COURT OF APPEAL SUMMARIES (February 17 – 21) – Your Source for Real-Time News

Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 17, 2025.

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In Peedham v. 1000516033 Ontario Ltd., the issue related to whether a bona fide purchaser of real property for value under power of sale did so without notice of an unregistered option granted to the tenant of the property to purchase it. The Court allowed the appeal and remitted the matter back to the Superior Court for a decision based on a proper evidentiary record. Given the absence of evidence on the issues, the Court could not determine whether the option to purchase was enforceable.

In Marshallzehr Group Inc. v. La Pue International Inc., the Court denied leave to appeal a decision of the motion judge regarding an Approval and Vesting order
Wishing everyone an enjoyable weekend.

In 2730453 Ontario Inc. v. 2380673 Ontario Inc., the Court affirmed that an oral agreement for the purchase of sale of land can be enforced, nothwithstanding the Statute of Frauds (which requires evidence of an interest in land to be in writing), through the doctrines of part performance and detrimental reliance. In this case, the part performance, irremediable performance and detrimental reliance included the retention by the buyer of counsel, the conduct of due diligence, the negotiation of closing documents with the vendor’s counsel that had been prepared by vendor’s counsel, including a draft agreement of purchase and sale, and the tendering of closing funds.

In MJL Enterprises Inc. v. SAL Marketing Inc., the Court upheld the trial judge’s ruling that SMI did not breach the parties’ distribution agreement by copying iSTAR’s features and functionalities, finding that MJL failed to provide concrete evidence of copying. The Court affirmed that the trial judge properly excluded an expert report lacking technical analysis and hearsay documents that did not meet admissibility criteria.

Coscarella Dentistry Professional Corporation v. Harvey, was an appeal involving a dentist accessing his own clients’ files in order to inform them that he was moving his practice to a location across the street. The Court agreed with the trial judge that this did not amount to improper solicitation of patients or conversion, as there is no prohibition on soliciting one’s own patients.

In Chong v Chong, the Court dismissed the appellant’s appeal of the motion judge’s decision to enforce a settlement agreement.

Anthony v. Binscarth Holdings GP Inc. was an appeal of the dismissal of an application regarding the interpretation of s. 11(1) of the Limited Partnership Act and the payout of distributions to the limited partners. The Court held that there was no requirement in the limited partnership agreement or the Act requiring annual payouts of all profits. It further held that the Accumulations Act (which imposes limits on how long funds can be held in trusts, statutorily enforcing the rule against perpetuities) applied to testamentary trusts and had no application in this context.

Other decisions this week delved into topics such as contracts, arbitration clauses, vexatious litigation/abuse of process, adverse possession and prescriptive easements.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Coscarella Dentistry Professional Corporation v. Harvey, 2025 ONCA 118

Keywords: Contracts, Duty of Good Faith, Torts, Conversion, Breach of Confidence, Breach of Fiduciary Duty, Bacher v. Obar, [1989] O.J. No. 1392 (H.C.), aff’d [1993] O.J. No. 3578 (Ont. C.A.), Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, Bhassin v. Hyrnew, 2014 SCC 71

Peedham v. 1000516033 Ontario Ltd., 2025 ONCA 109

Keywords: Contracts, Real Property, Commercial Leases, Options to Purchase, Land Titles, Unregistered Interests, Priority, Bona Fide Purchaser for Value Without Notice, Actual Notice, Land Titles Act, R.S.O. 1990, c. L.5, Mortgages Act, R.S.O. 1990, c. M.40, Kaiman v. Graham, 2009 ONCA 77, York Condominium Corporation No. 221 v. Mazur, 2024 ONCA 5, at para. 12, Durrani v. Augier (2000), 50 O.R. (3d) 353 (S.C.J.), Benzie v. Kunin, 2012 ONCA 766, Pelham (Town) v. Fonthill Gardens Inc., 2019 ONSC 567, Turta v. Canadian Pacific Railway, [1954] S.C.R. 427, Sapusak v. 9706151 Canada Ltd., 2024 ONCA 774, Martin v. 11037315 Canada Inc., 2022 ONCA 322, United Trust Co. v. Dominion Stores Ltd., [1977] 2 S.C.R. 915, Stanbarr Services Limited v. Metropolis Properties Inc., 2018 ONCA 244, Airport Business Park Inc. v. Huszti Holdings Inc., 2023 ONCA 391, Martin v. 2670082 Ontario Corp, 2024 ONSC 3982, FirstOntario Credit Union Limited v. Nagra et al., 2024 ONSC 3398, Parkland Corporation v. 16408117 Canada Inc. et al., 2025 ONSC 201, Glassworkers Social Club v. Forestgate Leasing Inc. (1998), 40 O.R. (3d) 606 (C.A.), Belende v. Patel, 2009 CanLII 74 (Ont. S.C.)

Chong v Chong, 2025 ONCA 126

Keywords: Contracts, Enforceability, Defences, Unconscionability, Mutual Mistake, Misrepresentation, Civil Procedure, Settlements, Enforcement, Appeals, Fresh Evidence, Uber Technologies Inc. v. Heller, 2020 SCC 16, Palmer v. The Queen, [1980] 1 S.C.R. 759, Costanza v. Desjardins Financial Security Life Assurance Company, 2023 ONCA 54

Marshallzehr Group Inc. v. La Pue International Inc., 2025 ONCA 124

Keywords: Contracts, Real Property, Mortgages, Debtor-Creditor, Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Leave to Appeal, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 193(a), 193(c), 193(e), 243(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101, Marchant Realty Partners Inc. v. 2407553 Ontario Inc., 2021 ONCA 375, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282

2730453 Ontario Inc. v. 2380673 Ontario Inc, 2025 ONCA 112

Keywords: Contracts, Oral Agreements, Real Property, Agreements of Purchase and Sale of Land, Enforceability, Part Performance, Detrimental Reliance, Irremediable Performance, Statute of Frauds, R.S.O. 1990, c. S.19, s. 4, Erie Sand and Gravel Limited v. Tri-B Acres Inc., 2009 ONCA 709, Hill v. Nova Scotia (Attorney General), [1997] 1 S.C.R. 69, Steadman v. Steadman, [1976] A.C. 536, Bhasin v. Hrynew, 2014 SCC 71, Stack v. Zizman (2007), 60 R.P.R. (4th) 42 (Ont. S.C.)

MJL Enterprises Inc. v. SAL Marketing Inc., 2025 ONCA 120

Keywords: Contracts, Interpretation, Intellectual Property, Copyright, Confidentiality, Civil Procedure, Evidence, Admissibility, Hearsay, Expert Opinion Evidence, Cambie Surgeries Corp. v. British Columbia (Attorney General), 2018 BCSC 514, Cambie Surgeries Corporation v. British Columbia (Attorney General), 2022 BCCA 245, R. v. Evans, [1993] 3 S.C.R. 653, R. v. Strand Electric Ltd., [1969] 1 O.R. 190 (C.A.), R. v. White, 2011 SCC 13, R. v. Reimer, 2024 ONCA 519, R. v. Iyeke, 2016 ONCA 349, R. v. Taweel, 2015 NSCA 107, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23

Anthony v. Binscarth Holdings GP Inc., 2025 ONCA 130

Keywords: Business Associations, Limited Partnerships, Contracts, Limited Partnership Agreements, Trusts, Limited Partnerships Act, R.S.O. 1990, c. L.16, s. 11(1), Accumulations Act, R.S.O. 1990, c. A.5, s. 1(1), Canadian Home Publishers (General Partner of) v. Colville-Reeves Estate, 2019 ONCA 314

Short Civil Decisions

Spasiw v. Quality Green Inc, 2025 ONCA 106

Keywords: Contracts, Arbitration Clauses, Torts, Fraudulent Misrepresentation, Restitution, Unjust Enrichment, Remedies, Oppression, Disgorgement, Rescission, Canadian Charter of Rights and Freedoms, Arbitration Act, 1991, S.O. 1991, c. 17 ss. 7(1) and 7(6), Telus Communications Inc. v. Wellman 2019 SCC 19

Adler v. Woitowich, 2025 ONCA 108

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Summary Judgment, Evidence, Expert Opinion Evidence, The Rosseau Group Inc. v. 2528061 Ontario Inc., 2023 ONCA 814

Rebello v. Ontario, 2025 ONCA 127

Keywords: Civil Procedure, Vexatious Litigation, Abuse of Process, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), Rules of Civil Procedure, r. 2.1.02, Gallos v. Toronto (City), 2014 ONCA 818, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, leave to appeal refused, [2015] S.C.C.A. No. 488, Talwar v. Grand River Hospital, 2025 ONCA 35, Mukwa v. Farm Credit of Canada, 2022 ONCA 320, Rebello v. Ontario (Transportation), 2024 ONCA 842, Yaiguaje v. Chevron Corp., 2017 ONCA 827

Kubiniec v. Dy, 2025 ONCA 113

Keywords: Real Property, Adverse Possession, Prescriptive Easements, Torts, Trespass, Barbour v. Bailey, 2016 ONCA 98, Temma Realty Co. Ltd. v. Ress Enterprises Ltd. et al. (1968), [1968] 2 O.R. 293 (Ont. C.A.), English v. Perras, 2018 ONCA 649, Mason v. Morrow (1998), 114 O.A.C. 194 (Ont. C.A.), Fletcher v. Storoschuk (1981), 35 O.R. (2d) 722 (C.A.), Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563 (C.A.), leave to appeal refused, [1984] S.C.C.A. No. 232

Street Godz Inc. v. 2556593 Ontario Inc., 2025 ONCA 138

Keywords: Contracts, Real Property, Commercial Leases, Civil Procedure, Evidence, Admissibility, Hearsay, Probative Value vs Prejudicial Effect, Relevance

Stadnyk v. Thunder Bay (City), 2025 ONCA 137

Keywords: Torts, Misfeasance in Public Office, Nuisance, Negligence, Civil Procedure, Class Proceedings, Pleadings, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1), Municipal Act, 2001, S.O. 2001, c. 24, s. 449, R. v. Wookey, 2016 ONCA 611, Ruth Sullivan, Sullivan on the Construction of Statutes, 6^th ed. (Markham, Ont.: LexisNexis Canada 2014)

Furney v. Downie, 2025 ONCA 132

Keywords: Torts, Fraud, Abuse of Process

Canada Mining Exchange Company Limited v. Zhaojin Mining Industry Co. Ltd., 2025 ONCA 136

Keywords: Contracts, Confidentiality Clauses, Civil Procedure, Summary Judgment

Buehlmann-Miyake v. Buhlmann, 2025 ONCA 131

Keywords: Family Law, Civil Procedure, Appeals, Jurisdiction, Appeal Management Orders, Panel Review, Vexatious Litigation, Courts of Justice Act, ss. 7(5), 125(2), Rules of Civil Procedure, rr. 2.1, 61.09(4), Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario , ss. 8.2, 8.4, 11.1(3), Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, leave to appeal refused, [2015] S.C.C.A. No. 488, Kokic v. Johnson, 2025 ONCA 4

CIVIL DECISIONS

Coscarella Dentistry Professional Corporation v. Harvey, 2025 ONCA 118

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

Counsel:

J. T. Curry, A. Goudge and H. Chaiet, for the appellants

J. Martin and H. Dhaliwal, for the respondents

facts:

A dentist, Dr. F operated two dental Clinics and for many years another dentist, Dr. C, worked as an independent contractor with Dr. F pursuant to an oral agreement. In 2018, Dr. F’s son, Dr. G, purchased the Clinics by buying shares of Coscarella Dentistry Professional Corporation, which acquired ownership of the Clinics. Dr. C decided to move his dental practice to a location across the street from one of the Clinics, and also accessed and took photos of electronic files for patients that he had treated in previous years and sent them letters announcing that he was moving his practice. The Appellants, Dr. F, Dr. G and Coscarella Dentistry Professional Corporation brought an action against the Respondents, Dr. C and Clifford Harvey Dentistry Professional Corporation alleging conversion and improper solicitation of the patients of the Clinics, the appropriation of confidential information, and breach of fiduciary duty relating to Dr. C’s misuse of confidential information. The trial judge dismissed the action.

issues:

Did the trial judge mischaracterize the central issue by determining liability based solely on the fact that there are no propriety rights in patients and that Dr. C was entitled to contact his patients and advise them of his new location?
Did the trial judge fail to give reasons for her finding that the information accessed was not confidential?
Did the trial judge err by failing to give more complete reasons for rejecting the fiduciary breach claim?
Did the trial judge err by failing to address the contractual good faith obligation?
Did the trial judge err by failing to recognize that Dr. C was entitled to notify his patients of his new location, but was not entitled to solicit them?
Did the trial judge err by admitting into evidence a Royal College of Dental Surgeons of Ontario (“RCDSO”) panel decision of January 18, 2022?

holding:

Appeal dismissed.

reasoning:

The Court found that the trial judge’s decision did not turn solely, or even mainly, on the fact that there are no propriety rights in patients and that Dr. C was entitled to contact his patients and advise them of his new location. The trial judge determined the nature of the relationship and found that, pursuant to the agreement, Dr. C contracted with Dr. F to perform dental services in exchange for payment, and that they carried on independent dental practices. Furthermore, the trial judge found that this arrangement did not result in any confidentiality attaching to patient records that Dr. C was professionally required to create and keep.

2. No.

The Court found that the trial judge fully explained that the treating dental professional has the professional, legal and ethical responsibility to maintain a complete record of each patient’s dental care. The trial judge found that Dr. C accessed the records to obtain patient contact information to fulfill his professional obligations. The Court held that the trial judge did not need to say anything further to explain her finding that Dr. C did not breach confidences by accessing this information.

3. No.

The Court saw no reversible error in the trial judge’s reasons. The trial judge’s finding that the information was not confidential ended the claim of breach of fiduciary duty.

4. No.

The Court noted that the function of the doctrine of good faith is to ensure that the parties to a contract perform their contractual duties honestly and reasonably and not capriciously or arbitrarily. The Court held that once the trial judge decided that there were no contractual duties on Dr. C relating to accessing patient information or soliciting his patients, the issue of good faith became immaterial.

5. No.

The Court rejected the submission that the trial judge erred by failing to recognize that Dr. C was entitled to notify his patients of his new location but was not entitled to solicit them. The Court noted that “that is not the law.” The Court did not accept the Appellants’ proposition that it is wrongful and actionable for a dentist to solicit their own patients. The Court reiterated that there is no prohibition on soliciting one’s own patients.

6. No.

The RCDSO panel decision was jointly admitted by the parties and the Court stated that the Appellants could not now build a ground of appeal out of what “clearly was a tactical decision on their part” to put this document before the trial judge. The Court also found that doing so had caused no discernable prejudice. Furthermore, the Court found that the trial judge drew nothing from the contents of the report.

Peedham v. 1000516033 Ontario Ltd., 2025 ONCA 109

[Rouleau, Roberts and Favreau JJ.A.]

Counsel:

S. Chhina, for the appellant

A. Aragao, for the respondents

facts:

This appeal arose from an order granting the respondents the rights to exercise an option to purchase a commercial unit under terms set out in a lease agreement and to continue occupying the unit until the purchase was completed.

The appellant, 1000516033 Ontario Ltd. (“100”) was the owner of a commercial property used as a Hindu Temple. The Canada Sri Sabari Peedam Hindu temple (the “Temple”) operates out of two adjacent commercial condominium units. The Temple has occupied the first unit, Unit #10, since 2010. Once worshippers grew, the Temple began renting the adjoining Unit #9 (the “unit”) and completed renovations including taking down the separating wall. Thois dispute revolves around Unit #9. The respondents had no formal lease agreement with the then owner, though they discussed the respondents eventually buying the unit.

Around January 2016, Unit #9 was subject to power of sale proceedings and the mortgagee in possession asked the respondents to enter into a formal lease agreement. On February 14, 2017, the mortgagee and the respondents entered into a written lease for a period of six months and included an option to purchase the unit for $350,000 at any time during the tenancy and any extension of the lease. In October 2018, the charge under power of sale was assigned to 11037315 Canada Inc. (“110”), which then became the mortgagee in possession of the unit. On June 27, 2023, 110 transferred its interest in the unit to the appellant, 100, by power of sale without notice to the respondents. Starting in mid-July 2023, the appellant took steps to terminate the tenancy. In response, the respondents brought an urgent motion to stay the eviction. On October 30, 2023, in an endorsement, Trimble J. directed, among other things, that the eviction was stayed, and that the Temple was to deliver an offer to purchase the unit by November 29, 2023. On November 28, 2023, the respondents sought to exercise their option under the lease and served an offer to purchase for $350,000 on the appellant, which offer was not accepted. The respondents’ motion then proceeded before Kumaranayake J. who, on December 8, 2023, granted a consent order which provided that the lease would be terminated on February 15, 2024, but that the Temple could remain in the unit until that date. The order also included a term permitting the respondents to make an offer to purchase the property at fair market value. Instead of an offer to purchase the unit at fair market value, the respondents brought a motion for an order allowing them to exercise the option to purchase for $350,000 contained in the lease. The motion judge granted the motion and made an order for specific performance, directing the appellant to sell the property to the respondents for a purchase price of $350,000.

issues:

Did the motion judge err in:

failing to find that the option to purchase for $350,000 was superseded by the consent order permitting the respondents to make an offer to purchase Unit #9 at fair market value?
finding that the option to purchase was valid and enforceable against the appellant given that the option to purchase was not registered on title, and that there was otherwise no evidence that the appellant was aware of the option to purchase when it bought Unit #9?

holding:

Appeal allowed.

reasoning:

The Court held that the appellant’s argument that the term in Justice Kumaranayake’s consent order that the respondents “shall be entitled to make an additional offer to purchase at fair market value, to be determined by a professional appraisal” reflected an agreement that the option to purchase in the lease was superseded was without merit for two reasons. Firstly, the Court found that this was a new argument not made before the motion judge. The Court reiterated that, as a general rule, an appellate court will not entertain entirely new arguments on appeal. Secondly, the Court noted that even if this argument had been property made before it, the appellant’s interpretation of the consent order was not supported by the language of the order. The Court held that in the absence of any clear language stating that this provision was meant to supersede the option to purchase in the lease and without any further evidence regarding the surrounding circumstances under which this provision was negotiated, there was no basis for finding that this provision was meant to supersede the option to purchase for $350,000 in the lease.

2. Yes.

The Court found that the motion judge erred in failing to consider whether the respondents were entitled to exercise the option to purchase given that the appellant was a subsequent purchaser and the option to purchase was not registered on title. The Court outlined that the fundamental question in this case was whether the option to purchase should be enforced against a subsequent purchaser of the property.

The appellant submitted that it would be inequitable to require it to sell Unit #9 to the respondents for $350,000 since it purchased the unit for $750,000 and that the motion judge erred in finding that the option to purchase could be enforced against it, given that the option to purchase was not registered on title. The Court noted that it appeared that this argument was not explicitly raised before the motion judge. However, it was evident that the parties had competing property interests in a property that the appellant had acquired through power of sale proceedings, and it was therefore necessary to ascertain, based on the applicable statutory provisions in the Land Titles Act and the Mortgages Act, R.S.O. 1990, c. M.40, and the common law, which of the parties’ interest in the land took precedence.

The Court outlined the legal principles that apply to the enforceability of an option to purchase against a subsequent purchaser and identified two issues relevant to the case. Firstly, the Court noted that absent fraud, subsequent purchasers for value take land free and clear of unregistered claims that they did not know about. Secondly, assuming the doctrine of actual notice continues to apply following the 2006 amendments to the Land Titles Act, actual notice of an unregistered option to purchase could make a subsequent purchaser’s registered interest bound by that option to purchase. The Court held that the motion judge erroneously treated the appellant as though it was in the same position as the party who negotiated the option to purchase with the respondents. The Court found that the motion judge gave no consideration to the appellant’s position or to the statutory protections that presumptively apply to subsequent purchasers for value under the Land Titles Act and the Mortgages Act. Importantly, the Court stated that a court order entitling the respondents to exercise their option to purchase Unit #9 could only be effective if the appellant did not benefit from the statutory protections guaranteeing security of title and as a prerequisite to granting such an order. Thus, it was necessary for the motion judge to determine whether the appellant’s title was guaranteed under the Land Titles Act. The Court found that the motion judge did not make the legal determinations and findings required to resolve these issues. Further, the Court held that there was no evidence in the record of what the appellant did or did not know about the option (or the lease) and that absent evidence of these key issues, it was not possible for the Court to decide the matter. The Court therefore set aside the motion judge’s order and remitted the matter back for a trial of the issue of whether the appellant was a bona fide purchaser for value without notice that the unit was subject to a lease that included an option to purchase the property for $350,000, and, if so, whether the appellant was entitled to the protection of s. 78(4) of the Land Titles Act or other provisions of that Act or the Mortgages Act, such that the respondents would be precluded from exercising their option to purchase the property.

Chong v. Chong, 2025 ONCA 126

[Pepall, Paciocco and Sossin JJ.A.]

Counsel:

D. A. Brooker and D. Krysik, for the appellant

S. Pulver and B. Needham, for the respondents

facts:

The appellant appealed from the motion judge’s decision to enforce a settlement agreement he entered into with the respondents, his nephews.

issues:

Did the motion judge err in enforcing the settlement agreement?

holding:

Appeal dismissed.

reasoning:

No. The Court held that the fresh evidence regarding the appellant’s former counsel was not properly before the Court because even if a motion for leave to admit fresh evidence had been brought, the Court was not persuaded that it would have affected the result: Palmer v. The Queen; Costanza v. Desjardins Financial Security Life Assurance Company. Moreover, the new evidence primarily addressed disciplinary proceedings in an unrelated matter involving the appellant’s former counsel that post-dated the order in issue on this appeal.

The Court rejected the appellant’s argument relating to unconscionability, finding that she identified the correct legal principles and justified her application of those principles by examining the whole of the evidence. Aside from the evidence of the appellant’s counsel, there was ample evidence to support the motion judge’s conclusion. Furthermore, the appellant was the trustee of the property for his two children, and he advised that he had authority to enter into the settlement agreement on their behalf. Neither child ever sought to be added as a party to set aside the settlement.

The Court also rejected the appellant’s other grounds of appeal relating to mutual mistake and misrepresentation as he failed to establish any errors in law or palpable and overriding errors that warranted appellate intervention.

Marshallzehr Group Inc. v. La Pue International Inc., 2025 ONCA 124

[MacPherson J.A. (Motions Judge)]

Counsel:

M. Spence and A. Ho, for the respondent/moving party (M55745)/responding party by way of cross-motion (M55769), KSV Restructuring Inc., in its capacity as receiver of La Pue International Inc.

M. Poliak, for the respondent/responding party (M55745)/responding party by way of cross-motion (M55769), Marshallzehr Group Inc.

H. F. Manis and D. Litsos, for the appellant/responding party (M55745)/moving party by way of cross-motion (M55769), La Pue International Inc.

M. Lightowler and O. Mckerlie, for 1000835091 Ontario Inc.

F. Souza, for Buttcon Limited and as agent for counsel for HC Matcon Inc.

J. Wadden, for A. D.

facts:

La Pue International (Debtor) was involved in a development project, however, due to financial difficulties, KSV Restructuring Inc. (Receiver) was appointed by the Ontario Superior Court under s. 243(1) of the Bankruptcy and Insolvency Act and s. 101 of the Courts of Justice Act to manage and sell the debtor’s assets, including the property. The Court granted KSV an Approval and Vesting Order (AVO), authorizing the sale of the property. The motion judge found that KSV had properly evaluated the available offers and exercised sound business judgment in selecting the best offer.

The Receiver moved for a declaration that the BIA governed any appeal from the AVO, that there was no automatic right of appeal and that leave to appeal under s. 193(e) was required, an order denying leave to appeal and an order sealing confidential appendices to its fifth report to the court. The Debtor brought a cross-motion on the same issues.

issues:

Does the Debtor have a right to appeal under:

s. 193(a) of the BIA;
s. 193(c) of the BIA; or
s. 193(e) of the BIA?

holding:

Receiver’s motion granted. Debtor’s cross-motion dismissed.

reasoning:

Under s. 193(a), an appeal is automatic if it involves future rights. Here, the Debtor’s legal rights already existed and were at issue in the bankruptcy proceedings, and as such, were not “future” rights. The Court also rejected the contention by the Debtor that the 359 pre-sale purchasers and $12M in secured claims created new future rights. Future rights must be rights that do not yet exist but will arise later—which was not the case here.

2. No.

Under s. 193(c), appeals are automatic if the order affects property worth over $10,000. The court found that the AVO was procedural in nature, which did not change the value of the Debtor’s property, and accordingly did not result in direct loss to creditors or lien claimants. Orders that are procedural, do not alter asset value or do not cause a loss do not qualify for s. 193(c) appeals.

3. No.

Under s. 193(e), leave is to be granted upon consideration of the following factors:

a. The appeal raises an issue of general importance in insolvency law.

b. The appeal is prima facie meritorious.

c. The appeal would not unduly hinder the insolvency process.

The court found that the Debtor failed to meet any of these three criteria. First, the appeal was specific to the case and not of general importance. Second, the motion judge’s decision was well-reasoned and correct. Third, the appeal would cause delays and disrupt the insolvency proceedings.

2730453 Ontario Inc. v. 2380673 Ontario Inc., 2025 ONCA 112

[Miller, Zarnett and Thorburn JJ.A.]

Counsel:

P. J. Pape and M. McGowan, for the appellant

M. Veneziano and J. D. Langley, for the respondent

facts:

The respondent sought to purchase a lot owned by the appellant in Milton, Ontario. Throughout 2018 and 2019, there were dealings about a purchase, including price, terms and a closing date, through real estate brokers acting with the authority of the parties. The trial judge found that in September 2019, the parties reached a binding oral agreement on all essential terms. No formal sale agreement was signed at the time because the appellant’s principal preferred to do so at the time of closing. After the oral agreement was made, lawyers became involved for both parties.

On December 5, 2019, the respondent’s lawyer wrote to the appellant’s lawyer requesting a draft transfer, statement of adjustments, surveys, plans and tax bills in the appellant’s possession. The respondent’s lawyer also requested a draft agreement of purchase and sale. On December 8, 2019, the appellant’s lawyer responded with a letter which referenced the sale, confirmed that he was entitled to act for the vendor in the transaction and stated that he enclosed draft documents. On December 23, 2019, the appellant’s lawyer indicated that the draft documents had been executed by the appellant and would be delivered on closing.

On January 3, 2020, the respondent’s lawyer sent the appellant’s lawyer the sale agreement signed by the respondent. Through its broker, the appellant sent a revised version of Schedule A to the written sale agreement that provided the respondent would accept title subject to any registered easement. The revision was accepted by the respondent’s lawyer on the same day. On January 7, 2020, the respondent’s lawyer sent the appellant’s lawyer a revised version of the written sale agreement signed by the respondent that included the Schedule A revisions. On January 8, 2020, the respondent’s lawyer sent the closing documents to the appellant’s lawyer. The appellant’s lawyer never responded to the January 2020 correspondence.

The appellant refused to close.

Having found that there was a binding oral sale agreement reached in September 2019, the trial judge found that there was part performance and detrimental reliance sufficient to make it inequitable for the appellant to rely on s. 4 of the Statute of Frauds. On appeal, the appellant argued that the detrimental reliance aspect of the doctrine of part performance was not met.

issues:

Did the trial judge err in concluding that the detrimental reliance aspect of the doctrine of part performance was met?

a. Did the trial judge err in what he considered to be acts of part performance by the respondent?

b. Did the trial judge err in failing to consider whether the detriment was irremediable?

c. Did the trial judge err in failing to find that the detriment was de minimis or nominal?

holding:

Appeal dismissed.

reasoning:

The Court found that the trial judge did not err in concluding that the detrimental reliance aspect of the doctrine of part performance was met. The appellant did not argue that the trial judge’s reasons were insufficient. Rather, the appellant argued that the trial judge’s conclusion was a product of legal error. Accordingly, the Court reviewed and rejected each prong of the appellant’s argument to demonstrate that the trial judge’s decision was void of reversible error and thereby subject to deference.

1a. No.

The Court found that the trial judge did not err in what he considered to be acts of part performance by the respondent. The Court rejected the appellant’s argument that the trial judge ought to have confined his analysis to the obligation to pay the purchase price and any detriment resulting from the tendered but refused payment. Instead, the Court found that the trial judge was entitled to consider steps taken in the closing process as acts of part performance. Some of these efforts identified by the trial judge as acts of part performance included the steps the respondent took in obtaining a survey and title searches; retaining legal counsel to close the agreement; directing counsel to draft, revise, and negotiate the written agreement of sale for the property and the closing documents; delivering the required documents on closing; and tendering the certified cheque for the full amount of the purchase price.

1b. No.

The Court found that the trial judge did not err in failing to consider whether detriment was irremediable. Contrary to the appellant’s submissions, the Court found that the precise language in the caselaw was not “irremediable detriment.” Instead, the test involved “irremediably carrying out” contractual obligations. The Court stated that irremediable performance refers to performance that has been rendered solely in the expectation that the other party will fulfill its end of the oral agreement, thus making the detriment of performance worthwhile. Further, it is that type of performance, rendered when the other party has stood by and allowed the detriment associated with it to be incurred, that raises the equity against the other party. The Court asserted that once there has been irremediable performance, there was no additional requirement that the detriment be irremediable.

Ultimately, the Court found that although tendering funds that are not accepted may not be irremediable performance, the respondent’s performance was not limited to that. Taking into account all of the acts of part performance, the Court affirmed that the respondent’s performance constituted irremediable performance.

1c. No.

The Court found that the trial judge was not required to find the detriment was de minimis or nominal. The Statute of Frauds requires detriment to be more than de minimis or nominal. The Court rejected the appellant’s submission that the non-accepted tender of closing funds could not possibly rise to the level required. The Court found that the expense and effort incurred by the respondent up until the refused closing constituted real detriment.

MJL Enterprises Inc. v. SAL Marketing Inc., 2025 ONCA 120

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

Counsel:

J. G. Hodder, Y. Wang, J. Wang and L. Liu, for the appellant

C. Stanek, V. Pelchat and M. Crandall, for the respondent

facts:

MJL Enterprises Inc., developed iSTAR, a software platform. MJL entered into a distribution agreement with SAL Marketing Inc. (“SMI”), granting SMI exclusive distribution rights. The business relationship deteriorated, leading to the termination of the agreement and subsequent litigation. The key issue was whether SMI had breached article 4.6 of the agreement, which prohibited modifying or adapting the software to create derivative works. MJL alleged that SMI copied iSTAR’s features and functionalities into two other software products.

The trial judge dismissed MJL’s claims, finding that MJL had failed to establish that SMI copied any part of iSTAR’s software, features, or functionalities. The court also ruled that features and functionalities, as general concepts, are not protected under copyright law, nor were they confidential. MJL’s evidence of copying was insufficient, and the trial judge excluded certain documents and an expert report that MJL intended to rely on.

issues:

Did the trial judge err in interpreting article 4.6 of the agreement?
Did the trial judge err in finding that SMI did not copy iSTAR’s features and functionalities?
Did the trial judge err in excluding certain evidence, including an expert report and documentary evidence MJL sought to admit?

holding:

Appeal dismissed.

reasoning:

The Court rejected the argument by the appellant that the trial judge misinterpreted article 4.6 of the agreement. The Court stated that they did not need to consider whether the trial judge committed errors of interpretation relating to the agreement. Even if the agreement prohibited the copying of the software’s non-copyrighted features and functionalities, MJL’s appeal failed because of the finding that no such copying occurred. Since this finding was supported by the evidence, any potential error in contract interpretation was irrelevant to the outcome.

2. No.

The appellants contended that the trial judge’s narrow reading of article 4.6 caused her to focus only on whether the copyrighted source code was copied, rather than considering the alleged copying of features and functionalities. MJL also argued that SMI’s software products, SimpliFI and UniFI 2.0, incorporated elements taken from iSTAR.

The Court rejected this argument, finding that the trial judge had fully considered MJL’s allegations. The trial judge correctly found that first, features and functionalities were not protected by copyright law; second, the features at issue were common across multiple platforms and not unique to iSTAR; third, some of the features MJL claimed were copied had originally been suggested by SMI itself; and fourth, MJL failed to provide concrete evidence, such as software comparisons, to establish that copying had occurred. Since MJL did not produce concrete evidence of copying, such as software comparisons, and relied only on circumstantial evidence, the Court found no basis to overturn the trial judge’s findings.

3. No.

The Court rejected the appellants’ argument that the trial judge incorrectly excluded certain evidence, including an expert report and documentary evidence it sought to admit under the party admissions exception to the hearsay rule, and upheld the evidentiary rulings.

First, the Court found the trial judge correctly excluded the expert report as it was not based on a technical analysis of the software but rather on non-technical sources, such as emails and presentations. The court found that an expert’s role was to provide technical insight beyond the court’s expertise, not to analyze documentary evidence in a way that the judge could do independently.

Second, the Court found the trial judge did not err in excluding the hearsay documents because the appellants failed to establish that the documents met the necessary criteria, particularly that the statements were made by an authorized representative of SMI.

Third, the Court noted that the trial judge incorrectly allowed the excluded documents to be marked as exhibits for “narrative” purposes. While this had no impact on the case outcome, the Court clarified that the doctrine of “narrative” should not be used as a workaround for admitting inadmissible evidence.

Anthony v. Binscarth Holdings GP Inc., 2025 ONCA 130

[Nordheimer, Madsen and Pomerance JJ.A.]

Counsel:

M. Wainberg, for the appellants

R. Brousseau, G. Vance and D. Postel, for the respondents

facts:

The appellants were limited partners of the Binscarth Holdings L.P. (the “Partnership”). The general partner of the Partnership was Binscarth Holdings GP Inc. (“Binscarth Inc.”). All of the shares of Binscarth Inc. are owned by the Anthony Control Trust (the “Trust”). The sole remaining trustee of the trust was G.A., who was a brother to the appellants. The appellants were beneficiaries of the trust. Since the inception of the Partnership, all of the net income, as defined in the Limited Partnership Agreement (“LPA”), of the Partnership had been credited annually to the capital accounts of the limited partners.

Clause 8.1(a) of the LPA states “The General Partner may cause the Partnership to make distributions of cash, assets and securities to the Limited Partners on an annual basis at any time and from time to time in the General Partner’s sole discretion.”

The appellants commenced an application where they sought a declaration to receive from the Partnership the payment of 100% of the appellants’ proportionate share of the net income of the Partnership on an annual basis by way of a cash distribution, retroactive to January 1, 2016. The application judge dismissed the application.

The appellants’ principal argument put before the application judge and renewed before the Court on appeal was that Binscarth Inc., as the general partner of the Partnership, was required to distribute all of the net income of the Partnership to the limited partners on an annual basis, relying on s. 11(1) of the Limited Partnerships Act (the “Act“) and s. 1(1) of the Accumulations Act.

issues:

Did the application judge err in dismissing the application?

holding:

Appeal dismissed.

reasoning:

No.

The appellants argued that s. 11(1) of the Act mandated the distribution of all profits of the Partnership on an annual basis. The Court found that there was nothing in the plain wording of s. 11(1) of the Act that supported the appellants’ proposition, nor did the appellants point to any authority in support of their interpretation. The Court further explained that saying that a limited partner is entitled to a “share” of the profits is not the same thing as saying that a limited partner is entitled to payment of that share. Furthermore, the Court stated that there was nothing in s. 11(1) of the Act that would require the mandated distribution to occur on an annual basis as opposed to any other time period. Additionally, the Court found that the interpretation put forward by the appellants contradicted other provisions in the LPA of the Partnership.

Pertaining to the appellants’ argument regarding s. 1(1) of the Accumulations Act, the Court affirmed that the statute was directed to testamentary dispositions or the settling of trusts, not commercial endeavours as was the case here.

SHORT CIVIL DECISIONS

Spasiw v. Quality Green Inc., 2025 ONCA 106

[Pepall, Paciocco and Sossin JJ.A.]

Counsel:

A. S., acting in person and on behalf of the appellant Astute Ventures Ltd. with leave

R. Rothstein and A. Labib, for the respondents Quintet Ventures Inc., An. R., Ad. R., 1160094 B.C. LTD., and 1161845 B.C. LTD

Adler v. Woitowich, 2025 ONCA 108

[Hourigan, Wilson and Madsen JJ.A.]

Counsel:

A. Slodovnick, for the appellants

M. U. Peters and M. Van Kessel, for the respondents

Rebello v. Ontario, 2025 ONCA 127

[Pepall, Paciocco and Sossin JJ.A.]

Counsel:

T. R., acting in person

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

Kubiniec v. Dy, 2025 ONCA 113

[Hourigan, Wilson and Madsen JJ.A.]

Counsel:

D. Sinko, for the appellant

M. W. Carlson, for the respondents.

Street Godz Inc. v. 2556593 Ontario Inc., 2025 ONCA 138

[MacPherson, Huscroft and Coroza JJ.A.]

Counsel:

D. Marcovitch, for the appellant

O. Hoque, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Civil Procedure, Evidence, Admissibility, Hearsay, Probative Value vs Prejudicial Effect, Relevance

Stadnyk v. Thunder Bay (City), 2025 ONCA 137

[Nordheimer, Madsen and Pomerance JJ.A.]

Counsel:

D. F. O’Connor, J. A. Dewar and E. S. Knutsen, for the appellant

L. G. Theall and J. A. Brown, for the respondent

Furney v. Downie, 2025 ONCA 132

[MacPherson, Huscroft and Coroza JJ.A.]

Counsel:

M. F. and A. F., acting in person and for the Estate of M. A.

S. Kesar, for the respondent/responding party Dominion Lending Centres Inc.

E. B., acting in person and for the respondent/responding party Bisceglia and Associates

E. Bisceglia and D. Campoli, for the respondents/responding parties A. D. and 2137073 Ontario Inc.

R. J. Atkinson, for the respondents/responding parties A. L., L. B., S. G. and E. K.

J. D. Sobel, for the respondent/responding party 2380376 Ontario Limited

B. Martin, for the respondents/responding parties R. Atkinson, Atkinson Law, A. F., J. S., Maniaci Sobel Associates, S. C., and R. K. W.

I. M., acting in person

M. B., acting in person

M. P., acting in person

S. H., acting in person

Keywords: Torts, Fraud, Abuse of Process

Canada Mining Exchange Company Limited v. Zhaojin Mining Industry Co. Ltd., 2025 ONCA 136

[MacPherson, Huscroft and Coroza JJ.A.]

Counsel:

D. K., acting in person for the appellant

J. Holloway, for the respondents Zhaojin Mining Industry Co. Ltd., Zhaojin International Mining Co. Ltd.

A. Labib, for the respondent Zhaojin Principle Mining Investment Inc.

Keywords: Contracts, Confidentiality Clauses, Civil Procedure, Summary Judgment

Buehlmann-Miyake v. Buhlmann, 2025 ONCA 131

[Pepall, Paciocco and Sossin JJ.A.]

Counsel:

G. B-M., acting in person

B. Ludmer, for the responding party

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.

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John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email