COURT OF APPEAL SUMMARIES (SEPTEMBER 22-26)

In McKee v. Shahid, a mother sued the psychiatrists who had treated her son for mental illness. After being discharged from hospital, the son killed his father. His mother sued the doctors for a failure to warn her and her husband about their son’s threats and predisposition to harm them. The claim was struck at the pleadings stage as disclosing no reasonable cause of action. The Court allowed the plaintiff’s appeal, holding that while the proposed duty of care owed by the psychiatrists was novel and not an established category of tort claim, the question of whether such a duty exists through the application of the Anns/Cooper test should not be decided on a motion to strike but required a full evidentiary record. The Court found it was not plain and obvious that the claim was doomed to fail, and accordingly, it should be allowed to proceed to trial.

In Carcillo v. Ontario Major Junior Hockey League, an appeal from the refusal to certify a proposed class action for negligence against Canadian major junior hockey leagues was dismissed. The Court found that the action was of such an unprecedented scale and complexity that it would be unmanageable and could well collapse under its own weight. While the certification judge erred in finding that the claim disclosed no reasonable cause of action in some respects, that did not save the class proceeding, as the appeal was dismissed on the preferable procedure aspect of the certification test.

In Taylor v. Zents, the Court dismissed the defendant’s appeal from a judge-alone verdict awarding the plaintiffs over $1 million for a concussion and brain injury suffered in an MVA case. The award was granted by the trial judge after discharging the jury as a result of a breach by defence counsel of the rule in Browne v. Dunn. The apparently intentional violation of the rule led to a “Perry Mason” moment in the presence of the jury to the detriment of the plaintiff that could only be cured by a discharge of the jury. The Court also confirmed that a treating doctor is not precluded from also being qualified as a r. 53 trial expert.

Ontario Securities Commission v. Cacoeli Asset Management Inc. involved the OSC appointing a receiver over Cacoeli Asset Management due to concerns about the diversion of investor funds between projects, which the company admitted but claimed was permitted. The Court of Appeal upheld the application judge’s decision appointing the receiver and dismissed the appeal. The appropriate evidentiary standard for appointing a receiver under s. 129 of the Securities Act is a “serious concern” of possible breaches, which was the standard applied by the application judge, rather than the strong prima facie case standard argued by Cacoeli.

In dismissing the insured’s appeal in Traders General Insurance Company v Rumball, the Court confirmed the test an individual injured in a car accident must meet in order to receive income replacement benefits from their insurer beyond 104 weeks, and that the onus to establish such entitlement lies with the insured.

In Iliuta v. Li, the Court dismissed an appeal in a fact-specific family law case.

Finally, in a short decision in Stile Carpentry Ltd. V. 2004424 Ontario Inc. that was too short to summarize, the Court refused to allow a closely held corporation to be represented by a non-lawyer (who was the father of corporation’s sole director). The Court confirmed that such relief is only to be granted in exceptional circumstances and should not be normalized. Furthering access to justice is not the only factor to be considered. The integrity of the administration of justice is also a critical factor. The Court commented that the operation of the legal system is premised on the participation of a well-trained and regulated body of professionals. In considering a motion for a non-lawyer to represent a corporation, the court must consider not only whether the individual is capable of comprehending the issues and setting out the position of the corporation, but also whether they are able to advocate in a manner that meets the professional ethical standard expected of lawyers. In this case, the proposed non-lawyer representative had a history of making submissions to the court that contained fabricated legal citations. They referenced non-existent cases and miscited genuine cases for propositions that those cases did not address. They provided notional hyperlinks to authorities that linked to wholly irrelevant documents. They referenced provisions of statutes that did not exist. They quoted text from case law and statutes that were completely fabricated. For these reasons, the motion to have the corporation represented by the non-lawyer on the appeal was dismissed. The corporation was given 30 days to retain a lawyer to argue its motion for an extension of time to perfect its appeal. If it does not do so, the appeal will be dismissed.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

McKee v. Shahid, 2025 ONCA 666

Keywords: Torts, Negligence, MedMal, Duty of Care, Reasonable Foreseeability, Anns/Cooper Test, Duty to Warn, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Mental Health Act, R.S.O 1990, c. M.7, s.15, Family Law Act, R.S.O. 1990, c. F.3, Rules of Civil Procedure, r. 21.01(1)(b), 25.11, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, Ahmed v. Stefaniu (2006), 275 D.L.R. (4th) 101 (Ont. C.A.), Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, Paxton v. Ramji, 2008 ONCA 697, Wawrzyniak v. Livingstone, 2019 ONSC 4900, Childs v. Desormeaux, 2006 SCC 18, Smith v. Jones, [1999] 1 S.C.R. 455, McCreight v. Canada (Attorney General), 2013 ONCA 483, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Catalyst Capital Group Inc. v. Veritas Investment Research Corp., 2017 ONCA 85, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Nelson (City) v. Marchi, 2021 SCC 4, Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, Spillane (Litigation Guardian of) v. Wasserman (1998), 41 C.C.L.T. (2d) 292 (Ont. C.A.), Healey v. Lakeridge Health Corp. (2006), 38 C.P.C. (6th) 145 (Ont. S.C.), Wenden v. Trikha (1991), 8 C.C.L.T. (2d) 138 (Alta. Q.B.), Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. Sup. Ct. 1976), Volk v. DeMeerler, 386 P.3d 254 (Wash. Sup. Ct. 2016), Jablonski by Pahls v. U.S., 712 F.2d 391 (9th Cir. 1983), Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, 132, Cooper v. Hobart, 2001 SCC 79, Rausch v. Pickering (City), 2013 ONCA 740, Heaslip Estate v. Ontario, 2009 ONCA 594, Holland v. Saskatchewan, 2008 SCC 42

Carcillo v. Ontario Major Junior Hockey League, 2025 ONCA 652

Keywords: Sports Law, Hockey, Torts, Systemic Negligence, Abuse, Civil Procedure, Class Proceedings, Certification, No Reasonable Cause of Action, Common Issues, Preferable Procedure,, Litigation Plan, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5, Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15, s. 26, AIC Limited v. Fischer, 2013 SCC 69, Rumley v. British Columbia, 2001 SCC 69, Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401 (C.A.), Cavanaugh v. Grenville Christian College, 2014 ONSC 290 (Div. Ct.), Carcillo v. Canadian Hockey League, 2023 ONSC 886, Carcillo v. Canadian Hockey League, 2023 ONSC 5798, Bowman v. Ontario, 2022 ONCA 477, Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501, 728654 Ontario Inc. v. Ontario (2005), 202 O.A.C. 4 (C.A.), Pioneer Corp. v. Godfrey, 2019 SCC 42, Organization of Veterans of the Polish Second Corps v. Army, Navy & Air Force Veterans in Canada (1978), 20 O.R. (2d) 321 (C.A.), Astgen v. Smith, [1970] 1 O.R. 129 (C.A.), Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165, Maple Leaf Foods Inc. v. Schneider Corp. (1998), 42 O.R. (3d) 177 (C.A.), London Association for Protection of Trade v. Greenlands, Limited, [1916] 2 A.C. 15 (H.L.), Toews v. Isaac, [1929] 2 D.L.R. 719 (Man. C.A.), Body v. Murdoch, [1954] O.W.N. 658 (H.C.), G.S. v. Canada (Attorney General), 2001 SKQB 427, Barrett v. Harris (1921), 51 O.L.R. 484 (S.C.), Brown v. Lewis (1896), 12 T.L.R. 455, Orchard v. Tunney, [1957] S.C.R. 436, Lysko v. Braley (2006), 79 O.R. (3d) 721 (C.A.), Kinver v. The Phoenix Lodge, I.O.O.F. (1885), 7 O.R. 377 (C.A.), The Hibernian Dance Club v. Murray, [1997] P.I.Q.R. P46 (C.A.), 1196303 Ontario Inc. v. Glen Grove Suites Inc., 2015 ONCA 580, Trident Holdings Ltd. v. Danand Investments Ltd. (1988), 64 O.R. (2d) 65 (C.A.), Fulawka v. Bank of Nova Scotia, 2012 ONCA 443, Canada v. Greenwood, 2021 FCA 186, Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, Black v. Owen, 2017 ONCA 397, Sriskandarajah v. United States of America, 2012 SCC 70, Pearson v. Inco Ltd. (2006), 78 O.R. (3d) 641 (C.A.), Housen v. Nikolaisen, 2002 SCC 33, Dennis v. Ontario Lottery and Gaming Corporation, 2013 ONCA 501, Waldman v. Thomson Reuters Corporation, 2012 ONSC 1138, Robinson v. Rochester Financial Ltd., 2010 ONSC 463, Amyotrophic Lateral Sclerosis Society of Essex v. Windsor (City), 2015 ONCA 572, Caputo v. Imperial Tobacco Ltd. (2004), 236 D.L.R. (4th) 348 (Ont. S.C.), Canada v. John Doe, 2016 FCA 191, Sharp v. Royal Mutual Funds Inc., 2021 BCCA 307, Soldier v. Canada (Attorney General), 2009 MBCA 12, Canada (Attorney General) v. Fontaine, 2017 SCC 47, Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48, McCracken v. Canadian National Railway Company, 2012 ONCA 445, Bellaire v. Independent Order of Foresters (2004), 5 C.P.C. (6th) 68 (Ont. S.C.), Price v. Smith & Wesson Corporation, 2025 ONCA 452, Davis v. Amazon Canada Fulfillment Services, ULC, 2025 ONCA 421, Baxter v. Canada, 2005 CanLII 18717 (Ont. S.C.), Lipson v. Cassels Brock & Blackwell LLP, 2011 ONSC 6724, Hodge v. Neinstein, 2017 ONCA 494, Keatley Surveying Ltd. v. Teranet Inc., 2015 ONCA 248, Harrison v. Afexa Life Sciences Inc., 2018 BCCA 165, Pearson and Markson v. MBNA Canada Bank, 2007 ONCA 334, L’Oratoire Saint Joseph du Mont Royal v. J.J., 2019 SCC 35, V.L.M. v. Dominey Estate, 2023 ABCA 261, Cassano v. Toronto-Dominion Bank, 2007 ONCA 781, Spina v. Shoppers Drug Mart Inc., 2024 ONCA 642, Fantl v. Transamerica Life Canada, 2016 ONCA 633, Kirk v. Executive Flight Centre Fuel Services, 2021 BCSC 987, Bouchanskaia v. Bayer Inc., 2003 BCSC 1306

Taylor v. Zents, 2025 ONCA 662

Keywords: Torts, Negligence, MVA, Damages, Civil Procedure, Evidence, Witnesses, Credibility, Rule in Browne v Dunn, Admissibillity, Hearsay, Expert Evidence, Participant Experts, Juries, Discharge, Family Law Act, R.S.O. 1990, c. F.3, Rules of Civil Procedure, rr. 47.02, 53, Browne v. Dunn (1893), 6 R. 67 (H.L.), R. v. Quansah, 2015 ONCA 237, leave to appeal refused, [2016] S.C.C.A. No. 203, R. v. Lyttle, 2004 SCC 5, R. v. John, 2017 ONCA 622, Cannon v. Cemcor Apartments Inc., 2017 ONCA 378, King v. Colonial Homes Ltd., [1956] S.C.R. 528, Penate v. Martoglio, 2024 ONCA 166, Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, Westerhof v. Gee Estate, 2015 ONCA 206, leave to appeal refused, [2015] S.C.C.A. No. 198, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. McManus, 2017 ONCA 188

Ontario Securities Commission v. Cacoeli Asset Management Inc., 2025 ONCA 654

Keywords: Securities, Enforcement, Receiverships, Securities Act, R.S.O. 1990, c. S.5, ss.129 (1) (2) (8) and s.126(5.1), OSC v. Future Solar, 2015 ONSC 2334, Jorshal Enterprises Limited v. J.D.H. Holdings Limited, 2025 ONSC 3216

Traders General Insurance Company v. Rumball, 2025 ONCA 656

Keywords: Torts, Negligence, MVA, Contracts, Insurance, Statutory Accident Benefits, Income Replacement Benefits, Statutory Interpretation, Burden of Proof, Statutory Accident Benefits Schedule, O. Reg. 34/10, s. 5(1)(1), s. 6(2)(b), Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), Licence Appeal Tribunal Act, S.O. 1999, c. 12, Sch. G, s. 11(6), Insurance Act, R.S.O. 1990, c. I.8, Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, O. Reg. 403/96, s.5(2)(b), Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479,  Constitution Insurance Co. v. Coombe (1993), 15 O.R. (3d) 461 (Gen. Div.), aff’d (1997), 36 O.R. (3d) 308 (C.A.), leave to appeal refused, [1997] S.C.C.A. No. 614, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Coombe v. Constitution Insurance Co., [1978] I.L.R. 1-1034 (Ont. H.C.), aff’d in part, 1979 CarswellOnt3416 (C.A.), Coombe v. Constitution Insurance Co. (1980), 29 O.R. (2d) 729 (C.A.), leave to appeal to S.C.C. refused, 16391 (February 3, 1981), Nash v. Aviva General Insurance Company, 2022 ONSC 6723, C.P. v. Certas Home and Auto Insurance Company, 2022 ONSC 5978 (Div. Ct.), Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, leave to appeal refused, [2020] S.C.C.A. No. 7

Iliuta v. Li, 2025 ONCA 651

Keywords: Family Law, Parenting, Child Support, Section 7 Expenses, Spousal Support, Imputation of Income, Marriage Contracts, Setting Aside, Family Law Act, R.S.O. 1990, c. F.3, s. 56(4), O. Reg. 391/97: Child Support Guidelines, s. 7, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Short Civil Decisions

Rebello v. Ontario (Attorney General), 2025 ONCA 665

Keywords: Civil Procedure, Striking Pleadings, Frivolous, Vexatious, Abuse of Process, No Reasonable Cause of Action, Appeals, Review, r. 2.1.01 of Rules of Civil Procedure, rr. 2.1.01 and 59.06, Rebello v. Ontario, 2025 ONCA 202, Tanya Rebello v. His Majesty the King in Right of Ontario as represented by the Attorney General of Ontario, et al., 2025 CanLII 94214 (SCC), Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720

Stile Carpentry Ltd. v. 2004424 Ontario Inc., 2025 ONCA 669

Keywords: Civil Procedure, Representation by Lawyer, Corporations, Appeals, Perfection, Extension of Time, Rules of Civil Procedure, r. 15.01(2), GlycoBioSciences Inc. (Glyco) v. Industria Farmaceutica Andromaco, S.A., de C.V. (Andromaco), 2024 ONCA 481, Stayside Corporation Inc. v. Cyndric Group Inc., 2024 ONCA 630, Leisure Farm Construction Limited v. Dalew Farms Inc. et.al., 2021 ONSC 105

Singh v. Feneich, 2025 ONCA 672

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Summary Judgment, Adjournments

Samiy Retail Inc. v. Kallarakkal, 2025 ONCA 671

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Civil Procedure, Summary Judgment

CIVIL DECISIONS

McKee v. Shahid, 2025 ONCA 666

[Lauwers, Favreau and Dawe JJ.A.]

Counsel:

J. Adair and R. Rai, for the appellant

A. Patenaude and K. Ball, for the respondents

Keywords: Torts, Negligence, MedMal, Duty of Care, Reasonable Foreseeability, Anns/Cooper Test, Duty to Warn, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Mental Health Act, R.S.O 1990, c. M.7, s.15, Family Law Act, R.S.O. 1990, c. F.3, Rules of Civil Procedure, r. 21.01(1)(b), 25.11, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, Ahmed v. Stefaniu (2006), 275 D.L.R. (4th) 101 (Ont. C.A.), Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, Paxton v. Ramji, 2008 ONCA 697, Wawrzyniak v. Livingstone, 2019 ONSC 4900, Childs v. Desormeaux, 2006 SCC 18, Smith v. Jones, [1999] 1 S.C.R. 455, McCreight v. Canada (Attorney General), 2013 ONCA 483, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Catalyst Capital Group Inc. v. Veritas Investment Research Corp., 2017 ONCA 85, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Nelson (City) v. Marchi, 2021 SCC 4, Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, Spillane (Litigation Guardian of) v. Wasserman (1998), 41 C.C.L.T. (2d) 292 (Ont. C.A.), Healey v. Lakeridge Health Corp. (2006), 38 C.P.C. (6th) 145 (Ont. S.C.), Wenden v. Trikha (1991), 8 C.C.L.T. (2d) 138 (Alta. Q.B.), Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. Sup. Ct. 1976), Volk v. DeMeerler, 386 P.3d 254 (Wash. Sup. Ct. 2016), Jablonski by Pahls v. U.S., 712 F.2d 391 (9th Cir. 1983), Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, 132, Cooper v. Hobart, 2001 SCC 79, Rausch v. Pickering (City), 2013 ONCA 740, Heaslip Estate v. Ontario, 2009 ONCA 594, Holland v. Saskatchewan, 2008 SCC 42

facts:

On February 11, 2019, B stabbed his father, W, to death. At the time of the stabbing, B was 27 years old and had a long history of serious addiction and mental health issues. The appellant, A, is B’s mother and W’s wife. She brought an action in negligence against two of B’s psychiatrists, the respondents Dr. GL and Dr. RS. Dr. GL began treating B in August 2016 and was B’s primary treating psychiatrist at the time B killed his father. Dr. RS discharged B from the psychiatric clinic on December 12, 2018, two months before W’s death. The claim alleged that the respondents were negligent in treating B and that they were negligent in failing to warn A and W that B posed a danger to them.

The motion judge granted the respondents’ motion to strike the claim. He found that the claim for negligence in treating B did not disclose a reasonable cause of action because the duty of care the respondents allegedly owed to B’s parents would conflict with the duty of care owed to B. The motion judge did not give leave to amend the claim. He also found that the claim for failure to warn did not plead sufficient material facts and struck that claim with leave to amend. A appealed the motion judge’s order striking her claim based on negligence in treating B without leave to amend.

issues:

1. Did the motion judge err in finding that the claim did not fall within an established category of duty of care?
2. Did the motion judge err in finding that the respondents did not owe B’s parents a duty of care under the Anns/Cooper analysis because such a duty would conflict with the duty owed to B?
3. Did the motion judge err in denying leave to amend?

holding:

Appeal allowed.

reasoning:

1. No. The Court found the claim based on negligence in treating B did not fall within an established category of duty of care. In the circumstances, the Court agreed with the motion judge that, in the absence of any legal analysis on the issue, the decision in Ahmed could not be said to have established that a treating psychiatrist owed a duty of care to the family of a patient if the patient threatened and exhibited signs of violence toward family members. Since the Court was not persuaded that the duty of care proposed in this case fit within an established category, it was necessary to undertake the Anns/Cooper analysis.
2. Yes. The Court found that the motion judge erred in finding that the respondents did not owe B’s parents a duty of care under the Anns/Cooper analysis because of a conflict between a duty owed to B and the proposed duty owed to his parents. The Court concluded that the motion judge’s findings on this issue were speculative, particularly in the context of a motion to strike. On the basis of the facts pleaded in the statement of claim, B and his parents did not have conflicting interests. On the contrary, they had the same interest. That is, all three had an interest in B receiving appropriate treatment, which might have prevented him from killing his father. Based on the pleadings and the applicable law, the Court was not persuaded that there was necessarily an inherent conflict between the duty owed to B and the proposed duty owed to his parents such that the action was doomed to fail. Such a conflict might be established on a proper evidentiary record, but it was not so obvious on the pleadings that the action should have been dismissed at that stage.
3. Not considered. Given its conclusion on the first two issues, it was not necessary to address A’s position that she should have been allowed to amend her claim, including to assert a claim based on the loss of companionship and support from B under the Family Law Act.

Carcillo v. Ontario Major Junior Hockey League, 2025 ONCA 652

[Tulloch C.J.O, Paciocco and Nordheimer JJ.A.]

Counsel:

J. Sayce, V. Calina, and C. Leach, for the appellants

M. Eizenga, G. Beaulne, E. Schiff, and M. Torgov, for all the respondents

Keywords: Sports Law, Hockey, Torts, Systemic Negligence, Abuse, Civil Procedure, Class Proceedings, Certification, No Reasonable Cause of Action, Common Issues, Preferable Procedure,, Litigation Plan, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5, Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15, s. 26, AIC Limited v. Fischer, 2013 SCC 69, Rumley v. British Columbia, 2001 SCC 69, Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401 (C.A.), Cavanaugh v. Grenville Christian College, 2014 ONSC 290 (Div. Ct.), Carcillo v. Canadian Hockey League, 2023 ONSC 886, Carcillo v. Canadian Hockey League, 2023 ONSC 5798, Bowman v. Ontario, 2022 ONCA 477, Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501, 728654 Ontario Inc. v. Ontario (2005), 202 O.A.C. 4 (C.A.), Pioneer Corp. v. Godfrey, 2019 SCC 42, Organization of Veterans of the Polish Second Corps v. Army, Navy & Air Force Veterans in Canada (1978), 20 O.R. (2d) 321 (C.A.), Astgen v. Smith, [1970] 1 O.R. 129 (C.A.), Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165, Maple Leaf Foods Inc. v. Schneider Corp. (1998), 42 O.R. (3d) 177 (C.A.), London Association for Protection of Trade v. Greenlands, Limited, [1916] 2 A.C. 15 (H.L.), Toews v. Isaac, [1929] 2 D.L.R. 719 (Man. C.A.), Body v. Murdoch, [1954] O.W.N. 658 (H.C.), G.S. v. Canada (Attorney General), 2001 SKQB 427, Barrett v. Harris (1921), 51 O.L.R. 484 (S.C.), Brown v. Lewis (1896), 12 T.L.R. 455, Orchard v. Tunney, [1957] S.C.R. 436, Lysko v. Braley (2006), 79 O.R. (3d) 721 (C.A.), Kinver v. The Phoenix Lodge, I.O.O.F. (1885), 7 O.R. 377 (C.A.), The Hibernian Dance Club v. Murray, [1997] P.I.Q.R. P46 (C.A.), 1196303 Ontario Inc. v. Glen Grove Suites Inc., 2015 ONCA 580, Trident Holdings Ltd. v. Danand Investments Ltd. (1988), 64 O.R. (2d) 65 (C.A.), Fulawka v. Bank of Nova Scotia, 2012 ONCA 443, Canada v. Greenwood, 2021 FCA 186, Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, Black v. Owen, 2017 ONCA 397, Sriskandarajah v. United States of America, 2012 SCC 70, Pearson v. Inco Ltd. (2006), 78 O.R. (3d) 641 (C.A.), Housen v. Nikolaisen, 2002 SCC 33, Dennis v. Ontario Lottery and Gaming Corporation, 2013 ONCA 501, Waldman v. Thomson Reuters Corporation, 2012 ONSC 1138, Robinson v. Rochester Financial Ltd., 2010 ONSC 463, Amyotrophic Lateral Sclerosis Society of Essex v. Windsor (City), 2015 ONCA 572, Caputo v. Imperial Tobacco Ltd. (2004), 236 D.L.R. (4th) 348 (Ont. S.C.), Canada v. John Doe, 2016 FCA 191, Sharp v. Royal Mutual Funds Inc., 2021 BCCA 307, Soldier v. Canada (Attorney General), 2009 MBCA 12, Canada (Attorney General) v. Fontaine, 2017 SCC 47, Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48, McCracken v. Canadian National Railway Company, 2012 ONCA 445, Bellaire v. Independent Order of Foresters (2004), 5 C.P.C. (6th) 68 (Ont. S.C.), Price v. Smith & Wesson Corporation, 2025 ONCA 452, Davis v. Amazon Canada Fulfillment Services, ULC, 2025 ONCA 421, Baxter v. Canada, 2005 CanLII 18717 (Ont. S.C.), Lipson v. Cassels Brock & Blackwell LLP, 2011 ONSC 6724, Hodge v. Neinstein, 2017 ONCA 494, Keatley Surveying Ltd. v. Teranet Inc., 2015 ONCA 248, Harrison v. Afexa Life Sciences Inc., 2018 BCCA 165, Pearson and Markson v. MBNA Canada Bank, 2007 ONCA 334, L’Oratoire Saint Joseph du Mont Royal v. J.J., 2019 SCC 35, V.L.M. v. Dominey Estate, 2023 ABCA 261, Cassano v. Toronto-Dominion Bank, 2007 ONCA 781, Spina v. Shoppers Drug Mart Inc., 2024 ONCA 642, Fantl v. Transamerica Life Canada, 2016 ONCA 633, Kirk v. Executive Flight Centre Fuel Services, 2021 BCSC 987, Bouchanskaia v. Bayer Inc., 2003 BCSC 1306

facts:

The appellants alleged that for decades, many young players in major junior hockey leagues endured serious abuse. In response, three former players initiated a proposed class action lawsuit seeking to sue the four major junior hockey leagues and all sixty teams on behalf of thousands of players subjected to systemic abuse over a fifty-year span, arguing that certification as a class action was warranted.

The Superior Court rejected the motion, refusing to certify the proceeding as a class action, concluding that the proposed class action was unmanageable, and that the appellants’ counsel had failed to provide a litigation plan capable of addressing the scale and complexity of the case. The motion judge accepted that each representative plaintiff had viable claims against his own team or teams, the relevant regional league, and the Canadian Hockey League, but concluded that there was no cause of action against teams for which the plaintiffs had never played. He held that no common issues existed across the proposed class, since there was no single, uniform system of conduct and establishing liability would require individualized trials and determined that the proposed class action was not the preferable procedure due to its extraordinary scope and complexity, which rendered it unmanageable. After refusing certification, the motion judge suggested that the litigation proceed through joinder of multiple individual actions, and following several hearings, issued an order approving a plan to implement this strategy.

issues:

1. Did the motion judge err in finding that the case failed to disclose a valid cause of action?

2. Did the motion judge err in finding that the case did not raise common issues suitable for class-wide resolution?

3. Did the motion judge err in finding that the case was not the preferable procedure for resolving the claims?

holding:

Appeal dismissed.

reasoning:

1. Yes. The Court held the appellants satisfied the cause of action requirement under section 5(1)(a) of the Class Proceedings Act, 1992 (“CPA”), as the motion judge recognized that they advanced viable systemic negligence claims against both the CHL and the relevant regional league corporations. The claim that the individual teams bore legal responsibility for governance failures at the league level could not be said to be hopeless or plainly and obviously bound to fail, and the motion judge erred by applying too rigorous a standard and overlooking plausible legal pathways for team liability. Reviewing the motion judge’s ruling on a standard of correctness, the Court found that the motion judge erred by not reading the pleadings generously.

The appellants’ theory of collective liability rested on two core propositions. First, that each league was an unincorporated association comprised of its member teams and its league corporation. Second, that the member teams bore responsibility for systemic league-level misconduct because they, directly or through their appointed governors, were the governing authorities of the league. The Court found that the motion judge’s conclusion rejecting both premises was in error, as both propositions were legally tenable based on the pleaded facts, which should have been assumed true at this stage.

The Court found that it was not plain and obvious that the leagues operated as unincorporated associations, and that the creation of a corporation to administer some of an association’s affairs did not necessarily extinguish the association. The Court stated that the appellants’ theory did not necessarily require “piercing the corporate veil” of the league corporations, that such questions were highly fact-dependent and inappropriate for resolution at the pleadings stage. By rejecting the unincorporated association theory outright, the Court believed the motion judge exceeded his limited role at certification and should have read the pleadings generously, treated the pleaded facts as true, recognized that the allegations were not doomed in law, and left the factual determination of the leagues’ status for trial.

The Court found that the appellants’ theory that the teams were liable for league-level failures because they governed the leagues directly or through appointed governors was legally tenable. The Court stated that the appellants pleaded sufficient facts to engage both personal and vicarious liability pathways, alleging that the OHL Constitution equated governors with the teams themselves and that each regional constitution designated league governors as agents of their appointing teams. The Court held that these allegations were sufficient to satisfy the cause of action requirement and that whether the leagues were unincorporated associations, whether governors acted as agents of the teams, and whether their governance decisions gave rise to personal or vicarious liability were fact-intensive issues to be determined at trial. The Court believed at this preliminary stage the motion judge erred in striking them down.

2. Yes. The Court found that the motion judge’s analysis of the common issues requirement reflected material legal errors but stated it was unnecessary to determine whether the appellants met the correct legal test for commonality in light of the conclusion on preferability. The Court stated that section 5(1)(b) of the CPA required that certification promote efficiency by ensuring that allowing the suit to proceed as a class proceeding would avoid duplication of fact-finding or legal analysis, and that the common issues threshold was intentionally low. The Court explained that the evidentiary standard, being some basis in fact, reflected this low bar, and that specific guidance existed for institutional abuse class actions. The Court emphasized that courts must apply precedential cases consistently, treat similar cases alike, and on appeal, extricable questions of law were reviewed for correctness.

The Court found that although the motion judge accurately summarized the governing principles, he applied them incorrectly in three ways. First, he imposed an improperly high bar. Second, he exceeded the limits of the “some basis in fact” standard. Third, he disregarded precedent from Rumley v. British Columbia and Cloud v. Canada.

3. No. The Court found that the appellants’ proposed class action ultimately failed on the preferability requirement. The Court agreed with the motion judge that the action was unmanageable because of its unprecedented scope and complexity, and that such a proceeding would collapse under its own weight, frustrating the objectives of access to justice, judicial economy, and behaviour modification.

Section 5(1)(d) of the CPA required the representative plaintiff to demonstrate that a class proceeding would be manageable, efficient, and fair, and preferable to any alternative procedure, with both conditions needing to be met. The Court explained that the scope and complexity of a proposed proceeding were central to assessing manageability, and that a class action should not be certified if its breadth and complexity were so overwhelming that it became unwieldy, unless individual litigation would pose the same difficulties. The Court emphasized that determining the manageability of a class action was a discretionary judgment attracting “special deference,” and that subsection 5(1)(e)(ii) of the CPA required representative plaintiffs to file a litigation plan outlining how the class proceeding would be advanced in an efficient manner.

The Court deferred to the motion judge’s conclusion that the proposed class action would be unmanageable. The Court stated that the motion judge was best positioned to make this judgment, emphasized that the litigation plan failed to address these challenges, and found it was open to the judge to conclude that the class proceeding would collapse. The Court also held that the appellants’ attempt to fundamentally alter their case on appeal came far too late and was impermissible. The Court clarified that the motion judge’s broader comments on systemic negligence class actions did not affect the binding nature of precedential decisions, nor did the unavailability of aggregate damages bar certification. The Court finally asserted that joinder was rarely suitable for thousands of claimants.

Taylor v. Zents, 2025 ONCA 662

[Simmons, Wilson and Madsen JJ.A.]

Counsel:

C.G. Paliare and T.H. Lie, for the appellant

J.T. Curry and D. Knoke, for the respondents

Keywords: Torts, Negligence, MVA, Damages, Civil Procedure, Evidence, Witnesses, Credibility, Rule in Browne v Dunn, Admissibillity, Hearsay, Expert Evidence, Participant Experts, Juries, Discharge, Family Law Act, R.S.O. 1990, c. F.3, Rules of Civil Procedure, rr. 47.02, 53, Browne v. Dunn (1893), 6 R. 67 (H.L.), R. v. Quansah, 2015 ONCA 237, leave to appeal refused, [2016] S.C.C.A. No. 203, R. v. Lyttle, 2004 SCC 5, R. v. John, 2017 ONCA 622, Cannon v. Cemcor Apartments Inc., 2017 ONCA 378, King v. Colonial Homes Ltd., [1956] S.C.R. 528, Penate v. Martoglio, 2024 ONCA 166, Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, Westerhof v. Gee Estate, 2015 ONCA 206, leave to appeal refused, [2015] S.C.C.A. No. 198, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. McManus, 2017 ONCA 188

facts:

The respondent, P.T., was injured in a motor vehicle accident when the appellant, travelling at 80 km/h, rear-ended his car, propelling him off the road and into a ditch.

The respondents sued the appellant for negligence, claiming damages for personal injuries, past and future loss of income, and future care costs. The main injury he alleged was a minor traumatic brain injury (“mTBI”) or concussion. The respondent’s wife also sought damages under the Family Law Act for loss of care, guidance, and companionship.

Over the following years, the respondent sought treatment from various medical professionals and reported persistent cognitive and physical symptoms.

At trial, the appellant’s counsel attempted to challenge P.T.’s credibility by highlighting inconsistencies in his reported symptoms. However, a key procedural issue arose when appellant’s counsel questioned the respondent’s medical witnesses about the ear fluid inconsistency without first confronting the respondent himself about it, breaching the rule in Browne v. Dunn. This led the trial judge to strike the jury, finding that the evidence had “irreparably tainted” their perspective and could not be remedied by instructions or the respondent’s recall.

The trial judge found in favour of the respondent, accepting the evidence of his medical experts and finding them credible, while rejecting the defence’s claims of malingering. The judge concluded that the respondent had suffered a mTBI and post-concussion syndrome as a result of the accident, awarding him and his wife over a million dollars in damages.

The appellant appealed.

issues:

1. Did the trial judge err in finding a violation of the rule in Browne v. Dunn?

a. Did the “ear fluid evidence” impeach the respondent’s credibility?

b. Since the respondent had already been cross-examined about inconsistencies in reporting his symptoms, does the failure to address this particular symptom constitute a breach of the Rule in Browne v. Dunn?

c. Did the trial judge err in principle by concluding that the ear fluid evidence was hearsay?

2. Did the trial judge err in discharging the jury?

3. Did the trial judge err in qualifying Dr. H as an expert under r. 53?

4. Did the trial judge misapprehend the evidence in her assessment of the appropriate damages?

holding:

Appeal dismissed.

reasoning:

1. No. The trial judge did not err. The trial judge correctly found a breach of the Rule in Browne v. Dunn, as the appellant’s counsel deliberately chose not to confront the respondent with a significant piece of evidence despite intending to use it to challenge his credibility through expert witnesses. In coming to this conclusion, the Court considered three sub-issues:

a. First, the Court held that challenging Dr. H’s opinion on the injury’s nature and extent also attacked the respondent’s credibility. The two were inextricably woven together, making it impossible to challenge one without also undermining the other. Dr. H’s concession of “marked discrepancy” reflected poorly on the credibility of the respondent. The respondent’s explanation for not reporting the ear fluid for years would have been directly relevant to assessing his credibility. It follows that failing to elicit that explanation from him in cross-examination breached Browne v. Dunn, even if the violative question also probed Dr. H’s opinion.

b. Secondly, the Court affirmed that although the appellant’s counsel cross-examined the respondent on other reporting inconsistencies, that did not remove the obligation to confront him with the unreported ear fluid. Browne v. Dunn does not require putting “every scrap of evidence” to a witness, but the ear-fluid issue was central. The suggestion was that the respondent invented a major symptom years later to exaggerate his injuries. The ear fluid was medically significant, and the appellant used its late reporting to portray the respondent as a malingerer. Fairness required giving him the chance to respond. The trial judge found that counsel had deliberately avoided this issue on cross-examination, a finding that was unchallenged on appeal by the Court, and correctly held that the principles outlined in Browne v. Dunn had been violated.

c. Lastly, the Court acknowledged that the trial judge should not have described the hearsay nature of the ear fluid evidence as complicating the breach. However, this did not impact her finding that the principles established in Browne v. Dunn were violated. The Court affirmed that the problem was not with the trial judge’s characterization of the nature of the records from the Mayo Clinic. Rather, it lay in the fact that the documents were not presented to the respondent, thereby denying him the opportunity to respond. That was what led to the breach of Browne v. Dunn and the unfairness the trial judge found could not be remedied short of discharging the jury. There was no basis for appellate intervention.

2. No. The trial judge did not err in discharging the jury. The right to a civil trial by jury is a fundamental substantive right that must not be deprived lightly. However, it is not absolute. It must be balanced against the overarching right of all parties to a fair trial. The trial judge supplied a reasoned justification for her decision, drawing on her own observations of the jury and the courtroom. She noted that the “Perry Mason” moment prompted an audible reaction from the jury and irreparably tainted their ability to assess credibility fairly. The trial judge expressly considered and rejected lesser remedies, such as recalling the respondent or issuing a corrective instruction. She explained that no such instruction “would be strong enough to remedy the damage.” She also found that recalling the respondent could further prejudice the jury against him. The Court was of the view that the trial judge was in the best position to determine whether the jury had been irreparably tainted, and her conclusion was entitled to deference. The timing of the trial judge’s decision to raise the Browne v. Dunn issue did not render her decision capricious, as breaches of the rule are not always immediately apparent, and the significance of the evidence may only become clear as the trial unfolds. The trial judge’s reasons on this issue were clear and cogent. There was no basis for appellate intervention.

3. No. The trial judge did not err in qualifying Dr. H as an expert witness. The trial judge conducted a voir dire and concluded that Dr. H, while the respondent’s treating psychologist and participant expert, could also be qualified as a r. 53 expert. The trial judge found that Dr. H “presented as anything but an advocate” and “appeared neutral and objective” when answering questions, handling cross-examination “with dignity,” and was “credible and believable.” Although the trial judge did not expressly proceed through each step set out in White Burgess (the leading decision on the admissibility of expert evidence), she plainly appreciated that independence and impartiality were at issue and gave thorough reasons for concluding that Dr. H was capable of being objective and impartial. The trial judge reviewed Dr. H’s report and found that she “arrived at her diagnosis and conclusions in a fair and even-handed manner,” and that neither her written report nor her responses in cross-examination suggested advocacy for the respondent. The court emphasized that a participant expert may be qualified as a r. 53 expert, so long as their relationship with the plaintiff does not preclude them from fulfilling their duty to provide fair, impartial, and objective evidence. There was no realistic concern that Dr. H was unable or unwilling to comply with her duty of impartiality. The trial judge’s admissibility decision was entitled to deference.

4. No. The trial judge’s finding that the evidence supporting the respondent’s head injury was “overwhelming” was firmly rooted in admissible evidence, not hearsay. References to diagnoses by non-testifying physicians served only as background and did not form the basis of her conclusions. The trial judge relied on the consensus definition of concussion provided by expert witnesses and explained why the respondent met that definition, without reference to hearsay. Similarly, her mention of non-testifying physicians regarding post-concussion syndrome was to clarify terminology, not to support her findings. The assessment of damages flowed directly from the accepted evidence of the respondent, lay witnesses, and medical experts, all of whom agreed that the respondent suffered a life-altering brain injury and would not return to his pre-accident level of function or occupation. There was no basis for appellate intervention.

Ontario Securities Commission v. Cacoeli Asset Management Inc., 2025 ONCA 654

[Hourigan, Zarnett and Pomerance JJ.A.]

Counsel:

S. Bieber, C. Rempel and C. Harrell, for the appellant

E. Hoult and H. Wong, for the respondent

I. Aversa and M. Spence, for the Receiver

H. Fisher, for CMLS Financial Ltd.

Keywords: Securities, Enforcement, Receiverships, Securities Act, R.S.O. 1990, c. S.5, ss.129 (1) (2) (8) and s.126(5.1), OSC v. Future Solar, 2015 ONSC 2334, Jorshal Enterprises Limited v. J.D.H. Holdings Limited, 2025 ONSC 3216

facts:

Cacoeli businesses are engaged in acquiring, holding and managing residential properties. The Ontario Securities Commission (“OSC”) started investigating Cacoeli after receiving a complaint from the firm’s former chief financial officer. The investigation is ongoing. After commencing its investigation, the OSC sought the appointment of a receiver pursuant to s. 129(1) of the Securities Act.

The OSC’s allegations relate to transactions that have taken place since 2021 or 2022. Cacoeli used investor equity from certain projects to fund other projects, and it used proceeds from the sale of existing projects to repay loans taken out to fund deposits on a proposed property purchase.

The appellants admitted that equity and/or funds were diverted between projects. They argued, however, that such uses were permitted and that J.L. either had an intention to, or did, provide investors with an interest in the other projects to which such equity/funds were diverted. The application judge rejected this argument and found that diversion of funds was not permitted.

Cacoeli asserted the court should require a strong prima facie case of potential breaches of the Act to appoint a receiver. The application judge rejected that argument and found that the correct evidentiary standard is a serious concern that there have been possible breaches of the Act. She also found that the OSC had met its onus. On appeal, Cacoeli submitted that the application judge erred in declining to impose a strong prima facie evidentiary standard and that she erred by finding the OSC had met its onus.

issues:

1. Did the application judge err in declining to impose a strong prima facie evidentiary standard?
2. Did the application judge err in finding the OSC had met its onus?

holding:

Appeal dismissed.

reasoning:

1. No. The application judge did not err in declining to impose a strong prima facie evidentiary standard. The appellants argued the appointment of a receiver under s. 129 of the Act was a final and powerful remedy that wrests control of a company’s assets and legal rights from management and delivers the power to a receiver. they argued that the statutory scheme – read as a whole and in light of the exceptional nature of a receivership – requires the OSC to establish a strong prima facie case of alleged breaches of the Act for a receiver to be appointed. The Court did not accept the underlying premise of this submission.

The Court found that the “serious concern” standard is consonant with the language, context and purpose of s. 129. The ability to seek a receiver is consistent with the OSC’s statutory mandate to pursue timely and effective steps to protect investors and the capital markets. The Court noted that imposing an onerous evidentiary standard for a receivership would impede the public protection mandate of the OSC, as it could potentially make it impossible for the OSC to obtain a receivership at the early stages of an investigation when the facts are not fully known.

The appellants also argued that s.126(5.1) of the Act has specific statutory language that imposes a serious issue to be tried standard. The Court was not persuaded by this submission and did not accept that the legislature’s expressed intent for a lower standard for the continuation of freeze orders means that a higher standard applies to receivership orders.

2. No. Given the Court’s finding that the strong prima facie standard was inapplicable, it was unnecessary to consider this ground of appeal further. There was no question that the OSC had established a serious concern that there have been possible breaches of the Act, which was the appropriate evidentiary standard.

Traders General Insurance Company v. Rumball, 2025 ONCA 656

[Copeland, Wilson and Rahman JJ.A.]

Counsel:

F. Longo, B. Fromstein and K. Kerwin, for the appellant

E. Grossman and A. Dos Reis, for the respondent

A. Voudouris, M.S. Rastin and J. M. Golosky, for the intervenor Ontario Trial Lawyers Association

Keywords: Torts, Negligence, MVA, Contracts, Insurance, Statutory Accident Benefits, Income Replacement Benefits, Statutory Interpretation, Burden of Proof, Statutory Accident Benefits Schedule, O. Reg. 34/10, s. 5(1)(1), s. 6(2)(b), Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), Licence Appeal Tribunal Act, S.O. 1999, c. 12, Sch. G, s. 11(6), Insurance Act, R.S.O. 1990, c. I.8, Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, O. Reg. 403/96, s.5(2)(b), Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479,  Constitution Insurance Co. v. Coombe (1993), 15 O.R. (3d) 461 (Gen. Div.), aff’d (1997), 36 O.R. (3d) 308 (C.A.), leave to appeal refused, [1997] S.C.C.A. No. 614, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Coombe v. Constitution Insurance Co., [1978] I.L.R. 1-1034 (Ont. H.C.), aff’d in part, 1979 CarswellOnt3416 (C.A.), Coombe v. Constitution Insurance Co. (1980), 29 O.R. (2d) 729 (C.A.), leave to appeal to S.C.C. refused, 16391 (February 3, 1981), Nash v. Aviva General Insurance Company, 2022 ONSC 6723, C.P. v. Certas Home and Auto Insurance Company, 2022 ONSC 5978 (Div. Ct.), Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, leave to appeal refused, [2020] S.C.C.A. No. 7

facts:

The appellant, SR, was injured in a motor vehicle accident on December 28, 2014. She applied to her insurer, Traders General Insurance Company (“Traders”), for statutory accident benefits (“SABs”), specifically income replacement benefits (“IRBs”), due to her inability to work. The Ontario Statutory Accident Benefits Schedule (the “Schedule”) states at s. 5(1)(1) that IRBS are payable to an insured during the first 104 weeks of disability, if, because of the accident, the insured suffers a “substantial inability to perform the essential tasks of their [pre-accident] employment.” Section 6(2)(b) sets out a more stringent test for IRBs after 104 weeks of disability; the insured must be “suffering a complete inability to engage in any employment or self-employment for which [they are] reasonably suited by education, training or experience.”

Traders paid SR IRBs from January 4, 2015, to February 24, 2015. On February 25, 2015, SR returned to her pre-accident position as an educational assistant working with special needs children. SR stopped working again on May 31, 2015, asserting that chronic pain from the accident rendered her unable to do the physical tasks required for her job. SR then claimed IRBs from Traders from May 30, 2015 onwards, including beyond the 104-week mark. Traders disputed the claim to the License Appeal Tribunal (the “LAT”).

A LAT Adjudicator determined that SR was entitled to IRBs until December 28, 2016 (the 104-week/two-year mark), as she had met the requisite test by proving that her post-accident impairments prevented her from performing essential tasks of the educational assistant role. However, the Adjudicator declined to grant SR benefits beyond 104 weeks, holding that SR did not suffer a complete inability to do work for which she was reasonably suited by education, training or experience. Noting that SR had taken a wedding planning course and started a business as a wedding planner before the accident, the Adjudicator concluded that wedding planning remained a suitable job for SR. The Adjudicator weighed the totality of the evidence, including conflicting opinions about the severity of SR’s injuries and their impact on future work given by the three medical experts called by each side. Ultimately, based on SR’s testimony that her pain had plateaued, as well as evidence that she participated in volunteer work and caregiving for her sick father after the accident, the Adjudicator declined to grant benefits beyond 104 weeks. The Adjudicator subsequently dismissed SR’s request for reconsideration.

The Divisional Court dismissed SR’s appeal, holding that the Adjudicator applied the correct test for post-104-week IRBs and made no errors in concluding that SR did not meet the statutory criteria. The Divisional Court observed that the s. 6(2)(b) test was the only relevant test in this context and stated that it did not include consideration of employment in a competitive, real-world setting or require that suitable employment be comparable in status and pay to the insured’s pre-accident work.

issue:

Did the Divisional Court err in interpreting and applying the test under s.6 of the Schedule for income replacement benefits beyond the first 104 weeks of disability?

holding:

Appeal dismissed.

reasoning:

No. On appeal, SR submitted that the Divisional Court misstated, misinterpreted and misapplied the s. 6(2)(b) test. Relying on Burtch, SR asserted that the complete inability test must assess employment in a competitive, real-world context and must consider the remuneration and status of any potentially suitable job. Moreover, SR contended that the lower court’s narrow interpretation of s. 6(2)(b) defied legislative intent, since SABs are meant to provide car accident victims with consumer protection and financial relief. Finally, SR cited Coombe to argue that the Divisional Court erroneously reversed the onus by placing the burden of proof on SR instead of Traders.

In response, Traders submitted that the statutory test was unambiguous and did not include the language SR wished to incorporate. Reading in extra considerations would simply extend the pre-104-week test contrary to jurisprudence and legislative intent. Traders also argued that SR bore the onus to prove her entitlement to benefits. The Ontario Trial Lawyers Association (“OTLA”) intervened, submitting that the lower Court erred in interpreting and applying the test for post-104-week IRBs, and should have followed Coombe but not Burtch.

The Court held that s. 6(2)(b) of the Schedule establishes an evidence-based test that clearly requires an insured person to suffer a complete inability to engage in employment for which they are “reasonably suited by education, training or experience” to qualify for benefits after 104 weeks. Decision-makers applying the test must consider all relevant factors, even those not spelled out in the legislation, including the insured’s medical status, job market realities and a job’s nature, status and reward. Nevertheless, such factors are not stand-alone components of the test, which remains an evidence-driven, contextual analysis.

Regarding Burtch, the Court disagreed with both SR and Traders’ submissions. While Burtch provided helpful insight into the s. 6(2)(b) analysis, it did not mandate that the proposed employment be realistic in the competitive job market and commensurate to prior work. However, the Court did not endorse Traders’ stance that these factors need not be considered. Whether a proposed job is actually available, compensated comparably to earlier work and whether substantial retraining is required are all relevant considerations, but not requirements for an alternative job to be deemed suitable under the test. Though the insured in Burtch was not formally certified to drive long-haul trucks at the time of adjudication, the appellate court still held that long-haul trucking was suitable work for him considering his prior education and experience.

The Court deemed Coombe consistent with Burtch, with both decisions following the stringent language from s. 6(2)(b) requiring an insured’s complete inability to engage in reasonably suitable work to access benefits beyond 104 weeks. On the onus question, while the insurer in Coombe bore the burden of proof to suspend a court order mandating payment of benefits, the onus under s. 6(2)(b) remains on the insured to prove their entitlement to the SABs sought.

Applying this framework to SR’s situation, the Court concluded that the Divisional Court did not err in upholding the Adjudicator’s decision. The Adjudicator correctly articulated and applied the s. 6(2)(b) test for post-104-week IRBs. She carefully considered the totality of available evidence in reaching her determination that SR had not suffered a complete inability to do reasonably suitable work and thus did not qualify for continuing benefits. The Court declined to overrule the Adjudicator’s assessment that SR could work as a wedding planner, a job suited to SR’s training and experience.

Iliuta v. Li, 2025 ONCA 651

[Miller, Zarnett and Madsen JJ.A.]

Counsel:

S.I., acting in person

I. Marcovitch, for the respondent

Keywords: Family Law, Parenting, Child Support, Section 7 Expenses, Spousal Support, Imputation of Income, Marriage Contracts, Setting Aside, Family Law Act, R.S.O. 1990, c. F.3, s. 56(4), O. Reg. 391/97: Child Support Guidelines, s. 7, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

facts:

The parties had a brief marriage and are the parents of a seven-year-old child. Before their marriage, the parties entered into a marriage contract, intended to govern property entitlements in the event of separation. Unable to agree on rights at separation, they participated in a seven-day trial to address all legal issues arising from their separation.

The trial judge determined issues including parenting arrangements; imputation of income; child support, including s. 7 expenses and retroactivity; spousal support; the validity of the parties’ marriage contract; and equalization.

The appellant, who is the father, appealed the order and brought a motion seeking the admission of substantial fresh evidence.

The appellant disputed several findings of fact and questioned the credibility of the trial decision, claiming that it contained 42 errors.

issues:

1. Did the trial judge err in her parenting arrangement order?
2. Did the trial judge err in her imputation of the appellant’s income?
3. Did the trial judge err in her decision to treat childcare expenses differently from extracurricular expenses?
4. Did the trial judge err in refusing to grant spousal support?
5. Did the trial judge err in finding a valid marriage contract?

holding:

Motion and appeal dismissed.

reasoning:

1. No. The trial judge did not err in ordering the respondent mother to have sole decision-making authority on major parenting issues. The order was appropriate given the mother’s evidence concerning the appellant’s abusive conduct during the marriage. The trial judge also accepted that the current apportionment of parenting time was in the child’s best interests. She acknowledged the respondent’s concerns and the appellant’s admission that his alcohol use is, in his own words, “on the high side.” While the Court recognized the appellant’s ardent wish to have a 50/50 parenting arrangement, there was no error in the trial judge’s conclusion on these issues, given her factual findings and correct statements of law.
2. No. The trial judge did not err. The trial judge found that the appellant, a highly qualified chemical engineer, was voluntarily underemployed, having limited his job search unreasonably and shown insufficient diligence in seeking suitable employment. Despite expert evidence that he could earn over $100,000 annually, the trial judge imputed a modest income of $50,000 per year, a finding well supported by the evidence. There was therefore no basis for appellate intervention on this issue.
3. No. The trial judge did not err. The trial judge properly distinguished between childcare and extracurricular expenses under s. 7 of the Child Support Guidelines, Reg. 391/97, requiring the appellant to contribute only to the former. Childcare expenses were found to be both reasonable and necessary to enable the respondent’s employment, whereas the appellant was neither consulted on nor consented to the extracurricular expenses. The Court concluded that this distinction was justified and not internally inconsistent.
4. No. The trial judge found the appellant’s entitlement to spousal support was “exceeding[ly] thin,” with no claim for compensatory support, and determined that any economic hardship he faced was due to his own “voluntary underemployment”. The Court rejected the argument that his financial difficulties resulted from the disadvantage sustained during the short marriage, finding instead that his narrow job search and continued underemployment were the actual causes. The trial judge correctly applied the law to the facts, and there was no basis for appellate intervention.
5. No. The trial judge found the marriage contract valid, noting that both parties exchanged financial statements and that the appellant, “a highly educated and sophisticated individual”, understood the agreement he was signing. Although the appellant chose not to seek independent legal advice, he had the opportunity to do so. The trial judge also found it fair and equitable for the respondent to receive credit for the equity she acquired and built up in her home. There was no basis to set aside the contract under s. 56(4) of the Family Law Act, and the trial judge’s interpretation was entitled to deference: Sattva Capital Corp. v. Creston Moly Corp. There was therefore no basis for appellate intervention.

SHORT CIVIL DECISIONS

Rebello v. Ontario (Attorney General), 2025 ONCA 665

[Thorburn, Coroza and Gomery JJ.A.]

Counsel:

TR, acting in person

A. Mortimer and B. Lekhi, for the responding parties

Keywords: Civil Procedure, Striking Pleadings, Frivolous, Vexatious, Abuse of Process, No Reasonable Cause of Action, Appeals, Review, r. 2.1.01 of Rules of Civil Procedure, rr. 2.1.01 and 59.06, Rebello v. Ontario, 2025 ONCA 202, Tanya Rebello v. His Majesty the King in Right of Ontario as represented by the Attorney General of Ontario, et al., 2025 CanLII 94214 (SCC), Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720

Stile Carpentry Ltd. v. 2004424 Ontario Inc., 2025 ONCA 669

[Miller J.A.]

Counsel:

PP, acting in person for the moving party

J. Diacur, for the responding party

Keywords: Civil Procedure, Representation by Lawyer, Corporations, Appeals, Perfection, Extension of Time, Rules of Civil Procedure, r. 15.01(2), GlycoBioSciences Inc. (Glyco) v. Industria Farmaceutica Andromaco, S.A., de C.V. (Andromaco), 2024 ONCA 481, Stayside Corporation Inc. v. Cyndric Group Inc., 2024 ONCA 630, Leisure Farm Construction Limited v. Dalew Farms Inc. et.al., 2021 ONSC 105

Singh v. Feneich, 2025 ONCA 672

[Gillese, Favreau and Rahman JJ.A.]

Counsel:

A. Mao, for the appellant

G. Weedon and M. Bui, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Summary Judgment, Adjournments

Samiy Retail Inc. v. Kallarakkal, 2025 ONCA 671

[Gillese, Favreau and Rahman JJ.A.]

Counsel:

A. Mao, for the appellant

G. Weedon and M. Bui, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Summary Judgment, Adjournments

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.