decision finding a physician guilty of professional misconduct for spreading Covid-19 misinformation. The Court held that the tribunal had properly balanced the physician’s freedom of expression with the statutory objective of protecting the public: Trozzi v. College of Physicians and Surgeons of Ontario, 2024 ONSC 6096.
Chapter 6 – Compliance with Statutory Provisions – The Saskatchewan Court of Appeal upheld a decision finding that a provision in a bylaw requiring notice of an AGM to be served by mail was directory rather than mandatory. As a result, the service of the notice of the AGM by email did not invalidate the results of the AGM: Haas v. The Saskatchewan Veterinary Medical Association, 2024 SKCA 110.
Chapter 8 – Procedural Rights at a Disciplinary Hearing – The denial of an adjournment was upheld even though there was concurrent civil litigation addressing the same issues. The Court found that the tribunal had properly balanced potential prejudice to the member with the public interest in completing disciplinary proceedings: Bauhuis v. Association of Professional Engineers and Geoscientists of Alberta, 2024 ABKB 603.
Mutual Wills – Evidence of Agreement – The marriage of the testator and the defendant was a second marriage for both. The defendant and the plaintiff, the deceased’s child from his first marriage, had a difficult relationship. The testator and the defendant had kept their finances separate and had made new wills which made the other the sole beneficiary with gift overs to their respective children in equal shares. After the testator died the defendant made a new will, revoking prior wills, and leaving the residue of her estate to her biological children. The plaintiff brought an action against the defendant to seek variation of the deceased’s will for failure to provide adequate, just and equitable provision for her. She also sought leave to bring an action against the defendant because she changed her will. The plaintiff’s application was dismissed. The court found there was no evidence that the testator and the defendant had intended to bind each other to mutual wills, saying at para. 37:
37 The doctrine of mutual wills requires there to be an agreement between the parties which satisfies the requirements of a binding contract. The agreement must be proven by clear and satisfactory evidence and it must include an agreement not to revoke the wills: Edell v. Sitzer, 55 O.R. (3d) 198 at para.58, 2001 CanLII 27989 (O.N.S.C.); BrynelsenEstate v. Verdeck, 2002 BCCA 187. When two persons agree to make mutual wills, they agree that once the wills are made that no changes may be made by either party, without the other’s consent, and when one person dies, the surviving party cannot change the disposition made in their will. There must be clear and unequivocal evidence of an enforceable agreement between the parties that the survivor cannot change their will after the death of the first person.
43 The decision of Moyerv. Moyer Estate, 2018 BCSC2225, is similar to the circumstances of this case. Justice Crossin sets out the principles of a mutual will agreement: A mutual will agreement imposes an onerous obligation on the surviving testator, who is left unable to deal freely with their property during the remainder of their lifetime and is compelled to dispose of it in a certain way at their death. For this reason, in order for the court to find the existence of an enforceable agreement, there must be clear and unequivocal evidence, including clarity of terms.
Estate Assets – Pets – Establishing Ownership – An estate trustee applied for a declaration that a dog was owned by the deceased at the time of his death and was therefore an asset of the estate. The dig had been taken by the respondent, who had been in an intermittent relationship with the deceased. In granting the application, the court set out the law relating to pet ownership, saying at para. 24 et seq:
24 Dogs are personal property much like other chattels (albeit indivisible), even when purchased during the course of a relationship. The question is one of ownership, not who wants the dog more, who loves the dog more or who would be the best owner.
25 Traditionally, the question of pet ownership focused narrowly on who paid for the animal. More recent cases have taken a broader approach, looking at the relationship between the parties and the dog and considered an non-exclusive list of factors.
26 The Coates decision [Coates v. Dickson, 2021 ONSC 992, 2021 CarswellOnt 1430] contemplates the following factors:
Whether the animal was owned or possessed by one of the people before the relationship began;
Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
The nature of the relationship between people contesting ownership at the time the animal was first acquired;
Who purchases and/or raised the animal;
Who exercised care and control of the animal;
Who bore the burden of the care and comfort of the animal;
Who paid for the expenses related to the animal’s upkeep;
Whether at any point the animal was gifted by the original owner to the other person;
What happened to the animal after the relationship between the litigants changed; and
Any other indicia of ownership or evidence of agreement relevant to who has or should have the ownership of the animal. [footnotes removed]
4:7 General Rule in Estate Litigation: Costs Follow Event – In Joy Estate v. McGrath, 2022 ONCA 119, 2022 CarswellOnt 1457 (Ont. C.A.), Gillese J.A. commented upon the process to be followed where public policy considerations arise:
The jurisprudence is clear: at first instance, when deciding costs in estate litigation, the court must begin by carefully scrutinizing the litigation to determine whether one or more of the public policy considerations applies. If so, as a general principle, the parties’ reasonable costs are to be paid from the testator’s estate. It is worthy of note that this approach is not a balancing of the public policy considerations against the rationale for costs rules that ordinarily apply to civil litigation. Rather, it is a sequential analysis, the first step of which is to determine whether one or more of the public policy considerations apply. If so, generally the parties’ reasonable costs should be payable from the estate. A departure from this general principle requires justification on the part of the court.
4:15 Special Costs – The court will order special costs in exceptional circumstances where the conduct is reprehensible, which encompasses scandalous or outrageous conduct (such as conduct tantamount to fraud or an abuse of process), as well as milder forms of misconduct deserving of reproof or rebuke: Kirouac Esate, 2024 BCSC 1119, 2024 CarswellBC 1847 (B.C. S.C.)
4:24 Solicitor Appointed as Executor/Trustee – In Re Parkinson Estate, 2024 MBCA 52, 2024 CarswellMan 217 (Man. C.A.), the court awarded $110,139.17 in solicitor and client costs against an executor who was a lawyer. The court was highly critical of the executor’s conduct, including a dispute over compensation which the court viewed as being wholly due to the executor seeking an unreasonable level of compensation and then attempting to bolster his position by issuing invoices for unsubstantial legal services when his executor compensation was questioned.
The Applicability of the Duty of Fairness – Appendix 7A – Case Digest – A section has been added to the Appendices in Chapter 7 – 7A:6.10 Mortgage Brokers. The following case digest has been added:
Professions and occupations – Mortgage brokers – Organization and regulation of profession – Financial Services Regulatory Authority issued notice of proposal to revoke license of applicant mortgage broker and principal – Broker filed request for hearing – Broker’s motion for request to be published on website of authority was dismissed – Broker brought application to quash or amend proposal, and challenge transparency guidance regarding authority to take regulatory action against, as mandamus relief was not available – Portions of application seeking declaration with respect to publication of proposal were not struck, leaving that issue open to Divisional Court – Broker brought motion to vary order, and to restore application regarding relief sought – Motion dismissed – Trial judge correctly held that it was plain and obvious that application to strike or amend proposal could no succeed as it was premature – Tribunal hearing provided adequate alternative remedy, and broker would get full and fair hearing de novo to resolve any alleged procedural fairness issues – Exceptional circumstances bring rule of law into disrepute, going beyond breaching procedural fairness or acting without jurisdiction, were not present – Balance of judicial review application dismissed – Decisions at issue were not statutory powers of decision and were not amenable to judicial review – To be subject to judicial review decision must affect legal rights or obligations – Although applicants had interest in their reputation, publication of allegations by regulator did not give rise to right to judicial review: Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Office), 2024 CarswellOnt 12109, 2024 ONSC 4464 (Ont. S.C.J. (Div. Ct.)).
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