This release introduces a new Chapter 4 -- Conflicts of Interest in Corporate and Commercial Practice, which replaces the previous Chapter 4. The chapter has been fully updated, featuring new commentary, case law and legislative developments and an expanded bibliography.
Highlights
Analyzing conflicts of interest in corporate and commercial practice is inherently challenging due to the various kinds of business organizations, the number of stakeholders they have, whether the business organization is a person in law, the various roles and interests of the instructing persons, who the client is at the time of the file opening, who is actually or perceived to be owed the duties of loyalty, candour and confidentiality, whether the interests of the various stakeholders diverge during the course of the matter, identifying third parties over the course of the matter, the number of "near clients" with an interest in the outcome of the transaction, the impact of agreed upon Outside Counsel Guidelines, and the sophistication of the client and involvement of in-house counsel.
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Given the range of business organizations and their various stakeholders, lawyers and law firms must take great care when opening matters, determining or defining who the client is, knowing which names to search when clearing conflicts of interest (including legal names, brand names, "doing business as" names, partner names, trustee names and names of affiliates and subsidiaries), identifying the instructing parties on the matter and their role within the business organization, and defining the mandate of the matter so that is has a clear and discernable end. In addition, lawyers and law firms should record all relevant names in the conflicts database that relate and are friendly to the client to ensure that future matters are not opened that turn out to be directly or indirectly adverse to the client or one of its many stakeholders.
This release features a new View from the Top: Administrative Law in the Supreme Court of Canada 2025. In addition, updates have been made to the case law and commentary in the following chapters: 1 (Jurisdiction to Grant Prerogative Remedies, Declarations and Injunctions), 2 (The Application for Judicial Review), 3 (Discretionary Bars to Judicial Review), 4 (Parties to a Judicial Review Proceeding), 5 (Commencement of Judicial Review Proceedings), 6 (Interlocutory Proceedings, Perfection and Orders), 7 (The Duty of Fairness: its Scope and Content), and Appendix G (Ontario Statutes, Rules, Forms and Practice Directions).
Highlights - Note of Developments in Administrative Law in 2025
Habeas Corpus Dorsey v. Canada (Attorney General), 2025 SCC 38, is a significant decision, in particular insofar as it broadens the scope of habeas corpus. In Dorsey, a majority of the Supreme Court confirmed that inmates can use habeas corpus to challenge refusals to move them to less restrictive conditions. The majority found that denial of a transfer to a lower-security institution can amount to a "deprivation of liberty", even if the inmate's situation has not worsened and even if the inmate has not previously experienced the less restrictive conditions. The issue, according to Moreau J. is simply whether the refusal to reclassify an inmate effectively keeps that inmate in a more restrictive environment.
The majority emphasized that prisoners retain residual liberty, and that security classification directly affects the degree of freedom inmates experience. The Court's decision focused on whether conditions are more restrictive than they lawfully should be as opposed to whether there has been a clear change in status.
Justiciability, Jurisdiction and Limits of Judicial Oversight In Canada (Prime Minister) v. Hameed, 2025 FCA 118, the Federal Court of Appeal held that the Federal Court lacked jurisdiction to hear an application for judicial review seeking to compel the Prime Minister and the Minister of Justice to fill judicial vacancies. In reaching this conclusion, the Federal Court of Appeal found that when advising on judicial appointments, neither the Prime Minister, nor the Minister of Justice, was a "federal board, commission, or tribunal" under the Federal Courts Act and that there was no statutory grant of jurisdiction over their roles.
The Federal Court of Appeal also emphasized the distinction between political and legal disputes. Without concluding that there was a constitutional convention requiring the government to fill judicial vacancies, the Federal Court of Appeal nonetheless concluded that breaches of conventions should be remedied through political, as opposed to legal, means.
Vavilov Extended In Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency), 2025 FCA 147 the Federal Court of Appeal applied the Vavilov framework to the Canadian Food Inspection Agency's "Stamping-Out Policy". At issue was an order, under the Stamping-Out Policy, by the Agency to cull an entire flock of Ostriches in response to an outbreak of H5N1 avian flu on an ostrich farm in British Columbia.
The applicant challenged the application of the Stamping-Out Policy. The Federal Court of Appeal found that the approach to reviewing policy decisions prior to Vavilov had been overtaken by Vavilov and that there was no reason why "the reasonableness review of a discretionary policy decision should not be framed in the manner set out in Vavilov."
In Rogers v. Director of Maintenance Enforcement Program, 2025 YKCA 12 at the Yukon Court of Appeal extended the application of Vavilov when it found that the failure to enact regulations that are necessary for a statutory provision to be given effect is typically justiciable and that the applicable standard of review is reasonableness.
The Court of Appeal held that where the failure to enact regulations "undermines ... the purpose of the legislation" and "frustrates ... the will of the legislature, the decision is unreasonable." The Court of Appeal noted that Vavilov was intended to "apply broadly to the review of executive regulation-making action", and that as such, "Vavilov must also apply to the review of executive regulation-making inaction."
Appendix IF. Issues in Focus IF:10. Should a lawyer be disqualified from representing a party where that lawyer engages a paralegal who has had direct knowledge and access to the opposing party's privileged information? (Updated May 2025)
This release includes updates to Chapter 2 (Party-and-Party Costs).
Highlights
Party-and-Party Costs--Offer to Settle--Calderbank Letter--The defendants in this case was a law firm which was successful in their special chambers application for summary dismissal of the plaintiff's claim against them. These defendants requested solicitor and own client, full-indemnity costs. The plaintiff suggested each party should bear their own costs. The allegations against the lawyer defendants included professional negligence and breach of fiduciary duty or conspiracy to employ fraudulent and deceitful means to cause the plaintiff to enter into an improvident share purchase agreement. The remedy sought by the plaintiff including judgment for $3 million for losses caused to the plaintiff and $100,000 for punitive and exemplary damages. The judge found that there was no evidence to show merit to the plaintiff's claims in negligence, breach of fiduciary duty, or conspiracy against the lawyer defendants. Further, there was no evidence to merit aggravated, punitive or exemplary damages. Finally the judge found that the claims advanced were barred by the passage of time. The judge reviewed the bills of costs and considered the Rules and the case law related to costs generally and to solicitor and client costs specifically where there has been unproven allegations of fraud and dishonesty. The judge also took into consideration the Calderbank offer made prior to the special chambers application but after the pleadings were closed, documents and affidavits were exchanged, and the parties were questioned. The judge found that there was no reasonable basis on which to commence or continue this litigation. The judge concluded that solicitor and client full-indemnity costs were appropriate. Proportionality was not dependent on ability to pay. The judge awarded to the lawyer defendants the amount of $42,499.87 assessed on a solicitor and own client full-indemnity basis. Salame v. Chimayt, 2025 ABKB 205 (Alta. K.B.).
Party-and-Party Costs--Special Provisions as to Costs--Solicitor-and-Client Costs/Substantial Indemnity Costs--This was an application brought by the Administrator ad litem RH to recover legal costs following a successful appeal inter alia, temporarily staying their lawsuit pending a decision whether to certify a related putative class action. The applicants were seeking solicitor and client costs for that stay application. The related proposed class action was in relation to the catastrophic Humboldt Bronco bus crash. The respondents argued that an order for solicitor and client costs was not warranted in the circumstances. The judge found that solicitor and client costs were not warranted. The judge fixed the costs of the application at $7500. The judge also found that counsel for the respondents was not personally liable for paying the costs of the application. In Saskatchewan, solicitor and client costs are exclusively reserved for exceptional circumstances and are rarely awarded. In deciding what costs should be awarded the application judge considered certain principles set out in the decision. The court then addressed whether costs should be awarded against counsel personally. The court reviewed Rule 11-24 of The King's Bench Rules and noted that Orders of this kind are warranted only if a court is satisfied that "a lawyer for a party has caused costs to be incurred improperly or without reasonable cause or has caused costs to be wasted through delay, neglect or some other fault. Like solicitor and client costs, situations where a lawyer is found personally liable to pay a costs award order against his or her client should be exceptional and rare. Thus, before a Judge should order a lawyer personally responsible for legal costs incurred by the opposing party, there must be evidence that their conduct amounted to a "serious dereliction of duty or behaviour". The evidence must be clear and permit a judge to find "as a fact, that there had been highly improper conduct" on the part of the lawyer against whom such a costs order is sought. The judge therefore did not award costs against counsel personally. Wassermann v. Herold (Administrator Ad Litem), 2025 SKKB 40 (Sask. K.B.).
This release features new and updated case law and commentary to Chapter 3 - The Canadian Charter of Rights and Freedoms, Chapter 4 - Jurisdiction of the Tribunal Over the Professional, Chapter 5 - The Right of Professional Organizations to Make Rules and Regulations, Chapter 7 - The Applicability of the Duty of Fairness, Chapter 9 - Bias, Chapter 11 - Evidentiary Issues.
Highlights
New section 4:7--Conduct Not Part of Practice of Profession - On occasion questions arise as to whether an investigated member's activities are part of the regulated profession and subject to applicable standards of practice. In Al-Hallak v Alberta College of Pharmacy, 2025 ABCA 419, certain allegations of unprofessional conduct relating to a pharmacist providing cosmetic services fell outside the practice of pharmacy. The Court of Appeal overturned this aspect of the decision finding that it was an error to exclude from the definition of the practice of pharmacy procedures that were intended to enhance a person's appearance.
New section 4:8--Statutory Immunity - The issue of statutory immunity provided to regulatory Colleges and officials is addressed in Chapter 3, S. 11:15. However, on occasion issues arise with respect to whether professionals have statutory immunity from the College complaint process . . . . In response to allegations that regulatory colleges were engaged in "regulatory scope creep" and were restricting freedom of expression by disciplining professionals for off-duty conduct, the Alberta Legislature passed Bill 13, Regulated Professions Neutrality Act, 2025. The Bill restricts the ability of regulatory colleges to impose sanctions for expressive conduct that occurs outside the practice of the regulated profession subject to enumerated exceptions. The Bill has been widely described as the "Jordan Peterson law" referring to the controversial discipline case concerning the Ontario psychologist.
Release No. 3, April 2026
What's New in this Update
This release features new and updated case law and commentary to Chapter 13 - Professional Misconduct, Chapter 14 - Sentencing, Chapter 15 - Appeals and Judicial Review, Chapter 16 - Admission to the Professions and Chapter 18 - Hospital Privileges for Physicians.
Highlights
Chapter 13--Professional Misconduct--§ 13.2. Test for Conduct Deserving of Sanction - The British Columbia Court of Appeal has ruled that in cases where an uninvestigated member relies on a Charter right to defend allegations of unprofessional conduct, the test in the context of Law Society proceedings must be broadened to be:
The test is whether the facts as made out disclose a marked departure from that conduct the Law Society expects of its members, having properly balanced the relevant Charter value with the Law Society's public mandate and objectives; if so, it is professional misconduct.
Chapter 16--Admission to the Professions--§16:1. Generally - In one case applicants sued for breach of contract when the Royal College of Physicians and Surgeons of Canada adjusted scores downward such that the applicants no longer passed the entrance examination. The claim was dismissed at the trial level but the Court of Appeal allowed the appeal and remitted the matter to a new trial. The Court of Appeal concluded that the reasons of the trial judge were insufficient to explain her conclusion that it was psychometrically sound to adjust the results of the examination. The Court also concluded that the trial judge's reasons did not satisfactorily address the applicants' claim for breach of contract.
This release features updates to the case law and commentary in Chapter 22: Passing Off.
Highlights
Chapter 22--Passing Off--Nature of Cause of Action--'Passing off' is an economic or proprietary tort which generally arises between market actors. The basic thrust of the tort is to control the circumstances in which one actor can benefit by identifying its products or services with that of another and by harming that other actor by such a manoeuvre. Accordingly, it protects the goodwill earned or created by one market actor from its appropriation by another. As such, it draws upon a broader notion of property rights and extends protection to not only the products of services of another, but also to its marketing power and potential, as well as its market reputation.
Chapter 22--Passing Off--Misrepresentation--The second component of the tort of passing off is a misrepresentation that creates confusion in the public. This may be wilful and will also constitute deceit. However, it need not be so. Today, the doctrine of passing off encompasses innocent misrepresentations; this includes negligent or careless misrepresentations. Proof of the defendant's intention to deceive is strong evidence of an intent to improperly affect the plaintiff's trade. Also, where a defendant continues to use an allegedly deceptive description after the danger of using it has been drawn to their attention, an inference of fraud is raised.
Chapter 22--Passing Off--Injunctions--The availability of an interim or permanent injunction in respect of passing off is governed by the ordinary principles applicable to injunctive relief. However, on an application for an interim injunction where the granting of the injunction would most likely finally dispose of the action, the court is justified in considering the merits of the case. It can determine whether there is a prima facie case, not merely whether there is a substantial issue to be tried. If the applicant establishes a prima facie case, the questions of irreparable harm and balance of convenience must then be addressed.
Release No. 3, April 2026
What's New in This Release
This release features updates to the case law and commentary in Chapters 2, 15, 16, 18, 19, 30, and 31.
Highlights
Chapter 15. Malicious Prosecution - Plaintiff police officer brings claim against police/prosecution in respect of a host of charges based on intercepted communications between plaintiff and 3rd parties; wiretap based on police mischaracterizing informants; as a result, charges ultimately withdrawn but before wiretap and communications subject to Charter challenge at plaintiff's criminal trial; trial judge not wrong to rely on the intercepted communication to understand basis of prosecution against plaintiff; intercepted communications stood as strong challenge to plaintiff's claim of factual innocence in civil action and as basis for establishing reasonable and probably grounds; decision upheld on appeal: McCormack v. Evans, 2025 ONCA 767.
Chapter 16. Negligence (General) - Appeal of dismissal of claim that alleged a duty of care owed by Attorney General and others in respect of their failure to properly administer regulatory oversight when issuing firearm licences, third party had shot and killed plaintiff's family member; on appeal, motion judge erred in concluding no duty owed by defendants; for the purposes of establishing proximity, the court can consider a combination of interactions and statutory duties that may give rise to (could be recognized) a private law duty of care for public entity; this requires there being something about the individual claiming a private duty (in relation to the government action) that is more specific or tailored than all members of the public; current state of claim required additional facts that spoke to the whether government knew third party a risk to individuals like plaintiff; leave to amend should be granted: Sienna v. Duckett, 2025 ONCA 867.
This release features updates to the case law and commentary in Chapter 21. Occupiers' Liability.
Highlights
CHAPTER 21. OCCUPIERS' LIABILITY-INVITEE An invitee is a person who comes on the occupier's premises at the invitation of the occupier on a matter of common interest. The invitation may be express or implied. In the absence of an express invitation, however, the courts are reluctant to extend the doctrine of implied invitation. An implied invitation is not shown by mere tolerance of a trespass or passive acquiescence in permitting a person upon the premises or by use without the owner's knowledge. However, where the use has continued for so long as to lead the public to think that the owner invited such use, liability has been held to arise.
CHAPTER 21. OCCUPIERS' LIABILITY-LICENSEES A licensee is a person who enters on premises with the permission of the occupier on a matter concerning the licensee and in which the occupier has no interest. Although the occupier has not invited the licensee onto the premises and has no interest in them being there, the occupier has expressly permitted the licensee to use the premises or knows about their presence on the premises. Furthermore, the occupier has either given permission to remain on the premises or has done nothing to stop their further presence there. Thus, the main distinction between an invitee and a licensee is that an invitor and invitee have a common interest, but the licensor and licensee do not.
CHAPTER 21. OCCUPIERS' LIABILITY-ELEMENTS OF CAUSE OF ACTION For the plaintiff to succeed in an action based on occupiers' liability, the following four elements must be established - that the defendant was an occupier of the premises on which the accident occurred; that the defendant breached a duty of care owed to the plaintiff; that the defendant's breach caused the plaintiff's injury; and that the plaintiff suffered damage. This applies whether the action is brought in New Brunswick, Newfoundland and Labrador, Saskatchewan, and The Territories (Yukon, Northwest Territories, and Nunavut) within a common law approach to occupiers' liability or in Alberta, British Columbia, Manitoba, Nova Scotia, Ontario, and Prince Edward Island under a statutory framework.
This release features updates to Appendix IF - Issues in Focus, Appendix SLL - Selected Legal Literature and Appendix WP - Words and Phrases.
Highlights
Appendix WP. Words and Phrases--Procedural Fairness Procedural fairness comprises the right to be heard and the right to an impartial hearing: Sull v. Trevitt (2025) CarswellBC 2114, 2025 BCSC 1366 (B.C. S.C.) at para. 22 Chan J.
Circumstantial Evidence Circumstantial evidence tends to establish those facts which are at issue at trial, but it does so indirectly (...). It concerns the proof of facts from which inferences can be drawn about the facts relevant to the legal issue under consideration (...). Each piece of evidence need not alone lead to the conclusion sought to be proved, and pieces of circumstantial evidence can be combined to justify the inference that a certain fact or state of mind exists (...): R. v. Rioux (2025), 2025 CSC 34, 2025 SCC 34, 2025 CarswellQue 11393 (S.C.C.) at para 58 Per Martin J. (Karakatsanis, Kasirer, Jamal, O'Bonsawin JJ. concurring).
Chapter 4 -- Will Planning The entire chapter has been reviewed and refreshed. Commentary has been significantly updated under the headings for the Terminal Year regarding Compliance with Statutory Conditions, Shares of a Private Corporation, and Charitable Donations. Also, under the main heading for The Estate, The Testamentary Trust and the Beneficiaries for subheadings Facilitating Post Mortem Planning regarding Separate Testamentary Trusts, and Post-Mortem Contributions.
Chapter 6 -- Gifts and Trusts Inter Vivos The entire chapter has been reviewed and refreshed. Commentary has been significantly updated under the headings of Income Taxation Affecting Gifts and Transfers to and From Personal Trusts Inter Vivos General comments, and Gifts of Farm or Fishing Property. A new section, Loss Restriction Events, has been added to the end of the chapter.
In this release, the author has prepared a new Year in Review, updated practice directions, legislation, and the prejudgment and post judgment interest rates.
Highlights
Chapter 5 - Forms The forms have been relaunched in this release to enable linking to the fillable forms in the electronic versions of this publication.
Chapter 7 - Miscellaneous - Court of King's Bench and Court of Appeal Notices and Practice Directions The following Practice Directions have been added:
Re: Length and Formatting of Application and Motion Briefs (October 2, 2025)
Re: Change to Teleconference Numbers for Associate Judges Uncontested List (October 28, 2025)
Re: Anonymizing Pleadings and the Contents of Publicly Available Court Records (December 10, 2025)
Re: Self-Representing Litigants on Civil Applications and Motions (December 10, 2025)
The following Court of Appeal Notices have also been included:
Re: Hours of Registry Counter Services (October 1, 2025)
Re: Judges' Books of Authorities (October 24, 2025)
Re: Security for Costs Required in Motions Requesting a Rehearing (December 4, 2025)
Appendix D - Recent Developmentsin Civil Litigation Year in Review--2025 The 2025 Year in Review lists some of the notable trends and developments in civil litigation in Manitoba from January 1 to December 31, 2025. The topics covered include - a review of practice directions issued by the Court of Appeal and the Court of King's Bench in 2025; commentary on Notable decisions of the Manitoba Courts dealing with issues of civil procedure; and a comment on the report of the Civil Rules Working Group in Ontario.
This release features updates to the case law and commentary in the following chapters: 8 (Statutory and Constitutional Procedural Requirements), 9 (Pre-Hearing Participatory Rights: Notice, Disclosure, Delay and Adjournments), 10 (The Hearing and Participatory Rights), 11 (Interest, Bias and Independence), 12 (Review of the Decision-Making Process), 13 (The Grant of Authority), 14 (Review of the Exercise of Authority: Administrative Adjudication), and 15 (Review of Non-Adjudicative Administrative Action).
Highlights
The Courts remained busy in late 2024 and early 2025 issuing a number of decisions that have important implications for the judicial review of administrative action in Canada. Below is brief summary of some of the most notable decisions.
Honour of the Crown In Quebec (Attorney General) v. Pekuakamiulnuatsch Takuhikan, 2024 SCC 39, the Supreme Court concluded that contracts between the Crown and Indigenous communities may engage the honour of the Crown. In brief, the issue before the Court was a tripartite agreement between Canada, Quebec and Pekuakamiulnuatsch Takuhikan to fund an Indigenous police force for the Indigenous community. Overtime it became clear that the funding was insufficient to meet the police force’s needs. The police force ran a significant deficit. Pekuakamiul nuatsch Takuhikan sought to negotiate appropriate funding. Canada and Quebec refused to do so. Pekuakamiulnuatsch Takuhikan sued.
The Supreme Court set out a two part-test to determine if the honour of the Crown has been engaged by contracts between the Crown and Indigenous communities. The Court wrote as follows:
[161] First, the agreement in question must be entered into by the Crown and an Indigenous group by reason and on the basis of the group’s Indigenous difference, which reflects its distinctive philosophies, traditions and cultural practices. [162] It is well settled that the principle of the honour of the Crown rests on the “special relationship” between the Crown and Indigenous peoples. As in the case of an explicit obligation owed to an Indigenous group and enshrined in the Constitution, the honour of the Crown is engaged only by an obligation assumed by the Crown on the basis of its “special relationship” with the Indigenous group, which is different from the one it has with population in general. … Moreover the honour of the Crown will apply only if the contract has a collective dimension. Agreements relating to individual rights, even if they are between the State and an Indigenous contracting party, will generally not engage the honour of the Crown. [1631 Second, contractual agreements will engage the honour of the Crown where they relate to an Indigenous right of selfgovernment, whether the right is established or is the subject of a credible claim. In the case at bar, Pekuakamiulnuatsch Takuhikan argues that having an Indigenous police force is an exercise of. its right of self-government. I therefore take care to limit my comments accordingly. While we do not have to decide the question in order to resolve this case, I am not, however, excluding the possibility of recognizing, in a different context, that other Indigenous rights or interests might also engage the honour of the Crown in connection with a contractual undertaking.
The Supreme Court also provided insight on the remedies available where the honour of the Crown has been breached. The Supreme Court noted that, as part of “reconciliatory justice”, remedies should be alert to Indigenous perspectives and should compensate claimants not only for past wrongs but also “place the parties on the path to reconciliation.”
Production of Documents In United States of America and Rabang, 2025 BCCA 7, the British Columbia Court of Appeal considered a request for disclosure with respect to the Minister’s decision to surrender a fugitive in the context of an extradition hearing. The Court of Appeal held that the appropriate framework for considering the request was through the application of principles of judicial review of the decision makers. In applying these principles, the Court of Appeal concluded that disclosure should be limited to the materials actually before the decision-maker. As such, communications that were not before the decision-maker do not form part of the record, even where summaries of those communications were considered by the Minister.
Defamation Damages In James Bay Resources Limited v. Mak Mera Nigeria Limited, 2025 ONCA 448, 2025 CarswellOnt 10017, the Ontario Court of Appeal held that it was an error to award substantial damages to a corporation that had been defamed absent admissible evidence of harm or impact.
Punitive Damages InChung v. Chung, 2025 BCCA 136, 2025 CarswellBC 1275, the British Columbia Court of Appeal held that it was an error not to award punitive damages against the respondent notwithstanding findings that the respondent had breached his fiduciary duties of loyalty and trust and took active steps to conceal that conduct for years. The British Columbia Court of Appeal held that these findings at trial "in their cumulative effect rationally required an award for punitive damages."
Privacy Law In Insurance Corporation of British Columbia v. Ari, 2025 BCCA 131, 2025 CarswellBC 1206, the British Columbia Court of Appeal has confirmed that wherever privacy rights are violated, there is a loss to the plaintiff, regardless of whether the plaintiff is ever made aware of the violation.
This release features updates to Chapter 5-Conflicts of Interest in Litigation, Chapter 25-Rules of Professional Conduct, Chapter 26-Discipline Proceedings, Appendix IF-Issues in Focus and Appendix SLL-Selected Legal Literature.
Highlights
Chapter 26-Discipline Proceedings-§ 26:18. Penalty Although a reprimand is sometimes dismissively characterized as a "slap on the wrist", the Law Society of Ontario Tribunal has observed more than once that a reprimand is not without reputational consequence, as a reprimand leaves "a permanent mark on a lawyer's record and affects his professional reputation and future business opportunities".
Law Society of Ontario v. Constantine, 2020 ONLSTH 15, quoted with approval in Law Society of Ontario v. Diamond, 2024 ONLSTH 145.
Issues in Focus-§ IF:2. How can a client be held to be contributorily negligent in professional negligence matters involving lawyers? The general standard regarding professional liability for lawyers is that "a lawyer is required to exercise the standard of care of the reasonably competent member of his profession similarly situated in the discharge of his retainer." In failing to meet this standard, "[a) solicitor who in the course of carrying out a transaction conducts himself in a manner amounting to professional negligence is liable for the damages arising from his failure to meet his professional duties". The test to be applied in cases alleging solicitor's negligence will depend on various circumstances, including the sophistication and financial experience of the client, which may have an effect on the extent of the solicitor's obligations to the client.
Several defences may be put forward to limit or negate liability for professional negligence, including contributory negligence on the part of the client. For the most part, it will be extremely difficult for a lawyer to demonstrate contributory negligence by the client. However, where the client is also a lawyer, or other sophisticated actor, contributory negligence may be easier to prove.
This release contains amendments and updates to the commentary in Chapter 2 (Assets); Chapter 4 (Expenses and Legal Costs); Chapter 5 (Bequests and Beneficiaries); Chapter 15 (Resignation, Removal and Appointment of Trustees); and Words and Phrases.
Highlights
Lapse-Anti-lapse provisions-Contrary intention The deceased's will provided that her real estate was to be left to her husband and, in an Alternative Transfer of Property clause, if he predeceased her, a property was to be left to her son and another to her daughter. This clause provided that the son was to receive the property left to him "absolutely", as was the daughter. The will also contained the common clause intended to exclude a testamentary gift from, for example, the beneficiary's net family property under s. 4(2) of the Family Law Act, R.S.O. 1990, c. F.3. The son predeceased the mother and the daughter argued that the two provisions manifested a contrary intention that would oust the operation of the anti-lapse provision. The court did not agree. It found that the words "for their own use absolutely"-or, as here, the word "absolutely" were not in themselves sufficient to demonstrate a contrary intention; this depended upon the totality of the will, the language used in the will, and the circumstances surrounding the creation of the will to determine the necessary intention of the testator. It concluded that the deceased's intention in transferring the property to the son "absolutely" had its ordinary meaning, which is a gift of a full estate in fee simple. The word "absolutely" in the will did not express any intention to gift over the daughter should the son predecease the testator. With regard to the clause related to the Family Law Act, it found that the clause would only become operative if one of the beneficiaries separated or divorced. It was to protect her son during his lifetime and did not demonstrate an intention to prevent the property from passing to his wife following his death. The daughter also argued that the testator intended to treat her children equally and that the Alternative Transfer of Property clause was best understood as a class or joint gift of all her real property to her children. The court agreed that the testator generally sought to treat her children equally, but this general objective did not manifest an intention that would oust the anti-lapse provision in respect of the property: Devonport v. Devonport, 2024 ONSC 6764, 2024 CarswellOnt 19151 (Ont. S.C.J.), affirmed 2025 ONCA 753, 2025 CarswellOnt 18191 (Ont. C.A.).
Rectification of will-Intention of testator-Language of will requiring addition of words The cousins of the deceased initially applied for a declaration of intestacy, as to the residue of the deceased's estate. The deceased's will did not name a residual beneficiary. The residue made up the entirety of the estate. An application was granted in part, with partial intestacy declared by the application judge. The appellant was named the personal representative in the will but was not given a clear gift. The will stated only that: "[i]n the event that [the appellant] predeceases me then I bequeath my estate to the Dogwood Foundation". The personal representative claimed that it was the deceased's intention for her to be the beneficiary of the estate. The personal representative's appeal from the application judgment was dismissed. The court found that conflicting inferences were present in the will, with extrinsic evidence being insufficient to clarify the testator's intention. The Court of Appeal found that the will clauses were not inconsistent with the appellant's claim but that the will could not be interpreted as naming a residual beneficiary based on its language without adding words, which was not the role of the court. The evidence for rectification was not sufficient:
7. That said, the problem created by the will as drafted is that the interpretation advocated for by the appellant is not available without adding a provision that is not there. In other words, even without treating any clause in the will as inconsistent with an intention that the appellant receive the residue of the estate, the will, as drafted, cannot be interpreted as naming a residual beneficiary. Rather, the appellant needed to make a case for rectification. This requires "clear and convincing evidence . . . that the will does not reflect the testator's intentions because of (a) an accidental slip, omission or misdescription, or (b) a misunderstanding of, or a failure to give effect to, the testator's instructions by a person who prepared the will": Wills and Succession Act, SA 2010, c W-12.2, s. 39(1). On this record, with no evidence regarding the testator's instructions, and only the contingency clause and some information about the testator's circumstances and relationships that was of limited probative value, it was open to the chambers judge to determine that the testator's intentions were not sufficiently clear.
Legal costs of executor-Executor defending removal application-Impact of testator's responsibility for selection of estate trustee In a successful application to remove her sister as estate trustee, a beneficiary sought costs from the trustee personally as special costs, and an order that the trustee not be able to recover her own costs from the estate for defending this application. The court stated that there was precedent for denying costs from the estate for an executor who unsuccessfully defends themselves from removal on the basis that they are defending themselves personally in the litigation, not the estate, and it would be unfair to the beneficiaries: Levi-Bandel v. Talesiesin Estate, 2011 BCSC 247, 2011 CarswellBC 384 (B.C. S.C. [In Chambers]), paras. 33-36. It also said there was precedent for special costs being awarded against an executor who was removed for showing a troubling disregard for their duties as administrator and who placed their own interests above those of the beneficiaries: Estate of Forbes McTavish Campbell, 2015 BCSC 774, (sub nom. Campbell v. Campbell) 2015 CarswellBC 1254 (B.C. S.C.). It found, in this case, that the trustee had not been able to distinguish her own interests from those of the estate, and served her own interests by continuing to live in estate property, rent-free, for two and-a-half years despite her sister's repeated demands for the sale and distribution of her inheritance. Also, the court found that the beneficiary had been required to hire legal counsel in this matter and did not have the means to pay for this outside the distribution of her inheritance from the estate. However, it found that part of the responsibility for the situation was rooted in the testator's decision to appoint one of his daughters as executor of his will, knowing of the conflict between them. The court also noted that having the parties provide submissions on special costs would further delay the matter and eat into their resources and the resources of the estate. In its view the cost of further submissions and litigation would be disproportionate to the value of the estate. Given all the circumstances the court found, while acknowledging it was an increasingly rare outcome, that this was a case where the estate should bear the costs of the application: Koshman Estate (Re), 2025 BCSC 2193, 2025 CarswellBC 3f32 (B.C. S.C.).
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