Looseleaf Updates – February 25

by | Feb 25, 2026 | Commentary, New Books, Tort Law

The following looseleaf texts have been updated:

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IN CANADA

Release No. 4, December 2025

What’s New in this Update

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.

THE LAW OF DAMAGES

Release No. 1, December 2025

What’s New in this Update

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
In Chung 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.

LAWYERS & ETHICS: PROFESSIONAL RESPONSIBILITY AND DISCIPLINE

Release No. 5, December 2025

What’s New in this Update

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.

WIDDIFIELD ON EXECUTORS AND TRUSTEES, 6th EDITION

Release No. 2, February 2026

What’s New in This Update

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.

Constant Estate (Re), 2025 ABCA 329, 2025 CarswellAlta 2298 (Alta. C.A.).

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.).

Looseleaf Updates – January 2026

by | Jan 14, 2026 | Commentary, New Books, Tort Law

The following looseleaf texts have been updated:

Orkin on the Law of Costs, Release No. 8, December 2025

What’s New in this Update

This release includes updates to Chapter 3 (Solicitor-and-Client Costs), Chapter 4 (Costs of Motions), Chapter 5 (Security for Costs), Chapter 8 (Appeals), Chapter 11 (Costs in the Federal Court), Chapter 14 (Costs in the Family Court and the Small Claims Court) and Chapter 15 (Costs in Construction Actions).

Highlights

  • Appeals—Appeals from Orders as to Costs—Exceptions—This decision was the second of two motions dealing with the defendant. RB, seeking leave to have the Court of King’s Bench of Manitoba reconsider a decision on costs released May 25, 2023. This litigation began in 2016 pursuant to the oppression remedies in the Corporations Act (Man.). Numerous motions were filed during the litigation dealing with a multitude of issues. The trial proceeded during two separate timeframes and lasted approximately 17 days. The trial judge then set aside two days to hear submissions on costs. The judge made an award of costs on a party-party basis. The judge did not award solicitor and client costs respecting all steps in the proceedings. RB filed a notice of motion seeking, among other things, an order granting a reconsideration of the cost decision on the merits of the case. The judge had to decide if the court should grant leave to re-open the issue of costs and reconsider the costs decision and whether the court grant a stay of the costs decision pending release of the decision from the Court of Appeal. After reviewing the caselaw presented by the parties, and applying those principles to the facts and circumstances to the case, the judge was not satisfied that RB had met the criteria to re-open the issue of costs and to reconsider the cost decision. As the judge noted, this was not a case where new evidence became available subsequent to the costs hearing and that there was a reasonable explanation for the evidence not being filed prior to the hearing. This was also not a case where there was a serious risk of a miscarriage of justice unless a rehearing was granted. Judge concluded that RB failed to meet the criteria required to reopen the cost decision. Campbell et al. v. Brar et al., 2024 A.C.W.S. 5119, 2024 MBKB 149 (Man. K.B.).
  • Costs in Construction Actions—General—Overview—In this case in the Superior Court of Justice for Ontario, the Associate Justice discharged the claim for lien of the plaintiff pursuant to the old Construction Act (Ont.), section 47 and dismissed the action as the court found that the claim for lien was frivolous, vexatious, and an abuse of process and that the lien claimant had not complied with a previous removal order. The Associate Justice also ordered that the related certificate of action be vacated from title. Costs were awarded to the defendant BP in the amount of $85,000 for the motion and the action and to the defendant JDI in the amount of $45,000 for the motion and the action. After reviewing the chronological history of the matter regarding the registration of the lien and the commencement of the action, the court then addressed the test for liability for costs under the old Construction Act and whether FR was liable for the costs owing by the plaintiffs under that subsection. As noted, the defendants brought their motions pursuant to the old Construction Act section 86(1)(b)(i). The court went on to state, “Given this gatekeeping function, the argument was whether the costs sanction of section 86(1)(b)(i) applies only to cases where the representative has subjective actual knowledge of the baselessness of the claim for lien.” The Associate Justice, after a review of case law, found that liability for costs under section 86(1)(b)(i) required a finding that the representative subjectively knew of the baselessness of the claim for lien when it was registered and perfected. The case law also established that evidence of bad faith or improper purpose qualified the lawyer for a costs order under this subsection. The Associate Justice found that liability for costs under section 86(1)(b)(i) includes recklessness and wilful blindness. The Associate Justice concluded that there was insufficient evidence that FR had actual knowledge of the baselessness of the lien when it was preserved and perfected nor was FR reckless or wilfully blind in that regard. Accordingly, the motions were dismissed in their entirety. 2708320 Ontario Ltd. cob Viceroy Homes v. Jia Development Inc., 2024 ONSC 1608 (Ont. S.C.J.), affirmed 2024 ONSC 6519 (Ont. Div. Ct.).

Remedies in Tort, Release No. 12, December 2025

What’s New in This Release

  • This release features updates to Appendix B. Quantum Tables and Appendix IF. Issues in Focus.).

Highlights

  • APPENDIX IF. ISSUES IN FOCUS-Under what circumstances is there a duty of care between students and universities or university professors, and, if one does exist, what is the scope of that duty?-In Bella v. Young, the Supreme Court of Canada succinctly delineated the law of negligence, and illustrated the duty of care that formed the core of tortious liability based on negligence or negligent misrepresentation. However, in Bella, it was not the law of negligence that was noteworthy, because the basic legal principles of negligence were well established and fairly non-controversial. Rather, it was the novel context of the case that was of primary significance: a duty of care arising between a student and university professors, as well as with the university itself. Bella’s recognition of the existence of a duty of care is significant because it expanded the circumstances in which the law of negligence applied, with the imposition of attendant responsibilities and liabilities for damages. While Bella recognized a duty of care between students and universities/professors, the exact scope of that duty remains indeterminate. The judicial perspective on the issue of the existence of a standard of care was reinterpreted in 2010 by the Ontario Court of Appeal in Gauthier c. Saint-Germain, 2010 ONCA 309 (Ont. C.A.), where it held that where “the plaintiff alleges factors that constitute a cause of action based on torts or a breach of contract, while claiming damages, the court has jurisdiction, even if the dispute stems from academic or educational activities of the university in question”. However, even where a court is found to have jurisdiction, a plaintiff must still plead the requisite elements of the cause of action. Regarding a tort action, the Court of Appeal made it clear that a student cannot simply state that a professor was too demanding in their evaluations, or revealed their incompetence.
  • APPENDIX B. QUANTUM TABLES- Harper v. Mezo, 2024 CarswellBC 1458 – Plaintiff, aged 64, suffered injuries when the driver of the vehicle in which she was a passenger fell asleep and drove off the highway at a speed of 80 km/h, traveling into a ditch and suffering significant damage to the front passenger side. After the collision plaintiff was airlifted to hospital with three spinal fractures, and remained in hospital for 10 days. Plaintiff suffered significant injuries, including a mild traumatic brain injury, three vertebral fractures, injuries to her sternum, soft tissues injuries to her shoulder, neck, and back, an injury to her left abdominal wall, right leg, right knee, and headaches. She had significant back pain, leg pain, arm numbness, shooting pains, and spasms. Pre-existing vertigo and dizziness were aggravated. She suffered anxiety and depression, post-concussion syndrome, cognitive difficulties, sleep difficulties, and chronic pain in her left shoulder, neck, and back. The impact of these injuries on plaintiff’s life was devastating. Defendants failed to establish that plaintiff failed to mitigate her damages. Power (J.A.) J. awarded plaintiff general damages in the amount of $250,000, as well as $517,100 for cost of future care.

Tort Law Collection Update

by | Jul 25, 2022 | Legal Research, New Books, Tort Law

Image taken from https://lawhaha.com/torts-illustrated/

Whether it was a five year old pulling out your chair, or a snail in your ginger beer, it’s good to know where the law stands when you’ve been wronged. The library has a thorough collection of texts on Tort law available, including two recently updated titles.

Newest Additions

Canadian Tort Law — 12th ed. by Allen M. Linden, Bruce Feldthusen, Margaret Isabel Hall, Erik S. Knutsen, Hilary A. N. Young

“The twelfth edition of the leading treatise on tort law in Canada continues the standard of excellence achieved by each previous edition and answers questions for all professionals in this field.”

Remedies in Tort. by Lewis Klar, Linda Rainaldi, Earl Cherniak, and Peter Kryworuk [looseleaf]

“Remedies in Tort is the only Canadian publication that summarizes tort law completely and in a readily accessible manner. This five-volume work has a total of 28 chapters that are constantly updated with the most recent guidelines and court decisions.”

Main Collection

Browse our catalog for even more titles on Torts, or take a look at some of the popular titles currently in our print collection.

Online titles

The Law of Torts. 6th ed. by Philip Osborne, Toronto: Irwin Law, 2020. Available on vLex

“An indispensable resource for practitioners, judges, and students seeking a concise and accessible introduction to the principles of tort law in Canada, as well as the social policies underlying the law and current trends in judicial decision making. The book reviews the foundations, characteristics, and objectives of tort law with specific discussions of negligence, intentional torts, strict liability, vicarious liability, nuisance, and defamation.”

Newsletters and Current Awareness

LexisNexis® Tort Law Netletter(TM) – an electronic current awareness service covering recent judicial developments in tort law, including property torts, torts affecting the person (including defamation), torts by and against the Crown, passing off, and negligence, including professional negligence by medical, legal and other professionals.
Email the library (library@lawsociety.mb.ca) to subscribe.

For even more resources visit the Library Resources section of the Member’s Portal and see what HeinOnline has to offer. They offer both recent articles in their Law Journal Library, as well as historical and rare titles in their Legal Classics Database.