Chapter 2 – Assault and Battery – IV. Remedies – 2:22 Compensatory Damages – In Schuetze v. Pyper, 2021 BCSC 2209, 2021 CarswellBC 3860, the plaintiff was the ex-spouse of the defendant, and during the marriage the plaintiff was subjected to a serious physical assault by the defendant that resulted in sustained injuries. The defendant received an absolute discharge in respect of the criminal charges however the plaintiff had played no role in the construction of the Agreed Statement of Facts, contrary to the proceeding. After a detailed review of the facts surrounding the incident, the trail judge concluded that the plaintiff had suffered a serious battery at the hands if her husband and awarded non-pecuniary damages in the amount of $100,000 as well as loss of costs of future care in the amount of $20,000.00, lost income in the amount of $239,000, and future earning capacity in the amount of $450,000.00.
Chapter 16 – Negligence (General) – II. Standard of Care, 2. Unreasonable Risk – 16:18 Social Importance – In Mackie v. Drewes, 2025 ABCA 218, 2025 CarswellAlta 1384, a guest at a cottage deliberately loaded and discharged a rifle at the other guests. The owner of the rifle did not breach the standard of care associated with the handling and operation of the rifle. The fact that the individual causing the harm intentionally fired the weapon, while the owner had specifically unloaded the gun and left it in a location where it was not susceptible to accidental discharge. A reasonable person would not have anticipated the individual’s criminal act.
Chapter 20 – Nuisance – IV. Remedies – 20:20 Injunctions – In Lupuliak v. Condominium Plan No 8211689, 2022 ABQB 65, 2022 CarswellAlta 249, a plaintiff in condominium installed a smart doorbell on her front door facing the condominium common areas. The smart doorbell was motion-sensitive and could record audio and video which made recordings of neighbours’ actions. The condominium corporation required that the plaintiff remove the doorbell as she did not secure prior approval for installation as per condominium by-laws. The plaintiff sought injunction preventing removal and defendants seek injunction removing the doorbell. The surveillance of other owner’s actions and the use of video by the plaintiff to lodge complaints against the owners validates the owner’s concerns, and the defendants’ injunction was granted.
Mutual Wills – Revocation – By Subsequent Will – Situs – This case concerned the validity of a joint will made by a married couple in Germany and whether it was revoked by a subsequent will made by one of the spouses in British Columbia. In 1995, the testator and his spouse, citizens of Germany with permanent residence in Canada, made a joint will in Germany naming the spouse’s parents as “universal heirs of our entire estate”. The will was executed by the testator and the spouse but not witnessed. In 2019, the spouse made a will in British Columbia revoking all prior dispositions and naming the testator as her sole heir. The will was executed by the spouse but not witnessed. The spouse passed away soon after. Following the testator’s death in 2022, an individual who claimed to have lived with him in a marriage-like relationship in the final years of his life brought an application for a grant of administration without will annexed. The spouse’s mother obtained a certificate of inheritance from a German court identifying her as the sole heir of the testator’s estate based on the 1995 will. The spouse’s mother then instructed a lawyer in B.C. to bring an application for proof in solemn form of the 1995 will. The application was dismissed. Based on an expert opinion, the court found that the 1995 will had been made in accordance with German law, which did not require it to be witnessed, and met the requirements for formal validity. While the 2019 will was also formally valid under German law, B.C. law applied to the issue of revocation. It found that although the 1995 will had not been revoked by the 2019 will according to German law, which required revocation of a joint will to be made by a notarized declaration to the other spouse, it had been revoked by the 2019 will according to B.C. law. The latter was the jurisdiction in which the spouse was then domiciled and the estate’s real property was located. The 1995 will was therefore found to be of no force or effect once it had been revoked by the spouse prior to the testator’s death. The court, accordingly, found that he had died intestate: Siebert Estate (Re), 2025 BCSC 617, 2025 CarswellBC 1034 (B.C. S.C.).
Estate Trustee Removal – Delay – Whether Delay Prejudiced Estate – On an application brought to seek their removal, inter alia, for delay in administering an estate, the estate trustees argued that the applicants had not been prejudiced by the delay. The primary asset of the estate was a piece of real property and the estate trustees submitted that the value of the property increased significantly since the death of the testator and this was a benefit to the beneficiaries. The court found that “this argument [struck] a hollow chord”. It noted that one of the beneficiaries had passed before he received his share of the residue and, given his illness, could have used his inheritance to make his final years more comfortable. Second, it observed that “an estate trustee’s mandate [had] never been to hold the administration of an estate hostage in the hopes of increasing its value” (para. 31): O’Neill v. O’Neill, 2025 ONSC 2892, 2025 CarswellOnt 7488 (Ont. S.C.J.).
Removal of Estate Trustees – Legal Costs of Appeal – Estate Trustees Personally Liable – Appeal Unnecessary and Against Estate’s Interests – The appellants were estate trustees under a will. The deceased’s son was the only beneficiary of the estate. He sought their removal as estate trustees alleging that they had not informed him that they planned to sell the family cottage, made it difficult for him to retrieve his belongings from the property, transferred the cottage to a third party rather than to him as part of the estate and as a result triggered a large and unnecessary capital gains tax. The Court of Appeal upheld the motion judge’s decision to remove the trustees. It noted her finding that the son was the only beneficiary, that he had lost all trust in the appellants for the reasons raised in his allegations and, as the interests of the beneficiaries must be the primary concern of the court, it was apparent that the appellants should be removed. The Court of Appeal also found that there was ample support for the motion judge’s finding that, going forward, the appellants would likely have mishandled the estate. The Court of Appeal then went on to order that the appellants pay $21,000 in costs in their personal capacity upon finding that their appeal was unnecessary and against the estate’s interests: MacBeth Estate v. MacBeth, 2025 ONCA 360, 2025 CarswellOnt 6999 (Out. C.A.).
Estate Trustee – Duty to Account – Where Assets Held Jointly with Deceased – An estate trustee gave an accounting but did not disclose any of the joint assets that she held with the deceased other than a GIC for $158,030.19, which she purported to pay out voluntarily as though under the will because her mother had expressed this wish. Her argument was that the joint assets were not estate assets and thus did not need to be disclosed. The court did not accept this argument. It found that, as estate trustee, she had an obligation to disclose all assets the deceased held jointly with others, including herself. It noted that that counsel for the trustee had acknowledged the presumption of a resulting trust in the case of the joint assets but had submitted that, while the presumption can be rebutted, only a court could make that final determination. The court questioned, however, how a determination could be made if interested parties were not even aware of the joint assets. It went on to hold, moreover, that if there is a rebuttable presumption that an asset belonged to the estate, it should be included at least on a tentative basis in the initial accounting and noted that that is now required under recent amendments to the Surrogate Rules, Alta. Reg. 130/1995, rule 26(1) and form GA2 (effective January 1, 2024): Syryda Estate v. Rathwell, 2025 ABKB 285, 2025 CarswellAlta 1075 (Alta. K.B.).
Conflicts of interest arise in both civil and criminal matters, requiring similar analysis for identification and resolution. Even though the roles of the Crown prosecutor and defence counsel may be different from civil litigators, there are still certain common elements that remain the same, particularly in the litigation context such as when Crown prosecutors return to private practice or defence counsel represent more than one client or must cross-examine a former client, and when a civil action is taken following criminal proceedings. In addition, as is the situation with other private practitioners, defence counsel and Crown prosecutors can face personal conflict issues.
Despite similarities in the court’s approach to conflicts on civil and criminal matters, there are significant differences. The fairness of the trial and the accused’s fundamental rights are major concerns for the courts, often leading to a more stringent approach to conflicts of interest in criminal law…Most importantly, there are costs to the administration of justice if criminal lawyers are perceived to have acted improperly or have received confidential information. In addition, irreparable harm can result if the courts apply conflict of interest principles too liberally and interfere with the right to counsel or make decisions that undermine the public’s confidence in the justice system. These decisions on conflicts in criminal matters required probity, reason and equanimity with the values to be protected being fairness, impartiality and the independance of all participants in the system of justice.
With respect to conflicts of interest, therefore, the need to ensure fair play and protect the public interest mean that appearances are important and that any hint of impropriety brought about as the result of differing interests us unacceptable.
Party-and-Party Costs – Definition – Generally – The judge in this case in the Superior Court of Justice for Ontario dismissed a motion by the plaintiffs for summary judgment against the defendant on their claim for damages of $113,000. The judge granted the summary motion of the defendants and dismissed the action. The purchasers’ claim was for the return of a “revival fee” on an expired agreement of purchase and sale for a home built by the defendant. The defendant sought its costs of the motion and the action which costs total $57,953.69 inclusive of taxes and disbursements. Most of this amount, namely $50,269.50, was substantial indemnity fees for the period after the defendant served its offer to settle. The defendant’s partial indemnity costs for the period before it made its offer was $855. The rest was taxes and disbursements. The defendant argued that its offer of $1000.00 plus costs of $750 should have been immediately accepted. The purchasers say that the defendants’ costs should be no more than $15,000. The goals of an award of costs are not limited to indemnity. There are broader, discretionary considerations involved, which are articulated in rule 57.01 of the Rules of Civil Procedure (Ont.). In discuss ing rule 51.07(7) of the Rules of Civil Procedure, the judge stated… “the court is to “…. devise and adopt the simplest, least expensive and most expeditious process for fixing costs… .“. The general principles for the exercise of my discretion in determining costs are set out in rule 57.01(1). Considering all of the factors the judge found a fair and reasonable amount that should be paid by the purchasers to be $30,000 for costs all-inclusive: Correa v. Vaistar Homes (Oakville Sixth Line) Inc., 2024 ONSC 5184, 2024 CarswellOnt 14131, 64 R.P.R. (6th) 333 (Ont. S.C.J.).
Party-and-Party Costs – Several Defendants – The Hague Convention – In April 2024, the trial judge, in this case before the Court of King’s Bench of Alberta, following a hearing of the father’s application under the Convention on the Civil Aspects of International Child Abduction, 1343 UNTS 89, Can TS 1983 No 35, 19 ILM 1501 (“Hague Convention”), found in favour of the father’s application. The father sought costs against the mother. The father requested costs on a full indemnity basis in the total amount of $41,426 or alternatively, party-party costs. As the trial judge noted, “The starting point for costs award in a Hague Convention proceeding is Article 26. The court notes: “Article 26 expressly provides the court authority to award costs outside those ordinarily provided for in family law litigation under the Rules of Court. However, the word “may” in Article 26 reinforces the discretionary nature of the costs award in Article 26. The discretion granted in Article 26 is broad. The broad discretion under Article 26 to order costs must be exercised judicially.” The judge then addressed costs principles in Alberta. The judge confirmed that Alberta courts have considerable discretion in setting reasonable and proper costs under rules 10.29, 10.31, and 10.33 of the Alberta Rules of Court. In this case, the judge found that there was an imbalance of power and significant financial disparity between the parties. In the judge’s view, the significant imbalance of power and means warranted a cost award that would achieve a more equitable result. The judge concluded on the balance of probabilities that this was not an appropriate case for costs on a full indemnity or solicitor-client basis under the rules. The judge did not find conduct of the mother that would justify the higher costs award. The judge also did not find that the father’s offer to settle satisfied the provisions of the rules. The judge found that the mother’s limited financial circumstances was a relevant factor among others in the rules and considered structuring a just and equitable costs award in this case. In the end, the judge awarded the father’s 60 % of his Canadian legal fees. The judge denied the father’s United States legal fees. The judge also denied the father’s claim for trial attendance costs and only allowed a portion of the travel expenses for return of the children. The judge allowed the mother to pay the costs award at the rate of $1000.00 a month: LY v. RY, 2025 ABKB 12, 2025 CarswellAlta 43, 11 R.F.L. (9th) 350 (Alta. K.B.).
Summaries of Representative Oppression Cases – Failure to Comply with Corporate Governance Requirements – Jahnke appealed from the Remedy Judgment on the basis he remedy ordered was inadequate and the only remedy that would be appropriate is a buy-out of her shares at a valuation of $1.9 million based on a liquidation value of the Company’s sole asset, less the value of the preferred shares and liabilities. Justice Griffin did not consider it a valid complaint that the judge decided on a remedy of his own making as opposed to choosing a remedy of his own making as opposed to choosing a remedy that matched the submissions of one of the parties. The judge had wide discretion under the BCA to fashion an appropriate remedy, In a case of this nature, a judge is not required to accept one of two proposals for a remedy as a binary choice between party A’s or party B’s proposed remedy. Nor is a judge required to run each permutation and combination of possible remedies by the parties before deciding what is appropriate. Justice Griffin explained that the overall problem with Jahnke’s position was that she never varied from seeking a remedy that would match what she asserted were her expectations, yet the judge concluded in the Liability Judgement that those expectations were not reasonable. Justice Griffin explained that Jahnke failed to appreciate she made arguments before the judge and the judge considered them, but in the end the judge’s conclusions as to the oppressive conduct were limited to two things: the failure to produce audited financial statements and the failure to organize and hold proper AGMs. There was no basis for interference with the judge’s refusal to conclude that other conduct was oppressive. The judge ordered a remedy that matched the oppressive conduct he found. Jahnke had not shown the judge erred in the exercise of his discretion: Jahnke v. 436537 B.C. Ltd., 2024 CarswellBC 2133, 2024 BCCA 276 (B.C.C.A.)
Summaries of Representative Oppression Cases – Mismanagement – The parties separated on March 24, 2021. Both parties’ incomes were principally derived from their jointly owned farming businesses. They equally owned a layer (egg) farm that they operated through a partnership. They also equally own a broiler (chicken) farm that they operated through a corporation. The Applicant and the Respondent were equal shareholders in and were the two sole directors of the Corporation. The Respondent claimed that the Applicant violated his reasonable expectations as a director and shareholder of the broiler farm Corporation. Justice Petersen was satisfied that the Applicant had exercised her powers as a director of the Corporation in a manner that was oppressive, or unfairly prejudicial to, or that unfairly disregarded the Respondent’s interests. Justice Petersen concluded that the Respondent had established his entitlement to equitable remedies for oppression and for the Applicant’s breach of her fiduciary obligations to him as a business partner. However, some of the remedies sought by the Respondent went beyond what was necessary to satisfy his reasonably held expectations, protect his legitimate business interests, deter fiduciary faithlessness, and preserve the integrity of the parties’ fiduciary relationship. In particular, the Respondent’s request for an order that the Applicant take no step in the management of the layer farm without consulting and obtaining his prior consent for any business decision, including all payments and receipts, was impractical to the point of being unworkable. The evidence suggested that the Applicant’s administrative decision-making authority should only be curtailed in respect of transactions involving her family members and payments made to herself. Similarly, the Respondent’s request for an or der entrusting him with the primary financial management of the broiler farm Corporation would not be practical in the current circumstances, in which money regularly flowed be tween the two businesses. Realistically, until the parties’ interests in the two farms were disentangled, they needed to be managed by the same individual. The Applicant must be transparent in her decision-making and must not be permit ted to engage in business transactions with family members without the Respondent’s consent. The evidence did not suggest that she had acted contrary to the businesses’ best interests in dealings with arm’s length parties: Stickney v. Stickney, 2024 CarswellOnt 9483, 2024 ONSC 3581, 2024 A.C.W.S. 3214, 3 R.F.L. (9th) 134 (Ont. S.C.J.).
Appendix IF. Issues in Focus – Social media has proven to be a broadly-accessible platform for sharing content instantaneously, and on a global scale. For professionals, it can also serve as a too-convenient method for potentially running afoul of regulatory parameters touching upon advertising, professionalism in communication, constraints on off-duty conduct, and similar concerns. The interplay between professional regulation and the use (or misuse) of all type of social media is a nascent legal issue. Although the case law to-date has been scant, this memo addresses some of the current developments in this area, largely through illustrative rulings by disciplinary committees.
Words and Phrases – Conflict of Interest – A conflict of interest is an interest that gives rise to a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s duties to another current client, a former client, a third person, or the lawyer’s own interests: Neil at para. 31; Code, Chapter 1, Rule1.1-1: 0928772 B.C. Ltd. v. Ross (2024), 58 B.L.R. (6th) 31, 2024 BCSC 1436, 2024 CarswellBC 2286 (B.C. S.C.) at para. 229 Jackson, J.
Words and Phrases – Litigation Privilege – …litigation privelege…exists in the context of anticipated or actual litigation and applies to communications for the purpose of the dispute…: Gray v. 1534 Harwood Street (St. Pierre) Ltd. (2024), 2024 CarswellBC 1244, 2024 BCSC 742 (B.C. S.C.) at para. 11 Gomery J.
WP:79 Conduct Unbecoming – Nova Scotia – In summary, under Regulation 9.1.3(a), “conduct unbecoming” extends to personal or private conduct that tends to bring discredit upon the legal profession. If one or more of items (i), (ii), (iii) is shown, that is “conduct unbecoming”. If none is shown, then proof of other personal or private conduct that tends to bring discredit upon the legal profession may establish “conduct unbecoming”: Fraser v. Nova Scotia Barristers’ Society (2024), 2024 CarswellNS 551, 2024 NSCA 63 (N.S. C.A.) at para. 31 – Bourgeois, Fichaud and Derrick, JJ.A.
IF:32 – Challenges to By-Laws in the Professional Regulatory Realm – In the sphere of professional regulation in Canada, challenges to a regulator’s by-laws are relatively infrequent. Nonetheless, they are guided by well-established principles that reviewing decision-makers must apply, especially when that review involves assessing whether an impugned by-law overreaches a regulator’s powers, or else impinges on a professional’s right to procedural fairness. In recent years, there have been several noteworthy decisions in this area. These have addressed important topics such as the nature of the notice that must be given to members of various professions by their regulators, and the scope of permitted regulatory oversight on member conduct. This Memorandum highlights some of those recent cases, after giving a brief overview of the established law on by-law challenges in the Canadian professional regulatory context.
Appendix IF – Issues in Focus – Human Rights Issues in Professional Regulation – Part Two: Discipline and Accredition – In the realm of professional regulation, human rights issues can arise in numerous contexts. One very common area of focus is the impact of potential human rights-based discrimination—under either human rights legislation or the Charter—on applicants as part of their individual accreditation and registration processes. This topic was addressed in the first of this two-part Memo, titled “Human Rights Issues in Professional Regulation- Part One: Accreditation and Registration”. However there are other issues in the same vein that are worth noting, specifically:
Human rights concerns in the disciplinary process; and
Human rights in connection with the accreditation of those educational institutions that train professionals in the first place.
In this second part of the Memo, these two narrow topics will be explored in Part I and Part II, respectively.
Party-and-Party Costs – Inherent Jurisdiction as to Costs – Interim Costs – Interim costs, also referred to as advance costs, are, essentially, costs payable in advance, since they are intended to provide funding to the end of the litigation. In this case before the Superior Court of Justice for Ontario, the defendant, the Attorney of Canada, brought a motion seeking leave to examine three expert witnesses before trial. The parties resolved the motion in all respects. The only issue left for the judge was to adjudicate the quantum of the payment of interim costs by Canada to the plaintiff and costs of the motion. The judge concluded that the quantum of interim costs in this case ought to negate any financial prejudice caused to the plaintiff as a result of having to conduct these examinations before trial. In the judge’s view the prejudice at issue was the increased costs from work that would necessarily have to be duplicated, and the burden of having to incur the expenses for these examinations before they would otherwise be incurred. In the judge’s view interim costs of $150,000 was fair and reasonable in the circumstances: Six Nations of the Grand River Band of Indians v. The Attorney General of Canada and His Majesty the King in Right of Ontario, 2024 A.C.W.S. 2954 (Ont. S.C.J.).
Party-and-Party Costs – Special Provisions as to Costs Disbursements – General – This case in the British Columbia Supreme Court involved two separate costs decisions. The first involved a decision on disbursements which is discussed here. The court noted that Supreme Court Civil Rules (SCCR) 14-1(5) requires an assessing officer to determine which disbursements were necessarily or properly incurred in the proceeding and a reasonable amount for those disbursements and set out the applicable principles to be applied on an assessment of disbursements have been summarized in the case law. The court noted that the plaintiff was self-represented at the assessment of costs and had been for some time prior to trial. “During the course of the assessment of costs, it was clear that the plaintiff did not understand what constituted a proper disbursement. Also, where the tariff provided for a range of units claimable, the plaintiff consistently claimed the maximum amount regardless. As a result, the plaintiff’s views concerning his claim for costs were completely unrealistic. This combination of factors made the potential for settlement of the plaintiff’s bill of costs illusive at best.” [para.9]. Further, if the tariff items representing the assessment of costs including a half day for the prehearing conference and two days for the assessment of costs were removed from the equation, then the defendants did beat their offer to settle the plaintiff’s bill of costs. The assessment officer agreed with the submissions of the defendants that the reduction they sought was appropriate in the circumstances: Emond v. British Columbia (Attorney General), 2024 A.C.W.S. 1641 and 2024 A.C.W.S. 2471 (B.C.S.C.).
Security for Costs – When Security will be Ordered – Another Proceeding Pending for the Same Relief; Unpaid Costs of the Same or Another Proceeding – Unpaid Costs of the Same or Another Proceeding – This was a motion in the Prince Edward Island Court of Appeal for security for costs in the proceeding and costs in the Court of Appeal. Judgments or orders against the appellant for costs had not been paid. The motion was granted. The sum of $22,752.62 was ordered as security for the cost of the proceeding and security for the costs of appeal. The court noted that security for costs of the proceedings is not routinely granted and some justification must be offered by the moving party. The justice of the case required that costs of the proceeding also be posted in this matter. The underlying action related to a claim regarding a landlord/tenant dispute respecting commercial premises. Both parties asserted that the other party failed to comply with the terms of the lease. The motions Judge awarded costs in the amount of $10,652.62 to the landlord. The tenant appealed from both the decisions and as well the award of costs. The court reviewed the legal principles that should be considered when determining if security for costs should issue. In this case, the judge was satisfied that this was an appropriate case to award security for costs in both the appeal and for the costs awarded by the trial judge for a multitude of reasons. The judge was satisfied that there was good reason to believe that the appeal had all the hallmarks of being frivolous and vexatious. “Frivolous and vexatious” has no defined meaning in the Rules but all courts, including this court consistently treat the terms in much the same manner. A frivolous appeal has been denoted as one that is “devoid of merit” or has “little chance of success”. A vexatious appeal includes one taken to “annoy” the party opposite or to conduct an appeal in a less than diligent manner. It may also include a failure to comply with the Rules, court orders and costs orders”: The Little Poultry Company v. Kris Taylor, 2024 ACWS 2692 (PECA).
Assessment of Costs – The Assessment Officer – Objections to Assessment; Review of Assessment; Certificate of Assessment – Objections to Assessment – The applicant, in this decision in the Ontario Superior Court of Justice, moved to set aside the assessment order of the assessment officer who upheld the account of the applicant’s former lawyers in full after a four-day hearing. The lawyers moved to dismiss the applicant’s motion and to confirm the assessment order arguing that the applicant’s failure to make objections to the assessment decision pursuant to rule 58.10 of the Rules of Civil Procedure (Ont.) meant that there was no jurisdiction to consider the applicant ‘s challenge to the order. The assessment officer delivered reasons upholding the entirety of the lawyers’ bills. The court noted that the ability to challenge the decision of an assessment ordinarily depends on the delivery of objections. In this case, the applicant did not deliver objections to the assessment officer’s decision. The judge also disagreed with the submission of the applicant that her challenges to the assessment officer’s decision were not suited to the objection process. The objection process is one that is, in part, designed to allow both reconsideration of issues and the issuance of supplementary reasons to cure any insufficiency. The court also dud not see the need to call expert evidence on the standard of care before advancing any criticisms of counsel’s skill in the context of an assessment of an account. To demand expert evidence as a prerequisite to arguments about the lawyer’s performance would be to risk making the assessment procedure entirely inaccessible to clients of modest means. The court granted the lawyer’s motion to confirm the certificate of assessment: Atkinson v. Whaley Estate Litigation, 2023 ONSC 1006 (Ont. S.C.J.).
Appendix IF 9 – The case law supports a variable standard of care in products liability negligence that increases in accordance with the danger that the product poses to the ultimate consumer. However, despite the presence of a limited but perceptible shift in the standard of care, Canadian products liability law remains rooted in negligence and courts in Canada have continued to reject a move to strict and absolute liability.
Appendix IF 14 – What is considered a rural premises for the purpose of benefitting from this lower standard of care is a question of fact that should be analyzed in terms of the current condition of the premises, and not in terms of its zoning designation or the mere fact that it is within the bounds of a municipality. The activity must be something in the nature of a sport or activity that, though undertaken gratuitously, one could envision being charged a fee to engage in. Courts have considered whether the fact that a premises is rural or whether the activity on the premises is recreational will affect the appreciation of the standard of care that occupiers owe to users of their property. The Supreme Court in Waldick v. Malcolm, [1991] 2 S.C.R. 456 (S.C.C.) found that, in analyzing whether an occupier had behaved reasonably in the circumstances, the fact that the location was rural should be considered.
Appendix IF 16 – A plaintiff in a defamation action is required to prove three elements, one of which is that the defendant published a defamatory expression – generally referred to as the publication rule. While the publication rule is well settled, the proliferation of online platforms has forced the courts to adapt and modify the traditional publication rule when applied to defamation claims involving the internet – known also as, ‘internet defamation’. In that context, the Supreme Court of Canada (“SCC”) and subsequent jurisprudence has developed a modern, more nuanced approach which on recognizes deliberate – rather than passive – acts as satisfying the first component of the publication rule.
In Pyke v. Tri Gro Enterprises Ltd. (2001), 148 O.A.C. 307, highly offensive odours from composting from the defendant’s mushroom farm constituted nuisance in a rural neighbourhood. Most owners used the land primarily for residential purposes. The legislation did not bar the plaintiffs’ common law nuisance action. Absent special circumstances like those existing in present case, nuisance complaints arising from agricultural operations generally were brought first before Normal Farm Practices Protection Board before bringing action in court. However, the defendant’s operation was not protected as “normal farm practice” because composting initially was not carried out properly and the defendant commenced operations in an area where the nuisance it produced was completed out of character. It fundamentally changed the rural environment the plaintiffs previously enjoyed; the defendant also violated the Environmental Protection Act for period of time.
In Davis v. Sutton, 2017 ONSC 2277, mature cedar trees between the parties’ properties interfered with the defendant’s ability to fence his property for the safety of special needs child. The condition and location of trees required the fence to be 6-8 feet inside lot line and substantially interfering with use and enjoyment of property. After the plaintiff persistently withheld consent to cut or replace the trees, the defendant cut those on his property. The Forestry Act does not prohibit a party from self-help action where boundary tree is a nuisance. The plaintiff co-owner was unable to unreasonably refuse consent to cutting; the action was dismissed.
In Youssef v. Misselbrook, 2020 ONCA 83, as a result of donkeys escaping from a rural property, the plaintiff, a motorcyclist, suffered serious injuries. It was determined that the party responsible for allowing the donkeys to escape created a public nuisance on the highway.
This release features a rewritten and revised Chapter 3, aptly renamed “The Legal Framework”. The updated commentary includes references to academic literature, provincial and territorial codes of conduct, and case law and legislation specific to conflicts of interest. The Chapter also highlights broader conflicts of interest issues in Canada, the U.K., the U.S. and Australia, and in European civil law contexts.
Standard of Review of Administrative Decisions that Infringe Charter Rights
In York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, the Supreme Court addressed two main issues. First, whether the Charter applies to school boards, and second, the standard of review of administrative decisions that infringe Charter rights. On the first issue, the Court found that the Charter applies to school boards.
The underlying facts involved a school principal accessing two teachers’ computers. The teachers received reprimands based on what the principal found on their computers. The union grieved the reprimands. The arbitrator dismissed the grievance. While acknowledging that the teachers had a reasonable expectation of privacy, the arbitrator also found that it was diminished in the circumstances.
The union sought judicial review. The Divisional Court applied a reasonableness review to the arbitrator’s decision. The Court of Appeal concluded that section 8 was engaged, even though it was not argued before the arbitrator, and that as such the standard of correctness applied.
The Supreme Court agreed but was split on the standard review to be applied to the arbitrator’s application of section 8 (or lack thereof). The majority found that correctness applied. The minority applied reasonableness. In reaching their conclusion, the majority held that “whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis – is a constitutional question.” Relying on Vavilov, the majority wrote that these types of constitutional questions require a “a final and determinate answer from the courts.”
In applying the reasonableness standard, the minority find that the privacy rights at issue were heavily dependent on the “specific factual and statutory context.” Also relying on Vavilov, the minority noted that not all constitutional matters will require a final and determinate answer, and that those that do not require such an answer will fall outside the exception to the presumption of reasonableness review. Given the specific factual and statutory circumstances in this matter, this matter did not require a correctness review. As such, the minority concluced that reasonableness should apply.
Appellate Review of Treaty Rights
In Ontario (Attorney General)v. Restoule, 2024 SCC 27, the Supreme Court addressed a number of important issues, including the appropriate standard of appellate review of historic treaties between the Crown and First Nations communities. The Court found that the standard of correctness should continue to apply. In reaching this conclusion, the Court held there were at least two reasons why, as a matter of legal policy, the interpretation of historic treaties should be subject to a correctness review. First, treaty rights are constitutionally protected and engage the honour of the Crown. The Court noted this conclusion was consistent with its decision in Vavilov where it held that the correctness standard applied to constitutional questions including “the scope of Aboriginal and treaty rights under section 35 of the Constitutional Act, 1982.” Second, the “treaty interpretation has significant precedential value because it concerns enduring, multi-generational compacts.”
Notwithstanding the conclusion that the interpretation of an historic treaty right is reviewable for correctness, the Court also found that “the factual findings underpinning that interpretation” are reviewable only for palpable and overriding error. This conclusion is consistent with Court’s decision in Housen.
Standard of Review of Regulations
In Auer v. Auer, 2024 SCC 36 the Supreme court clarified that the standard of review applied to challenges to regulations is, as required by Vavilov, reasonableness. In reaching this conclusion, the Supreme Court departed, in part, from its previous holding in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64 where the Court had held that regulations “must be “irrelevant”, “extraneous” or “completely unrelated” to the statutory purpose to be found to be ultra vires on the basis of inconsistency with statutory purpose. In departing from Katz, the Court re-iterated that Vavilov provided a comprehensive approach to judicial review, that it established a presumption of reasonableness review, that there was no exception to the presumption of reasonableness in this case, that a “robust reasonableness review is sufficient to ensure that statutory delegates act within the scope of their lawful authority” and that all of these considerations lead to the conclusion that “Vavilov’s robust reasonableness standard is the default standard when reviewing the reasonableness of subordinate legislation.”
TransAlta Generation Partnership v. Alberta, 2024 SCC 37 is the companion case to Auer v. Auer. At issue in TransAlta was the standard of review of discriminatory regulations. Specifically, the Court was asked to address the question if whether the 2017 Alberta Linear Property Assessment Minister’s Guidelines (2018) issued by the Minister of Municipal Affairs under Municipal Government Act, R.S.A. 2000, c. M-26 were ultra vires the Minister. The Linear Guidelines excluded coal-fired electricity generation facilities scheduled to be phased out by 2030 from being able to claim an accelerated depreciation of value of these facilities for municipal taxation purposes.
The Court concluded that the standard of review is reasonableness, as required by Vavilov. In applying the reasonableness standard, the Court held that “reviewing the vires of subordinate legislation is fundamentally an exercise of statutory interpretation to ensure that the delegate has acted within the scope of their lawful authority under the enabling statute.” In this case, the Court concluded that that the Linear Guidelines were discriminatory (in administrative sense) but that the discrimination at issue was statutorily authorized. As such, the Court also concluded that the Linear Guidelines were consistent with the purposes of the MGA.
Chapter 26 – 26:20 Decision and Reasons – Costs – In a 2024 case the Ontario Law Society Tribunal Hearing Division significantly reduced the Law Society’s claim for costs after a 21-day hearing in which the Law Society made 61 allegations of professional misconduct but proved only nine of them. The Respondent, a licensed paralegal, was found guilty of breaching her duty of integrity and her licence was revoked. The Hearing Division found that the eight additional allegations that were established were not necessary to the decision on penalty and that the Respondent should not be required to pay the costs associated with them, as the Law Society’s decision to proceed with them was inefficient considering the high likelihood of success on the breach if integrity allegations. The Hearing Division held that a licensee should not be responsible for unnecessary costs. The costs award of $10,000 payable over five years was also informed by the Respondent’s limited income.
Testamentary Document – Legal Effect of Probate – Binding of 3rd Parties – Almost two years after the issuance of the Certificate of Appointment of Estate Trustee with a Will (CAETW), certain beneficiaries initiated a negligence action against the solicitor who drafted the deceased’s will for negligence in failing to give effect to the latter’s intentions in the will. Another two and a half years later, the plaintiffs also filed an application for directions seeking a declaration that the intestacy provisions under the Succession Law Reform Act (Ontario) governed the distribution of the residue of the deceased’s estate. The application was dismissed. In coming to its decision, the court provided a number of observations regarding the legal effect of probate, saying at paras. 17 et seq.:
17 Probate is the process by which a will’s validity is determined. When executors named in the will apply for probate, they must establish that (1) the testator satisfied the statutory age requirement to make a will; (2) the will was executed in accordance with the statutory requirements and has not been revoked; (3) the testator knew and understood the contents; (4) the will was not affected by mistake; and (5) the testator had testamentary capacity. 18 The Court’s jurisdiction in matters of probate is inquisitorial. The court’s function and obligation are to ascertain and pronounce which documents constitute the testator’s last will. The granting of probate does not bind only the parties to the proceeding; unless and until probate is set aside, it operates in rem and can affect the rights of third parties. 19 If the application is not contested and the will appears in good order, some of the matters required to be proved will be presumed. However, if probate is contested, those opposing it may argue that the will fails to meet one or more of the required conditions. A will cannot be probated if the testator did not know and understand its contents. In cases where probate is challenged on the grounds that the testator did not know or understand the will’s contents, the propounders of the will bear the burden of proving that the testator knew and approved of the contents at the time it was executed. 20 When probate is granted, the court certifies that the specific writings constitute the deceased’s will and that the individuals named as estate trustees have the authority to act on behalf of the testator’s estate. 21 Subject to the remedies of revocation and rectification, a grant of probate is conclusive regarding both the appointment of the grantee as executor and the validity and contents of the will. This conclusiveness means that unless the grant is revoked, no one can challenge the identity of the executor the testator’s capacity, or assert that the will was forged, as such actions would contravene the seal of the court. 22 Admitting documents to probate as testamentary documents does not prevent the court from construing them to determine their true effect. If a question arises regarding the meaning of a will, the superior court takes the will as probated and interprets it accordingly. [footnotes omitted]
The court found that the negligence action was a collateral attack on the CAETW. The plaintiffs were directly challenging whether the testator knew and understood the contents of the will. To succeed in this negligence action, they had to establish that the deceased’s lawyer negligently failed to give effect to his intentions when he drafted the will. However, such a finding would contradict the grant of probate, which confirmed the testator’s knowledge and understanding of the contents of the will: Cooke Family Trust et al v. Dioguardi et al, 2025 ONSC 370, 2025 CarswellOnt 633 (Ont. S.C.J.).
Competence of Estate Trustee – Interim Removal and Replacement – The respondent was removed as the executrix and trustee of her father’s estate on an interim basis pending the earlier of the outcome of the applicants’ motion to remove her permanently. She was replaced by the applicant for the interim period. The applicant had been frustrated by the slow pace of the administration and, inter alia, by the estate trustee’s failure to comply with court orders. The respondent requested an adjournment or deferral of the proposed motion because of her ill-health, saying her recovery required time away from her duties as estate trustee. Ordering the interim removal, the court noted at para. 34 that there was no specific rule or statute authorizing the court to remove an estate trustee and appoint a caretaker on an interim basis. However, it stated that it could not see how it could “leave the ship of the estate without a captain” while reporting remained outstanding under a court order and, most importantly, while the major asset of the estate, a farm property, was for sale. It observed that managing the sale process for the farm would require more than the estate’s lawyer at the helm. The estate trustee must be available to manage the process, communicate with the other beneficiaries and deal with offers. Given this, the respondent’s submission that she needed time away from her duties created a situation of urgent risk to the welfare of the beneficiaries: Panchyshyn v. Pietron, 2025 ONSC 2324, 2025 CarswellOnt 5405 (Ont. S.C.J.).
The Law of Costs – Mark M. Orkin and Robert G. Shipper Release #8 – December 2024
What’s New?
Updates to Chapter 1. Classification of Costs and Chapter 2. Party-and-Party Costs.
Judicial Review of Administrative Action in Canada– Donald JM Brown et al. Release #4 – December 2024
What’s New?
Updates to case law and commentary in Chapter 8 (Statutory and Constitutional Procedural Requirement), Chapter 9 (Pre-Hearing Participatory Rights: Notice, Disclosure, Delay and Adjournments), Chapter 10 (The Hearing and Participatory Rights), Chapter 11 (Interest, Boas, and Independence), Chapter 12 (Review of the Decision-Making Process), Chapter 13 (The Grant of Authority), Chapter 14 (Review of the Exercise of Authority: Administrative Adjudication), and Chapter 15 (Review of Non-Adjudicative Administrative Action).
Remedies in Tort– Lewis N. Klar et al. Release #11 – November 2024
What’s New?
Rewritten Chapter 18: Professional Negligence in its entirety. The chapter was revised in 2 parts, part one which was published prior to this release. This release covers professional negligence with architects and medical malpractice.
Judicial Review of Administrative Action in Canada– Donald JM Brown et al. Release #4 – December 2024
What’s New?
Updates to case law and commentary in Chapter 8 (Statutory and Constitutional Procedural Requirement), Chapter 9 (Pre-Hearing Participatory Rights: Notice, Disclosure, Delay and Adjournments), Chapter 10 (The Hearing and Participatory Rights), Chapter 11 (Interest, Boas, and Independence), Chapter 12 (Review of the Decision-Making Process), Chapter 13 (The Grant of Authority), Chapter 14 (Review of the Exercise of Authority: Administrative Adjudication), and Chapter 15 (Review of Non-Adjudicative Administrative Action).
Manitoba King’s Bench Rules Annotated – Jonathan M. Woolley (founding author: Karen Busby) Release #4 – November 2024
What’s New?
Updated the Annotations and Practice Directions. Also included is a new CD containing updated fillable forms and checklists.
Remedies in Tort– Lewis N. Klar et al. Release #12 – December 2024
The Oppression Remedy– David S. Morritt et al. Release #2 – December 2024
What’s New?
Updates to 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).
Lawyers & Ethics: Professional Responsibility and Discipline– Gavin MacKenzie Release #5 – December 2024
What’s New?
Updates to case law and commentary in Chapter 26 – Discipline Proceedings, plus the following two updated Issues in Focus.
Executors and Trustees – Carmen S. Thériault Release #9 – October 2024
What’s New?
Amendments and updates to the commentary in Chapter 1 (Funeral); Chapter 2 (Assets); Chapter 5 (Bequests and Beneficiaries); Chapter 10 (Breach of Trust and Its Consequences); Chapter 11 (Executor’s Compensation); Chapter 12 (Application to the Court for Advice to the Court); Chapter 15 (Resignation, Removal and Appointment of Trustees); Chapter 17 (Dependants’ Relief Claims and Spousal Property on Death; and Words and Phrases.
Remedies in Tort– Lewis N. Klar et al. Release #10 – October 2024
What’s New?
Rewritten Chapter 18: Professional Negligence in its entirety. The previous version of chapter 18 may be discarded and replaced with the new version of the chapter. This chapter will be revised in 2 parts with the second update coming later this year.
Injunctions and Specific Performance – Robert J. Sharpe Release #1 – November 2024
What’s New?
The provision in Ontario’s anti-SLAPP regime, Courts of Justice Act, s. 137.1(5) precludih a party from bringing any steps after an anti-SLAPP motion has been made, does not oust the court’s inherent jurisdiction to issue an interlocutory injunction: 40 Days for Life v. Dietrich, 2023 ONSC 5879 (Ont. Div. Ct.).
Lawyers & Ethics: Professional Responsibility and Discipline–Gavin MacKenzie Release #4 – November 2024
What’s New?
Update to Issue in Focus, Words and Phrases and Selected Legal Literature.
The Law of Costs– Mark M. Orkin and Robert G. Shipper Release #6 – October 2024
What’s New?
Updates to Chapter 3. Solicitor-and-Client Costs; Chapter 4. Costs of Motions; Chapter 5. Security for Costs; Chapter 8. Appeals; and Chapter 11. Cost in the Federal Court.
Executors and Trustees – Carmen S. Thériault Release #8 – September 2024
What’s New?
Amendments and updates to the commentary in Chapter 2 (Assets); Chapter 4 (Expenses and Legal Costs); Chapter 5 (Bequests and Beneficiaries); Chapter 14 (Passing Accounts), and Chapter 17 (Dependents’ Relief Claims and Spousal Property on Death).
The Law of Bail in Canada – Hon. Gary T. Trotter Release #8 – September 2024
What’s New?
Updates to Chapter 8 “Bail Reviews”. Appendix A “Criminal Code Provisions Relating to Bail”, Appendix B “Bail Act 1976 (U.K.)”, and Appendix C “Rules of Court Respecting Bail Pending Appeal”, have been updated to bring the provisions up to date.
Manitoba King’s Bench Rules Annotated – Jonathan M. Woolley (founding author: Karen Busby) Release #8 – September 2024
What’s New?
Updated annotations, checklists, and legislation updates.
Judicial Review of Administrative Action in Canada – Donald J.M. Brown et al. Release #3 – October 2024
What’s New?
Updates to the case law and commentary in the following chapters: 1 (Judicial Review Jurisdiction), 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), and 7 (The Duty of Fairness: Its Scope and Content).
The Regulation of Professions in Canada – James T. Casey Release #8 – October 2024
What’s New?
Updates to the case law and commentary in Chapter 2 to 8.
The Manitoba Law Library would like to acknowledge with gratitude that we are situated on Treaty One Territory, the traditional lands of the Anishinaabe, Cree and Dakota peoples, and the homeland of the Métis Nation.
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