COURT OF APPEAL SUMMARIES (MARCH 10-14)

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of March 10, 2025.

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In Adelaide Metcalfe (Township) v. Strathroy-Caradoc (Municipality), the Court affirmed that absent clear language indicating a right of appeal from an interlocutory decision, legislation conferring a right of appeal from a decision of an administrative tribunal requires that the decision be final.

In Wyatt v. Mirabelli, the Court allowed the appeal from an order dismissing the appellant’s claim as statute-barred under the Limitations Act, 2002. The Court found that the motion judge erred in striking the claim under r. 21.01(1)(a) (determination of a question of law) before pleadings had closed, and in failing to consider that the appellant’s allegations of multiple instances of water infiltration should be read generously and may not have constituted a single, time-barred event.

In Knisley v Canada (Attorney General), the Court allowed the appeal of Canada, setting aside the certification order granted by the motion judge and remitting the matter for reconsideration and determination of whether the requirements of s. 5(1)(b) of the Class Proceedings Act, 1992 were met.

In Ontario Place Protectors v. Ontario, the Court dismissed the appeal and upheld the constitutionality of the Rebuilding Ontario Place Act, 2023 (ROPA), which exempted Ontario Place from environmental and heritage laws, limited municipal regulation, and granted the Crown immunity from liability related to the redevelopment of the land. While the Court disagreed with the application judge and found that the Ontario Place Protectors had public interest standing, it agreed with the application judge that ROPA did not violate section 96 of the Constitution Act, 1867, as judicial review remained intact and no public trust doctrine existed under Canadian law to support the appellant’s claims.

In Rosemont Management Inc. v. Cityzien Properties Limited, the Court dismissed the appeal from an order staying the appellant’s application as an abuse of process due to its failure to immediately disclose a settlement agreement that fundamentally changed the litigation landscape. The Court rejected arguments that the disclosure delay was minimal or excusable, emphasizing the strict requirement for immediate disclosure and affirming that a stay is the automatic remedy for breach of this rule.

In Ly Innovative Group v Facilitate Settlement Corp., the Court dismissed the appeal from the motion judge’s decision to terminate a residential tenancy and award the respondent landlords rental arears and punitive damages. The fact that a settlement agreement between the parties was disclosed to the motion judge did not disqualify him from hearing the motion or create a reasonable apprehension of bias. Rule 50.10, which prohibits a pretrial judge from also being the trial judge did not apply in this case, as the motion judge had not presided over a pretrial or any settlement discussions.

In Apotex Inc. v. Eli Lilly and Company, the Court affirmed that Apotex was not entitled to damages for delay which could have flown from s. 8 of the Patented Medicines (Notice of Compliance) Regulations under the Patent Act. The Court found that the trial judge correctly assessed the hypothetical reality and liabilities associated with bringing the generic drug in question to market before the patent had been declared invalid.

In Bogue v. Miracle, the Court upheld a summary judgment requiring the appellant to pay his former lawyer $2,858,500 under a contingency fee agreement. The Court found that gaining control of a profitable on-reserve business through arbitration constituted a sufficient benefit to trigger the fee obligation, even though no monetary award was recovered. It also upheld the solicitor’s lien over the appellant’s assets, finding no error in the motion judge’s decision.

In Alleghe Mortgage Fund Ltd. v. Winona Park Towns Ltd., the Court dismissed the appeal finding that the respondents did not breach their duty of good faith in the enforcement of a loan agreement and mortgage.

In Rebello v. Ontario (Attorney General), the Court upheld the motion judge’s decision to dismiss the appellant’s claims against the Crown and various government officials, agreeing that the claims failed to disclose a reasonable cause of action and were an abuse of process.

In Kohli v. Thom, the Court allowed the appeal in part, finding that the trial judge erred in imputing income to the appellant without considering the impact of family violence on her ability to work. While the Court upheld the decision denying the appellant’s request to relocate with the child to New Brunswick, it found that the imputation of income was unjustified and recalculated the spousal and child support obligations accordingly.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Adelaide Metcalfe (Township) v. Strathroy-Caradoc (Municipality), 2025 ONCA 180

Keywords: Administrative Law, Municipal Law, Civil Procedure, Appeals, Interlocutory Orders, Municipal Act, 2001, S.O. 2001, c. 25, ss. 20(1), 86, 474.10.3(1)(j) and 474.10.16(1)(a), Ontario Land Tribunal Act, 2021, S.O., 2021, c. 4, Sched. 6, s 24(1), Johnson v. Ontario, 2021 ONCA 650, J.N. v. Durham Regional Police Service, 2012 ONCA 428, George v. Anishinabek Police Service, 2014 ONCA 581, Penney v. The Cooperators General Insurance Company, 2022 ONSC 3874, Roosma v. Ford Motor Co. of Canada Ltd. (1988), 66 O.R. (2d) 18 (Div. Ct.), Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 54, Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, Eastpine Kennedy-Steeles Ltd. v. Markham (Town) (2000), 131 O.A.C. 147, The Estate of Nikolaus R. Holz v. Ministry of Transportation, 2024 ONSC 2176, Geneen v. Toronto (City) (1998), 107 O.A.C. 308 (Div. Ct.), Maplehurst Bakeries Inc. v. Brampton (City) (1999), 44 O.R. (3d) 667 (Div. Ct.), Skunk v. Ketash, 2016 ONCA 841, Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Heegsma v. Hamilton (City), 2024 ONCA 865

Wyatt v. Mirabelli, 2025 ONCA 178

Keywords: Civil Procedure, Striking Pleadings, Determination of Question of Law, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., Rules of Civil Procedure r. 21.01(1)(a), Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, Kaynes v. BP p.l.c., 2021 ONCA 36, Knight v. Imperial Tobacco Canada Ltd., 2011 SCC42, Salewski v. Lalonde, 2017 ONCA 515, Clark v. Ontario (Attorney General), 2019 ONCA 311, Toussaint v. Canada (Attorney General), 2023 ONCA 117, Baradaran v. Alexanian, 2016 ONCA 533, Crombie Property Holdings Limited v. McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16

Ontario Place Protectors v. Ontario, 2025 ONCA 183

Keywords: Administrative Law, Judicial Review, Municipal Law, Land Use Planning, Constitutional Law, Separation of Powers, Appointment of Judges, Breach of Public Trust, Civil Procedure, Public Interest Standing, Constitution Act, 1867, 30 & 31 Vict, c 3, s. 96, Rebuilding Ontario Place Act, 2023, S.O. 2023, c. 25, Sched. 2, s. 17, Environmental Assessment Act, R.S.O. 1990, c. E.18, Ontario Heritage Act, R.S.O. 1990, c. O.18, Judicial Review Procedure Act, R.S.O. 1990, c. J.1, Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172, Ontario Place Protectors v. His Majesty the King, 2024 ONSC 1826, Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General), 2012 SCC 45, Canada (Attorney General) v. Power, 2024 SCC 26, Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186, Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, Crevier v. A.G. (Québec) et al., [1981] 2 S.C.R. 220, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Just v. British Columbia, [1989] 2 S.C.R. 1228, Nelson (City) v. Marchi, 2021 SCC 41, British Columbia v. Canada Forest Products Ltd., 2004 SCC 38, Burns Bog Conservation Society v. Canada, 2014 FCA 170, La Rose v. Canada, 2023 FCA 241, Yaiguaje v. Chevron Corporation, 2018 ONCA 472

Rosemont Management Inc. v. Cityzien Properties Limited, 2025 ONCA 198

Keywords: Civil Procedure, Settlements, Disclosure, Striking Pleadings, Skymark Finance Corporation v. Ontario, 2023 ONCA 234, Aecon Buildings v. Stephenson Engineering Ltd., 2011 SCC 33, HU de Québec-Université Laval v. Tree of Knowledge International Corp., 2022 ONCA 467, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Poirier v. Logan, 2022 ONCA 350, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898

Knisley v Canada (Attorney General), 2025 ONCA 185

Keywords: Torts, Negligence, Novel Duty of Care, Anns/Cooper Test, Civil Procedure, Class Proceedings, Certification, Definition of Class, Canadian Charter of Rights and Freedoms, Veterans Well-being Act, S.C. 2005, c. 21, s. 2.1, Pension Act, R.S.C., 1985, c. P-6, Class Proceedings Act, ss. 5(1), 8, 30, Courts of Justice Act, s. 19(1)(b), Hollick v. Toronto (City), 2001 SCC 68, Hoy v. Expedia Group Inc., 2022 ONSC 6650, Webb v. K-Mart Canada Ltd. (1999), 45 O.R. (3d) 389 (S.C.), Mouhteros v. DeVry Canada Inc. (1998), 41 O.R. (3d) 63 (S.C.), Brown v. Canada (Attorney General) 2013 ONCA 18, Griffin v. Dell Canada Inc. (2009), 72 C.P.C. (6th) 158 (Ont. S.C.), Lockhart v. Canada (Attorney General), 2024 ONSC 6573, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42

Ly Innovative Group Inc. v Facilitate Settlement Corporation, 2025 ONCA 194

Keywords: Real Property, Residential Tenancies, Civil Procedure, Settlements, Adjournments, Reasonable Apprehension of Bias, Rules of Civil Procedure, rr. 49.06, 49.09, 50.10, Rules of Professional Conduct, Palmer v. The Queen, [1980] 1 S.C.R. 759, R. v. Colley, 2024 ONCA 524, James Estate (Re), 2024 ONCA 623, Marshall v. Watson Wyatt & Co. (2002), 57 O.R. (3d) 813 (C.A.), Royal Bank of Canada v. Hussain, 2016 ONCA 637, Carinci v. Carinci-Serrao, 2024 ONSC 2955, Montague v. Bank of Nova Scotia (2004), 69 O.R. (3d) 87 (C.A.), Richardson v. Richardson, 2019 ONCA 983, Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc., 2024 ONCA 839, R. v. S. (R.D.), [1997] 3 S.C.R. 484

Apotex Inc. v. Eli Lilly and Company, 2025 ONCA 176

Keywords: Intellectual Property, Patent Law, Infringement, Statutory Interpretation, Damages, Mootness, Patented Medicines (Notice of Compliance) Regulations, SOR/99-133, ss. 5, 6, 8, Patent Act, R.S.C. 1985, c. P-4, s. 55.2, Merck Frosst Canada & Co. v. Apotex Inc., 2011 FCA 329, Apotex Inc. v. Sanofi-Aventis, 2014 FCA 68, Apotex Inc. v. Syntex Pharmaceuticals International Inc., 2010 FCA 155, Pfizer Canada Inc. v. Teva Canada Ltd., 2016 FCA 161, Teva Canada Limited v. Sanofi-Aventis Canada Inc., 2014 FCA 67, Eli Lilly Canada Inc. v. Apotex Inc., 2010 FC 1065

Bogue v. Miracle, 2025 ONCA 188

Keywords: Contracts, Solicitor and Client, Contingency Fee Agreements, Solicitor’s Liens, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101, Indian Act, R.S.C. 1985, c. I-5, ss. 29 and 89, Solicitors Act, R.S.O. 1990, c. S.15, ss. 24 and 28.1(5), Rules of Civil Procedure, r. 60.7(12.2), Raphael Partners v. Lam (2002), 61 O.R. (3d) 417 (C.A.), Laushway Law Office v. Simpson, 2011 ONSC 4155, Weenen v. Biadi, 2018 ONCA 288

Alleghe Mortgage Fund Ltd. v. Winona Park Towns Ltd., 2025 ONCA 204

Keywords: Contracts, Debtor-Creditor, Duty of Good Faith, Real Property, Mortgages, Civil Procedure, Summary Judgment, Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7

Rebello v. Ontario (Attorney General), 2025 ONCA 202

Keywords: Crown Liability, Absolute Privilege, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Vexatious Litigation, Abuse of Process, Adjournments, Appeals, Leave to Appeal, Costs, Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), Rebello v. Ontario, 2025 ONCA 127, Rebello v. Ontario, 2022 ONSC 4094 (Div. Ct.), Rebello v. Ontario, 2023 ONSC 601, Rebello v. Ontario (Transportation), 2024 ONCA 842, Amato v. Welsh, 2013 ONCA 258, Rebello v. Ontario, 2023 ONSC 3574, La Française IC 2 v. Wires, 2024 ONCA 171, McGregor v. Pitawanakwat, 2017 ONCA 77, McFlow Capital Corp. v. James, 2021 ONCA 753

Kohli v. Thom, 2025 ONCA 200

Keywords: Family Law, Parenting, Relocation, Spousal Support, Child Support, Imputing Income, Courts of Justice Act, R.S.O. 1990, c. C.43 s. 112, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) s. 16(3), s. 16.92(1), Family Law Act, R.S.O. 1990, c. F.3 s. 5, Children’s Law Reform Act, R.S.O. 1990, c. C. 12 s. 24(1), Child Support Guidelines, O. Reg. 391/97, Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008), Ahluwalia v. Ahluwalia, 2022 ONSC 1303, Ahluwalia v. Ahluwalia, 2023 ONCA 476, Chapman v. Somerville, 2022 SKCA 88, Kaplanis v. Kaplanis, 2005 ONCA 266, Barendregt v. Grebliunas, 2022 SCC 22, Palmer v. The Queen, [1980] 1 S.C.R. 759, Barendregt v. Grebliunas, 2022 SCC 22, Van de Perre v. Edwards, 2001 SCC 60, J.N. v. C.G., 2023 ONCA 77, Shipton v. Shipton, 2024 ONCA 624, Chapman v. Somerville, 2022 SKCA 88, McIntosh v. Baker, 2022 ONSC 4235, Hickey v. Hickey, [1999] 2 S.C.R. 518, Mason v. Mason, 2016 ONCA 725, Monahan-Joudrey v. Joudrey, 2012 ONSC 5984, Homsi v. Zaya, 2009 ONCA 322, Staples v. Callender, 2010 NSCA 49, Pirner v. Pirner (2005), 22 R.F.L. (6th) 291 (Ont. C.A), Ludmer v. Ludmer, 2014 ONCA 827, Drygala v. Pauli (2002), 61 O.R. (3d) 711 (Ont. C.A.), Yovcheva v. Hristov, 2019 ONSC 1007, Lavie v. Lavie, 2018 ONCA 10, Duffy v, Duffy, 2009 NLCA 48, R. v. Taillefer, 2003 SCC 70, A.C. v. K.C., 2023 ONSC 6017, Leskun v. Leskun, 2006 SCC 25

Peyman v. Peyman, 2025 ONCA 190

Keywords: Real Property, Quitclaim, Tax

York (Regional Municipality) v. Di Blasi , 2025 ONCA 203

Keywords: Municipal Law, Land Use Planning, Bylaws, Enforcement, Torts, Nuisance, Damages, Mitigation, Civil Procedure, Amending Pleadings, Contempt

Huang v. Mundulai , 2025 ONCA 205

Keywords: Family Law, Matrimonial Home, Civil Procedure, Appeals, Stay Pending Appeal, Lifting Stay, Panel Review, Extension of Time, Rules of Civil Procedure, Rule 63.01(1), Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (Ont. C.A.)

Liao v. Shang, 2025 ONCA 206

Keywords: Family Law, Civil Procedure, Settlements, Enforcement, Family Court, Appeals, Jurisdiction, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1), Family Law Act, R.S.O. 1990, c. F.3

CIVIL DECISIONS

Adelaide Metcalfe (Township) v. Strathroy-Caradoc (Municipality), 2025 ONCA 180

[Hourigan, Madsen and Pomerance JJ.A.]

Counsel:

P. Lombardi and M. Polvere, for the appellant
C. Brandow and J. Petrella, for the respondent
K. Coulter and B. Watterton, for the Ontario Land Tribunal

facts:

Strathroy-Caradoc and Adelaide Metcalfe are neighbouring municipalities. In 2003, under the authority of s. 20(1) of the Municipal Act, 2001 (the “Municipal Act”), the parties entered into an agreement under which Strathroy-Caradoc provided potable water and sewage services to certain properties within Adelaide Metcalfe (the “Servicing Agreement”).

The Servicing Agreement had a clause which set out a process to negotiate renewals that included an arbitration clause. The clause provided that if no agreement to continue the provision of services was reached and if arbitration had not been requested within a specific timeframe, Strathroy-Caradoc would be at liberty to terminate services.

On April 19, 2022, after the expiry of the timeframe referenced in the clause, Adelaide Metcalfe delivered a Notice of Request for Arbitration by the Ontario Land Tribunal (the “Tribunal”). Shortly thereafter, Strathroy-Caradoc brought an application in Superior Court seeking a declaration that the Servicing Agreement had terminated and was no longer in force, as well as an injunction preventing Adelaide-Metcalfe from adding connections to the water supply or sewage connections.

Adelaide Metcalfe successfully requested an adjournment of the proceeding in Superior Court to permit the Tribunal to rule on whether it would assume jurisdiction, effectively bifurcating that question from a hearing on the merits. Adelaide Metcalfe brought a motion before the Tribunal seeking an order confirming the Tribunal had jurisdiction. The Tribunal found that it had jurisdiction but expressly deferred several issues to a hearing on the merits. The Tribunal further noted that “[a]s the Court may determine that it will retain jurisdiction and elect to assume and retain responsibility for the determination of issues raised in the Notice of Application before it, the Tribunal will await the further decision of the Ontario Superior Court of Justice under that Application.”

Strathroy-Caradoc appealed to the Divisional Court. The Divisional Court granted the appeal and found that the Tribunal erred in determining it had jurisdiction. However, the analysis of the Divisional Court focused on “whether the Tribunal erred in its interpretation of the Servicing Agreement and the applicable statutory provisions.” The issue of prematurity was not raised before the Divisional Court and not addressed in its decision.

Adelaide Metcalfe appealed the decision of the Divisional Court. Before the Court of Appeal, Adelaide Metcalfe and the Tribunal argued there was no right of appeal of an interlocutory decision of an administrative tribunal, absent explicit statutory language to the contrary. Further, that Strathroy-Caradoc’s appeal to the Divisional Court was premature, and the Tribunal ought to be permitted to complete its process. Strathroy-Caradoc argued prematurity could not be raised given it was not raised before the Divisional Court, and even if it was, the matter was not premature.

issues:

Was the Divisional Court without jurisdiction to hear Strathroy-Caradoc’s appeal of the Tribunal’s decision, as it was, on its face, interlocutory?

holding:

Appeal quashed. Order of the Divisional Court set aside, and the order of the Tribunal restored.

reasoning:

Yes.

The Court held that the Divisional Court was without jurisdiction to hear Strathroy-Caradoc’s appeal of the Tribunal’s decision, since it was an interlocutory decision. The Court found that absent clear language indicating a right of appeal for an interlocutory decision, legislation conferring a right of appeal from a decision of an administrative tribunal requires that the decision be final. The appellate court had no discretion to hear an appeal from an interlocutory order.

Strathroy-Caradoc had raised the case of Johnson in support of the proposition that an order that determines the forum in which a case is to be heard is final, not interlocutory, for the purpose of determining appeal rights. The Court found this matter was wholly distinguishable from Johnson because the Tribunal did not, in fact, determine the forum on a final basis.
The Court found that the Tribunal made a preliminary decision that it had jurisdiction to hear the merits and took several preliminary actions to preserve the status quo between the parties pending such a hearing. However, the decision as to the proper forum remained with the Superior Court in a proceeding that had been adjourned.

Wyatt v. Mirabelli , 2025 ONCA 178

[Pepall, Paciocco and Sossin JJ.A.]

Counsel:

P. S. Mirsky, for the appellant
S. Cavanagh, for the respondents

facts:

The appellant appealed an order dismissing his action pursuant to r. 21.01(1)(a) of the Rules of Civil Procedure (determination of a question of law raised by a pleading). In the absence of any statement of defence, the motion judge struck out the amended statement of claim and dismissed the action as being statute-barred pursuant to the Limitations Act, 2002 as against the respondents. The appellant’s allegations in the underlying action revolved around water infiltrating onto his land from neighbouring properties.

issues:

Did the motion judge correctly decide as a question of law under r. 21.01(1)(a) that the facts pleaded in the amended statement of claim were statute-barred by the Limitations Act, 2002?

holding:

Appeal allowed.

reasoning:

No. Generally, a claim should not be struck out as statute-barred as a result of a limitation period pursuant to r. 21.01(1)(a). Discoverability issues, which are engaged by a limitation period defence, are factual and r. 21.01(1)(a) is intended for legal issues only where the facts are undisputed: Kaynes v. BP p.l.c.

The main principles applicable to a r. 21.01(1)(a) motion to determine a question of law, as outlined in Beaudoin Estate, are: (i) whether the determination of the issue is plain and obvious; (ii) the pleaded facts in the statement of claim are assumed to be true unless patently ridiculous or manifestly incapable of proof; and (iii) the statement of claim should be read as generously as possible. If the claim has some chance of success, it should be permitted to proceed.

The appellant conceded that the discovery of water infiltration at one of the four drainage ditch locations in 2016 was beyond the limitation period. However, he challenged the motion judge’s determination regarding the discovery of two other drainage ditch infiltrations in December 2020 and a final infiltration in April 2022. He argued that the motion judge failed to distinguish between the four instances of water infiltration and improperly treated them as a single event.

The Court noted that the motion judge recognized that the Court has discouraged r. 21.01 (1)(a) motions based on limitation defences before pleadings have closed. However, he did not consider that the amended statement of claim was to be read as generously as possible, accounting for deficiencies in drafting: Beaudoin Estate. Consistent with this omission, he treated the respondents’ alleged conduct relating to the open trench and the drainage ditch as being interchangeable and disregarded the appellant’s pleading relating to the culvert.

The Court held that on a generous review of the amended statement of claim, it was not plain and obvious that the appellant pleaded only one instance of actionable conduct that would be considered statute-barred. The Court acknowledged that the pleading in this case was not ideal. However, this appeal highlighted the desirability of waiting to bring such a motion after pleadings were closed and the parties and the court had the benefit of a statement of defence and the plaintiff’s reply.

Ontario Place Protectors v. Ontario , 2025 ONCA 183

[Nordheimer, Gomery and Wilson JJ.A.]

Counsel:

E.K. Gillespie, for the appellant
S.Z. Green and H. Evans, for the respondent Attorney General of Ontario
J.E., S.L. and C.T., for the intervener Ontario Place for All Coalition

facts:

The Ontario government decided to redevelop Ontario Place and passed the Rebuilding Ontario Place Act (“ROPA”). ROPA exempted Ontario Place from statutory regulations as well as from the City’s noise regulations. In addition, ROPA extinguished causes of action against the Crown and its agents that may have arisen out of the redevelopment, as well as related remedies. However, ROPA specifically preserved the ability to bring applications for judicial review.

The appellant brought an application challenging the constitutionality of ROPA, arguing that it insulates state action from judicial scrutiny and so violated s. 96 of the Constitution Act, and that the statutory and municipal exemptions constituted a breach of public trust. The application judge denied the appellant public interest standing to pursue its application, and in the alternative ruled that its challenge to ROPA failed.

issues:

Did the application judge err in denying the appellant public interest standing?
Did s. 17 of ROPA violate s. 96 of the Constitution Act, 1867?
Did s. 17 of ROPA breach the public trust?

holding:

Appeal dismissed.

reasoning:

Yes.

The Court found that the application judge erred in denying public interest standing to the Ontario Place Protectors. The court applied the three-part test for public interest standing established in Downtown Eastside. Under this test, a claimant must show (i) a serious and justiciable issue, (ii) a genuine interest in the matter, and (iii) that the application is a reasonable and effective means of bringing the issue before the courts.

The application judge concluded that the appellant failed to demonstrate a genuine interest and that the challenge would be better brought by a party whose cause of action was extinguished by section 17(2) of ROPA. The Court disagreed, holding that the appellant, a coalition of citizens and community groups deeply concerned with Ontario Place’s redevelopment, clearly had a genuine interest. Moreover, the Court noted that the challenge involved questions of law, and that the appellant’s application was a reasonable means of litigating the issues.

The Court upheld the application judge’s ruling that ROPA did not violate section 96 of the Constitution Act, 1867, which protected the core jurisdiction of the superior courts. The Court reaffirmed the principle set out in Poorkid Investments Inc. that section 96 did not prevent the legislature from creating, amending, or extinguishing causes of action, nor from establishing procedural requirements governing litigation, as long as the superior courts retain their core adjudicative functions.

The Court found that ROPA expressly preserved judicial review, meaning that the core jurisdiction of the superior courts to review government action remained intact. The Court rejected the appellant’s argument that section 17 of ROPA unlawfully conferred absolute immunity on the Crown, finding that the legislature’s decision to eliminate certain causes of action did not constitute a violation of section 96.

The Court also upheld the application judge’s conclusion that there was no established public trust doctrine in Canadian law that could invalidate ROPA. The Court reviewed prior cases, including Canada Forest Products Ltd., where the Supreme Court acknowledged the concept of public rights in the environment but did not recognize a broader public trust doctrine. Further, the court referenced La Rose v. Canada, which confirmed that the Crown’s responsibility to represent the public interest was not a legally enforceable obligation. Even if such a doctrine existed, the Court noted that the appellant failed to show how it would apply to the redevelopment of Ontario Place. The Court concluded that the appellant’s public trust argument lacked both legal foundation and practical application.

Although the Court granted the appellant public interest standing, it upheld the application judge’s findings that ROPA did not violate section 96 or breach any public trust. The Court found that the legislature acted within its authority in passing ROPA, and that the appellant’s challenge was ultimately a political matter outside the scope of judicial intervention. Accordingly, the appeal was dismissed.

Rosemont Management Inc. v. Cityzien Properties Limited , 2025 ONCA 198a>

[MacPherson, Huscroft and Dawe JJ.A.]

Counsel:

B. Hughes, for the appellants
G. Weedon, for the respondent

Keywords: Civil Procedure, Settlements, Disclosure, Striking Pleadings, Skymark Finance Corporation v. Ontario, 2023 ONCA 234, Aecon Buildings v. Stephenson Engineering Ltd., 2011 SCC 33, HU de Québec-Université Laval v. Tree of Knowledge International Corp., 2022 ONCA 467, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Poirier v. Logan, 2022 ONCA 350, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898

facts:

Rosemont had contracted to sell its leasehold interest in an apartment building on McCaul Street in Toronto to Cityzien. Mr. F. was Cityzien’s lawyer. As part of an amendment to the sale agreement, Cityzien became the building’s property manager for a two-year period leading up to the closing date. This authorized Cityzien to rent out units in the apartment building. It used this power to give Mr. F. a 15-year lease over an apartment unit for the nominal rent of $1 per year, as a means of repaying a debt that Cityzien owed Mr. F. for his legal fees.

The transaction between Rosemont and Cityzien did not close, and each commenced an application against the other. Rosemont also named Mr. F. as a respondent in its application, seeking, among other things, an order invalidating his 15-year apartment lease.

In late July 2021, Cityzien’s president began negotiating a settlement with Rosemont. The settlement agreement was finalized on August 5, 2021. As part of the agreement, Cityzien agreed to help Rosemont pursue its claim against Mr. F. Cityzien’s president also expressed an interest in suing Mr. F.

On the same day that Rosemont and Cityzien finalized their settlement agreement, Rosemont’s counsel cross-examined Mr. F. in connection with Rosemont’s application. However, Mr. F. was only informed twelve days later, on August 17, 2021, that Rosemont and Cityzien had settled their claims against each other and were now allied against him.

In April 2024, the motion judge heard two motions: (1) a motion by Rosemont to enforce its settlement with Cityzien, which Cityzien now opposed; and (2) a motion by Mr. F. to have Rosemont’s application against him stayed as an abuse of process. The motion judge ruled against Rosemont on both motions, refusing to enforce its settlement with Cityzien, and staying Rosemont’s application against Mr. F. Rosemont only appealed against the second of these orders.

issues:

Did the motion judge err by finding that its settlement with Cityzien “fundamentally changed” the litigation landscape from Mr. F.’s perspective “by July 30, 2021”, even though the settlement was not finalized until August 5, 2021?
Did the motion judge err by concluding that Rosemount’s disclosure of the settlement on August 17, 2021, was not “immediate”?
Since the motion judge found that Rosemont’s settlement with Cityzien was unenforceable, was the settlement “therefore incapable of entirely changing the litigation landscape”?

holding:

Appeal dismissed.

reasoning:

Did the motion judge err by finding that its settlement with Cityzien “fundamentally changed” the litigation landscape from Mr. F.’s perspective “by July 30, 2021”, even though the settlement was not finalized until August 5, 2021?

No. The Court disagreed with Rosemont’s arguments that the motion judge either erroneously found that it was required to disclose its settlement negotiations with Cityzien to Mr. F. even before a final agreement had been reached, when the negotiations were still cloaked by settlement privilege, or else erred by finding that Rosemont and Cityzien had reached a settlement agreement on July 30, 2021, when their negotiations actually continued until August 5, 2021.

The Court held that the motion judge’s reasons must be read as a whole. Notwithstanding his comments that the litigation landscape had fundamentally changed on July 30, 2021, and his further suggestion that it was an abuse of process for Rosemont to cross-examine Mr. F. on August 5, 2021, when finalization of the settlement agreement with Cityzien “was inevitable”, he made it clear later in his reasons that he viewed Rosemont’s obligation to disclose its settlement with Cityzien to Mr. F. as only having crystallized once the settlement agreement was actually signed on August 5, 2021. In short, the motion judge made it clear that he was staying Rosemont’s action because of its delay in disclosing the settlement after August 5, 2021, and not because he found that Rosemont had any obligation to disclose the settlement even before it was finalized on August 5, 2021.

Did the motion judge err by concluding that Rosemount’s disclosure of the settlement on August 17, 2021, was not “immediate”?

The Court held that the motion judge was entitled to find as he did that Rosemont’s disclosure of its settlement with Cityzien to Mr. F. was not “immediate”. Indeed, he found that Rosemont’s counsel “was not being candid” with Mr. F.’s counsel when he suggested to him on August 12, 2021, that Rosemont did not know what the status of the cross-examination of Cityzien’s president was, and that he had not agreed to the cross-examination being postponed. In reality, the cross-examination had been cancelled because of the settlement.

The Court was not persuaded that the motion judge made any palpable and overriding errors that would permit the Court to interfere with his fact-dependent conclusion that the settlement was not disclosed to Mr. F. “immediately”.

Since the motion judge found that Rosemont’s settlement with Cityzien was unenforceable, was the settlement “therefore incapable of entirely changing the litigation landscape”?

The Court noted that Rosemont believed in August 2021 that it had entered into what the motion judge found was “from its perspective … a very provident settlement with Cityzien”. The motion judge also found that the settlement was “grossly improvident” from Cityzien’s perspective, and that Rosemont ought to have known that Cityzien’s president did not have the authority to enter into the agreement without the unanimous consent of its shareholders. However, while Rosemont knew on August 5, 2021, that one of Cityzien’s minority shareholders was opposed to the settlement agreement, it did not know that Cityzien’s president would be unable to persuade this shareholder to change his mind. Rosemont proceeded to act on the basis that the settlement agreement with Cityzien was valid and binding.

The Court held that in these circumstances, it would be contrary to the policy behind the settlement disclosure rule to shield Rosemont from the consequences of its failure to make proper timely disclosure of the settlement to Mr. F., on the grounds that its subsequent efforts to enforce the settlement against Cityzien years later were unsuccessful.

Knisley v Canada (Attorney General), 2025 ONCA 185

[Nordheimer, Madsen and Pomerance JJ.A.]

Counsel:

Hucal and M. Ambwani, for the appellant

Singer, R. D. Davis, M. Santhirasegaram, S. Zisckind and S. Reid, for the respondent

facts:

The respondent, a veteran of the Canadian Armed Forces (“CAF”), alleged that Canada incentivized veterans to join the military by offering entitlement to a variety of benefits and programs under the Veterans Well-being Act (the “VWA”).

Veterans Affairs Canada (“VAC”) is the government department responsible for the administration of legislation relating to the care, treatment, and re-establishment in civilian life of veterans. From 2009 to 2015, the respondent applied for Benefits from Canada through VAC. The respondent claimed that VAC’s administration of his applications was marked by errors and delays that caused him significant psychological harm and aggravated his physical injuries. He sought to advance the proceeding as a class action on behalf of himself and other veterans who suffered such damages. The motion judge certified the action “subject to the class definition being amended to the satisfaction of the parties and the court”. Canada appealed.

issues:

Did the motion judge err in allowing the certification on the condition that the definition be amended to properly define the class?
Did the motion judge err in finding that the statement of claim disclosed a reasonable cause of action in negligence?

holding:

Appeal allowed.

reasoning:

Notwithstanding that the motion judge rejected the class definition presented to him, he certified the action as a class proceeding subject to the class definition being amended “to the satisfaction of the parties and the court”. However, the motion judge did not give any direction as to how the class definition could be amended to achieve that satisfaction, nor did he address what might happen if the parties, or the court, could not reach that satisfaction.

The Court held that the decisions relied on by the motion judge in reaching his conclusion – Hollick v. Toronto and Hoy v. Expedia – did not support certification. The Court explained that the reliance on Hollick turned on one sentence where McLachlin C.J. said: “Where the class could be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of the class be amended”. In the Court’s view, McLachlin C.J. was not suggesting that a class action could be certified with no identifiable class being established. Rather, in a circumstance where the proposed class definition was not acceptable, the motion judge could simply dismiss the certification motion, or the motion judge could amend the class definition to make it acceptable. The Court explained that the representative plaintiff could then accept the class definition as amended or abandon the class proceeding.

The Court reached this conclusion for three reasons. First, there is nothing in the Class Proceedings Act, 1992 contemplating “conditional” certification, as s. 5(1) establishes five criteria that, if met, require the Court to certify the class proceeding. Second, the class definition has a direct impact on the analysis whether there are common issues and whether a class proceeding is the preferable procedure. Third, certain procedural issues arise from such a conditional certification, such as where the parties cannot agree on a class definition or on one that the court finds acceptable.

The Court explained that the determination of an identifiable class is a crucial aspect of the certification process because it establishes whose rights are going to be determined in the proceeding and who has the right to opt out of that determination. The Court held that it was not acceptable to purport to certify a proceeding with that critical aspect undetermined.

Regarding the motion judge’s reliance on Hoy, the Court explained that the motion judge in Hoy did not determine whether there was an identifiable class because of other obstacles to certification. To the degree that he discussed the problems he saw with the class definition, the Court noted that the motion judge in Hoy stated that “subject to amendments to the Class Period”, the identifiable class criterion could be satisfied. Thus, the Court explained, the motion judge did make an express amendment to the class definition to make it acceptable.

The Court further explained that there is no foundation for a conditional certification in the Class Proceedings Act, 1992, as it refers to certification, refusal of certification, and decertification, but not to conditional certification.

Finally, the Court held that it is generally not appropriate to conditionally certify a class proceeding as this not only gives rise to procedural problems, but it also impacts three of the other stipulated requirements. As the Court explained, it is difficult to see how a proper determination could be made regarding the existence of common issues and the preferability of the class proceeding without knowing who compromises the class.

Canada argued that the statement of claim failed to reveal sufficient facts to establish the required proximity to give rise to a duty of care, referring to the asserted duty of care as “novel”. Accepting that characterization, the Court explained that the respondent had to satisfy the two stage Anns/Cooper test. The Court noted that the first stage involves two components: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant’s act? and (2) were there reasons such that that tort liability should not be recognized?

The Court agreed with the motion judge that the relationship between VAC and veterans established sufficient proximity that harm to veterans arising from the misadministration of the services designed for them was reasonably foreseeable. The Court held that VAC had to know that if it failed in its obligations to properly administer the benefits system that Canada had created, harm would be occasioned to our veterans.

The Court cited R. v. Imperial Tobacco, where McLachlin C.J. said that the approach to determining sufficient proximity under stage 1 of the Anns/Cooper test must be generous and “err on the side of permitting a novel but arguable claim to proceed to trial”. At the second stage, the Court could not find any residual policy considerations that would argue against a finding of proximity. In fact, the Court found that this was precisely the type of case where policy considerations favoured a finding of proximity. The Court explained that if a government chooses to establish a benefit system directed at a specific group of individuals, who may be enticed by that system to agree to join a government mandated operation, then policy considerations would appear to favour the conclusion that the government will administer that system in the best interests of those to whom it applies, and be held accountable if it does not.

Finally, the Court disagreed with Canada’s complaint that the claim did not disclose material facts in support of a duty of care.

Ly Innovative Group Inc. v Facilitate Settlement Corporation , 2025 ONCA 194

[Sossin, Favreau and Monahan JJ.A.]

Counsel:

D. A. Brooker and D. Krysik, for the appellants
M. Kersten, for the respondents

facts:

This appeal arose from a judgment terminating a residential tenancy and awarding the respondent landlords rental arrears of over $300,000 along with $100,000 in punitive damages. The appellants argued that the motion judge erred by refusing to sign a draft order (the “Draft Order”) giving effect to the terms of a binding settlement agreement and then, instead of recusing himself, adjudicating the matter. The appellants also sought to adduce fresh evidence in support of their arguments on appeal.

issues:

Did the motion judge errby improperly exercising his discretion in refusing to sign the Draft Order?
Did the motion judge err by failing to recuse himself and proceeding to adjudicate the motions on the merits, despite having knowledge of the parties’ prior settlement?
Did the motion judge err by making findings and comments in his reasons which gave rise to a reasonable apprehension of bias?

holding:

Appeal dismissed.

reasoning:

The appellants contended that, in effect, the motion judge adjudicated the enforceability of the settlement agreement as would be applicable on a motion under rule 49.09, without any such motion being before the court. The Court rejected this argument, holding that the motion judge merely adjourned the matter for one week in order to permit the parties to address certain concerns he identified with the Draft Order. The Court explained that the motion judge adjourned the matter pursuant to his inherent supervisory jurisdiction over the conduct of the litigation. The Court saw no error in the manner in which the motion judge exercised his discretion since he identified legitimate concerns with the provisions of the Draft Order and provided the appellants with an opportunity to address those concerns through a brief adjournment.

The appellants relied on r. 50.10, which provides that a judge who conducts a pre-trial conference shall not preside at the trial of an action or the hearing of an application, except with the written consent of all parties. Citing RBC v. Hussain, the Court explained that the rationale for r. 50.10 is to protect the integrity and usefulness of the pre-trial conference system, in which the court attempts to actively persuade litigants to reach reasonable settlements, and litigants are encouraged to speak freely, negotiate openly, and consider recommendations from the judge without prejudice to their positions in the litigation.

The Court noted that, in this case, while the motion judge did not conduct a pre-trial conference, he was made aware of the fact that the appellants were agreeable to vacating the premises and making a payment on account of rental arrears in order to settle the dispute over the lease. The appellants argued that, in these circumstances, their position on the motion was prejudiced since they were arguing that they did not have to leave the premises and were entitled to damages, contrary to what they agreed to in the settlement agreement.

The Court held that while there may be circumstances in which a judge who has knowledge of a settlement ought to be precluded from subsequently adjudicating the matter, there were no such circumstances present in this case. Although the motion judge was aware the appellants had been prepared to compromise the position originally set out in their defence and counterclaim, the same could be said of the respondents. The Court explained that the motion judge knew that the respondents had been willing to settle the matter without receiving the full amount of rental arrears, whereas they were arguing on the motion that they were entitled to the entirety of the arrears. Therefore, the Court found that the appellants suffered no greater prejudice than the respondents, since the motion judge was aware that both parties had been prepared to compromise their claims in order to settle the dispute.

Regardless, the Court explained that both the Rules and the Law Society’s Rules of Professional Conduct encourage parties and their counsel to compromise or settle a dispute wherever reasonably possible in order to reduce costs and delay and facilitate the early and fair resolution of disputes: Carinci. Thus, the Court found that it could not be suggested that mere knowledge on the part of the motion judge that the appellants had been prepared to compromise their claim could give rise to prejudice or bias.

The Court further noted that, whereas r. 50.10 expressly prohibits a judge who has conducted a pre-trial from presiding at the trial, no such prohibition is included in r. 49.06, which to individuals who may communicate information to the court, as opposed to establishing a prohibition on the court: Montague. The Court stated that this reflects the quite different judicial role in these different contexts. In a pre-trial conference, the judge takes an active role in attempting to foster a settlement, and the parties must be free to speak openly and accept or reject such recommendations, without fear that this will later compromise their position in the litigation. In contrast, the mere fact that a judge may become aware of the terms of an offer to settle does not necessarily compromise the judge’s required appearance of objectivity and impartiality and their jurisdiction to proceed to adjudicate the matter.

In this case, unlike in the case of a pre-trial conference, the motion judge did not participate in the settlement discussions. While the motion judge knew the proposed settlement contemplated the appellants vacating the premises, he also understood that the respondents had been prepared to accept a payment that was less than their full claim for rental arrears. The Court explained that during the argument on the merits, both parties were in the same position, in that they were both arguing for a result which differed from the compromise positions they had been prepared to accept under the settlement. Therefore, the Court held, it was hardly surprising that neither party raised any concern over the appropriateness of the motion judge adjudicating the matter.

The appellants argued that various findings and comments in the motion judge’s reasons reflected a lack of impartiality. The Court held that while the motion judge used strongly worded language, perhaps unnecessarily so, each of his impugned comments were supported by a detailed and reasoned analysis of the evidence. While the appellants complained about the language used, they did not identify any error in the motion judge’s factual or legal findings.

The Court explained that the test for finding a reasonable apprehension of bias is objective applied against the backdrop of a strong presumption of judicial impartiality: Aroma Franchise Company. The Court stated that a reasonable person, before concluding that a reasonable apprehension of bias existed in relation to a judge, would require clear evidence that the judge was not approaching the matter with an open mind fair to all parties: R. v. S. (R.D.).

Even if the Court were to accept that the motion judge made the alleged comments, such comments fell far short of establishing that he failed to approach the matter with an open mind.

Apotex Inc. v. Eli Lilly and Company , 2025 ONCA 176

[Hourigan, Madsen and Pomerance JJ.A.]

Counsel:

H. Radomski, J. Topolski and N. De Luca, for the appellant
M. Richard, A. Goor and R. Johnston, for the respondents

facts:

The appellant, Apotex Inc. (“Apotex”), sought to market a generic copy drug known as “Apo-Atomoxetine” based on the 735 Patent held by one of the respondents, Eli Lilly and Company (“Lilly”). Apotex indicated that it would wait until Lilly’s patent expired before seeking a Notice of Compliance (“NOC”) under the Patented Medicines (Notice of Compliance) Regulations (the “Regulations”). Before the expiration of the 735 Patent, another generic manufacturer, Teva (“Teva”), sought to impeach the 735 Patent but did so by way of an action under the Patent Act rather than through the Regulations. Shortly thereafter, Apotex served Lilly with a Notice of Allegations (“NOA”). Once served with an NOA, the patent owner can choose to allow the generic to enter the market and reserve the right to sue for patent infringement, or it can bring an application to prohibit the marketing of the generic drug. Lilly then started a prohibition proceeding which triggered an automatic stay on Apotex receiving an NOC.

Teva’s action against Lilly, and Lilly’s prohibition application against Apotex proceeded separately. In the action involving Teva, the Court declared the 735 Patent invalid. The invalidation of the 735 Patent permitted Apotex to obtain an NOC for the generic drug on September 21, 2010. The prohibition proceeding involving Apotex was dismissed as moot since Apotex had already received its NOC. Additionally, the trial judge found against Apotex on each of its allegations and would have allowed Lilly’s application but for his finding in the Teva action that the 735 Patent was invalid.

Under s. 8 of the Regulations, if a prohibition application is unsuccessful, the generic company may have a claim in damages against the patent owner for the loss arising from delay of introducing the generic drug into the market. A patent holder is liable for damages where its prohibition application is withdrawn, discontinued, or dismissed by the court hearing the application, or where the order is reversed on appeal. Apotex brought a claim for s. 8 damages against Lilly for delay in bringing its product to market. The trial judge dismissed the claim, holding that s. 8 only entitled a generic manufacturer to damages where the prohibition application was dismissed on the merits by the judge hearing the application. Applied to the facts of the matter, the trial judge held that a dismissal for mootness did not qualify, therefore Apotex could not make a claim under s. 8. The trial judge went on to consider damages in the event that s. 8 did apply and found that Apotex would have refrained from marketing the generic drug any earlier than it did, even absent Lilly’s prohibition application and was therefore not entitled to damages.

Apotex appealed both aspects of the trial judge’s ruling.

issues:

Did the trial judge err in finding that as a matter of statutory interpretation, s. 8 of the Regulations did not apply?
Did the trial judge err in concluding that Apotex failed to prove that Lilly was liable for damages?

holding:

Appeal dismissed.

reasoning:

Not decided.

The Court found it unnecessary to address the first issue involving the statutory interpretation of s. 8. Whether or not the trial judge correctly interpreted the provision, the Court found he did not err in his analysis of what would happen if it did apply. Accordingly, the first issue was not considered.

The trial judge did not err in concluding that Apotex failed to prove that Lilly was liable for damages. To succeed, Apotex had to establish that it would have come to market in the hypothetical world sooner than it did in the real world. The trial judge found that Apotex could have launched its product as of October 10, 2008. However, the trial judge found that while Apotex could have entered the market at that time, it likely would not have done so. He noted that in the hypothetical world, Lilly would have continued to hold the 735 Patent until it was invalidated on September 21, 2010.

Because Lilly still held the 735 Patent in the hypothetical world, Apotex would have faced a risk of liability for infringing the patent if it had gone to market. The trial judge relied on numerous facts to corroborate that Apotex would not have brought the product to market on those risks. Apotex raised the argument that the trial judge was in the wrong to suggest that Apotex may not be the sole generic on the market. The Court found that the trial judge properly considered the hypothetical fact scenario and the liabilities that would have likely deterred Apotex from going to market on the date it alleged it would have done so. Additionally, the Court found that the risk of liability could be considered increased having the hindsight that the trial judge rejected Apotex’s arguments against the patent on the prohibition application.

Bogue v. Miracle , 2025 ONCA 188

[Nordheimer, Gomery and Dawe JJ.A.]

Counsel:

A. Rogerson and N. Mukherjee, for the appellant
G. Roberts, for the respondent
J. Larry, for the receiver, Schwartz Levitsky Feldman Inc.

facts:

This appeal arose from a business dispute between the appellant and his son over “Smokin’ Joe’s,” an on-reserve gas bar on Tyendinaga Mohawk Territory. The appellant retained the respondent, his lawyer, for arbitration under a contingency fee agreement (“CFA”). The arbitrator awarded the appellant a monetary value and control of the business through a buy/sell process. Though the appellant did not recover the monetary award, he gained control of the profitable business. The respondent sought payment of the contingency fee and obtained a summary judgment against the appellant for $2,858,500 and was granted a solicitor’s lien over the appellant’s assets. The appellant challenged this on the basis that the respondent was owed no fee as there was no money recovered, the CFA was unenforceable due to non-compliance with the Solicitors Act, and that the solicitor’s lien was improperly granted.

issues:

Did the motion judge err in granting summary judgment for the contingency fee?
Did the motion judge err in granting the solicitor’s lien?

holding:

Appeal dismissed.

reasoning:

The Court rejected the appellant’s argument that the contingency fee was only payable upon recovering a monetary award. It found that the arbitration conferred a significant benefit on the appellant — gaining full control of a highly profitable business — which triggered the fee obligation. The Court emphasized that the Solicitors Act allows contingency fees to arise from the recovery of property, not just money. The CFA’s reference to 25% of the “amount awarded” was interpreted as setting the calculation method, not limiting payment to cash awards. Additionally, the appellant had previously executed an assignment of the arbitration award to his lawyer, acknowledging the $2,871,000 debt. This acknowledgment undermined the appellant’s claim that no fee was owed.

The Court further concluded that the CFA was fair and reasonable, meeting the enforceability test under s. 24 of the Solicitors Act. Non-compliance with regulatory requirements did not invalidate the CFA, as those provisions did not render non-compliant agreements void.

The Court upheld the solicitor’s lien, distinguishing between statutory and common law liens. The Court found the motion judge correctly found that a statutory solicitor’s lien under s. 34 of the Solicitors Act did not apply because the arbitration was not a proceeding in the Superior Court. However, the respondent was entitled to a common law solicitor’s lien, as the three-part test for granting such a lien was satisfied. First, the property — control of Smokin’ Joe’s — existed at the time the lien was granted. Second, the recovery of that property resulted directly from the respondent’s legal work in the arbitration. Third, there was clear evidence that the appellant would not pay the fees.

The Court also rejected the appellant’s argument that the Indian Act barred enforcement. While s. 89 protects on-reserve property from seizure, the Court found that the “commercial mainstream” exception applied, allowing enforcement against the appellant’s on-reserve business interests. However, the Court noted that off-reserve assets remained open to seizure. The Court concluded that there was no basis to interfere with the motion judge’s exercise of discretion in granting the common law solicitor’s lien.

Alleghe Mortgage Fund Ltd. v. Winona Park Towns Ltd., 2025 ONCA 204

[MacPherson, Huscroft and Dawe JJ.A.]

Counsel:

J. Somerville and J. Saliba, for the appellants

B. Macdonald and M. Samuels, for the respondent

facts:

In August 2022, the respondent Alleghe loaned $2 million to the appellant Winona, which loan was guaranteed by Winona’s principal, the appellant, PT. The loan was secured by a second mortgage on land that the appellant, Winona intended to use for a residential housing development. The loan was intended to cover the “soft costs” of Winona’s development project, and most of the loan funds – approximately $1.76 million – were paid to the City of Toronto to cover the cost of building permits. The appellants signed a Direction in which they irrevocably authorized Alleghe to cancel the building permits and have the money that had been paid for them returned to Alleghe by the City.

In November 2022, Winona breached the loan agreement by failing to make a contractually required payment. Alleghe later delivered a notice of sale and a notice of intention to enforce security, and in March 2023 commenced an action against the appellants. Winona in turn counterclaimed against Alleghe.

The mortgage agreement had a term that allowed Alleghe to pay out any encumbrance on title to the property and add this amount to the loan principal. In June and July 2023, Alleghe exercised this term and paid approximately $6.2 million to the first mortgagee to discharge the first mortgage on the property.

Both sides brought motions for summary judgment, which were heard together. The motion judge dismissed the appellants’ motion and granted summary judgment to Alleghe.

issues:

Did the motion judge err by not finding that Alleghe breached its duty of good faith by not invoking the Direction, cancelling the building permits, and obtaining a refund of money that had been advanced to the City before it exercised its rights under them mortgage to sell the property?
Did the motion judge err in articulating or applying the test for the exercise of contractual discretion in good faith?

holding:

Appeal dismissed.

reasoning:

The motion judge did not err by not finding that Alleghe breached its duty of good faith. Assuming Alleghe could have obtained partial repayment of the loan by cancelling the building permits, the Court found that cancelling the building permits would have reduced the value of the property, thus putting Alleghe’s prospect of obtaining full repayment at risk. Accordingly, the motion judge was entitled to conclude that Alleghe acted in good faith when it chose to exercise its contractual rights under the mortgage.

The motion judge did not err in articulating or applying the test for the exercise of contractual discretion in good faith. Particularly, the appellants submitted that the motion judge erred “by failing to connect the exercise of contractual discretion with the purpose of the contract.” The appellants’ assertion was premised on their contention that they would have somehow been able to raise sufficient funds to pay Alleghe the rest of what it was owed. The Court found that the appellants had made no payments towards the loan since November 2022 nor provided any evidence they were capable of doing so. Accordingly, the Court found that the motion judge was entitled to conclude as he did on the record before him.

Rebello v. Ontario (Attorney General), 2025 ONCA 202

[MacPherson, Huscroft and Dawe JJ.A.]

Counsel:

T.R., acting in person

Mortimer and B. Lekhi, for the respondents

facts:

In April 2018, ServiceOntario mistakenly transferred the registered ownership of the appellant’s vehicle to an auto parts company. Although the error was quickly corrected, it led to prolonged litigation with a complex procedural history. The primary issue in this appeal was the appellant’s attempt to amend her first 2019 action to add the Crown in right of Ontario as a defendant. The appeal was dismissed on the grounds that the claims related to the registration transfer duplicated those already dismissed at the summary trial of her 2021 action, constituting an abuse of process.

issues:

Did the motion judge err in dismissing the appellant’s claims against Crown counsel, the Premier, the Attorney General, and the judiciary?
Did the motion judge err in finding the 2019 action was an abuse of process?
Did the motion judge err in refusing to adjourn the motion?
Did the motion judge err in awarding costs?

holding:

Appeal dismissed.

reasoning:

The Court rejected the appellant’s argument, upholding the motion judge’s decision to dismiss these claims for failing to disclose a reasonable cause of action. The Court agreed that Crown counsel owed no duty of care to the appellant and that both Crown counsel and the judiciary were protected by the doctrine of absolute privilege. The claims against the Premier and the Attorney General lacked material facts and failed to establish a private law duty of care. The Court also upheld the motion judge’s refusal to grant leave to amend, concluding that the defects in the claim were “incapable of being cured.”

The Court upheld the motion judge’s finding that the appellant’s 2019 action constituted an abuse of process. It agreed that the claims were duplicative of those raised in the appellant’s 2021 action, which had already been dismissed as out of time. The Court emphasized that relitigating the same claims undermined the fairness and integrity of the court process and found no error in the motion judge’s application of the abuse of process doctrine.

The Court upheld the motion judge’s decision to refuse the appellant’s request for an adjournment. It found no prejudice to the appellant in proceeding with the motion while her appeal from the dismissal of the 2021 action was pending, concluding that the motion judge properly exercised his discretion.

The Court upheld the motion judge’s decision to award $6,243.55 in costs. It noted that leave to appeal the costs award was required and that the appellant had not sought leave. Even if leave had been sought, the Court found no basis for interfering with the motion judge’s exercise of discretion in awarding costs.

Kohli v. Thom , 2025 ONCA 200

[Simmons, Coroza and Sossin JJ.A.]

Counsel:

M. H. Tweyman, for the appellant
M. DeGroot, for the respondent

facts:

The appellant and the respondent started cohabiting in December 2001 in California and married in 2003. Since neither party was a permanent resident in the United States, they eventually moved out of the country in 2007 to live in New Brunswick. After a year in New Brunswick, the parties moved to Toronto.

The respondent was the primary income-earner in the relationship, working various jobs in the earlier years and eventually co-owning a consulting business, incorporated in 2007 and revived in 2017. In 2011, he had started another business but parted ways with the co-owners in 2016 and was bought out in 2017.

The appellant worked minimum wage jobs until 2011 when she left the workforce due to a bad back. In addition, she experienced symptoms of obsessive-compulsive disorder (“OCD”) and anxiety that made it challenging to find employment.

Their son was born in April 2018. By then, the parties were experiencing a significant breakdown in the relationship. On September 11, 2019, the respondent received a letter from the appellant’s counsel stating the appellant’s intention to separate. They continued to live together for several days until the appellant told the respondent that her father was coming to help her and the child move to New Brunswick, where her family lived. The respondent interpreted this to mean the appellant would be taking the child imminently and moved out of the home with the child to a friend’s residence. He informed the police of his taking the child out of the matrimonial home in response to the appellant’s plans.

The appellant claimed that the respondent kidnapped their son, who was still breastfeeding. She then contacted Peel Regional Police and made allegations of historical abuse. The respondent was charged with numerous offences, including assault and uttering threats, which were later withdrawn after the respondent entered into a peace bond. The child was returned to the appellant’s care and the parties have remained separated since.

In this appeal, the appellant, sought to overturn an order, which, among other things, dismissed her request to relocate with her young son to New Brunswick and rejected her claim for spousal support from the respondent.

issues:

Did the trial judge err in denying the appellant’s request to relocate to New Brunswick?
Did trial judge err in calculating spousal and child support?

holding:

Appeal allowed, in part.

reasoning:

Did the trial judge err in denying the appellant’s request to relocate to New Brunswick?

No. The Court did not agree with the appellant’s arguments that trial judge made palpable and overriding errors in (i) failing to properly apply his findings of family violence to the issue of relocation which reflected improper stereotypical reasoning; (ii) failing to properly consider the reasons for the move, including the importance of a happy and well-adjusted primary parent; and (iii) rejecting the Office of the Children’s Lawyer (OCL) Report recommending sole decision-making to the appellant. The Court addressed each issue in turn.

Regarding (i) the Court held that the trial judge was attentive to the impact of family violence on the best interests of the child. The trial judge highlighted the importance of family violence in his analysis by considering this factor first with respect to the enumerated considerations under s. 16(3) of the Divorce Act. He focused his analysis under s. 16(3)(j): (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child.

Regarding (ii) the Court held that the trial judge set out the appellant’s reasons for the move and then highlighted the case law affirming that an improvement in a parent’s wellbeing is often in the best interest of the child. The trial judge recognized “the benefits that may accrue to the appellant” from the move, but that his “focus must remain on the best interests” of the child, and he then listed several other relevant considerations related to the mother’s motivation and plan for the move. The trial judge’s reasons did not disclose error; the focus of the analysis under s. 16(3) remains, under each subsection, on the best interests of the child.

Regarding (iii) the Court noted that the trial judge acknowledged the OCL recommendation that the appellant be permitted to relocate to New Brunswick with the child. However, the trial judge concluded the report’s recommendations were “stale dated” given the significant length of time between the report and trial. In addition to the considerable passage of time, the trial judge found that the recommendations were a product of the circumstances that were no longer at play; at the time of the report, there was a non-contact order between the parties and the child was much younger (28 months). At the time of trial, the child was between four and a half and five years old, and the parties were in contact, even taking the child on outings together to Canada’s Wonderland the previous summer. The Court held that the trial judge did not err in his consideration of the OCL report. The crux of the appellant’s complaint was that the trial judge did not give enough weight to the report. That was not a legal error. What weight the OCL recommendation was to be given was for the trial judge and he did not exercise his discretion unreasonably.

Did trial judge err in calculating spousal and child support?

Yes. On the imputation of income, the trial judge reached two key findings underlying his ultimate award of spousal and child support. The first finding was imputing income to the respondent of $76,370 where his asserted income was $50,400 for 2022. The second finding was imputing income to the appellant of $31,000 where her asserted income was $0.

The Court held that the first of these findings disclosed no error in principle or misapprehension of the evidence. The second finding, however, did reveal both an error in principle and a misapprehension of the evidence.

Regarding the first finding, the appellant argued that the imputation of income of $93,035 for the interim support order of Nishikawa J. should have served as a “guidepost” to the trial judge. The appellant asked the Court to impute an income of $100,000 to the respondent, which would reflect the interim income imputation of Nishikawa J. and a gross-up to reflect tax arrangements that may be in place, and the reality that the payor may be declaring and paying tax on substantially less income than the payor is actually earning.

The respondent argued that the trial judge’s imputation of income to him was correct and appropriately reflected the applicable adverse inference. The respondent asserted at trial that his income for support purposes was $50,400. The trial judge rejected that submission and, applying the adverse inference, imputed income to the respondent at his 2019 level of $76,370. The respondent also highlighted that his evidence at trial on his income was largely uncontested.

The Court agreed with the respondent that the trial judge did identify and invoke the adverse inference flowing from the failure of the respondent to fully disclose his income. While it was open to the trial judge to impute an even higher income, or to use the order of Nishikawa J. on the interim proceedings as a benchmark, or to gross-up the amount of imputed income to reflect tax arrangements or savings, he was not required to do so. He chose a figure roughly between the $50,400 the respondent claimed and the $93,035 in income that had been imputed by Nishikawa J. This figure fell within an acceptable range of outcomes and did not reflect an error in principle.

Regarding the second finding, the Court held that appellate intervention was warranted in these circumstances. Having acknowledged the underlying facts of the family violence and the impact of this violence on the appellant, the trial judge failed to consider the significance of these findings for the imputation of income. The expectation that the appellant continued to be able to work in full-time minimum wage settings after January 1, 2022, just as she had in 2011, was unjustified on the record before him. Additionally, there was no evidence before the trial judge of a change in the mental health of the appellant on January 1, 2022. The trial judge referred to other relevant factors, such as changes in the economy and the availability of employment in 2022 but failed to grapple with the potential relevance of family violence to the appellant’s ability to work.

The Court further held that if the trial judge had any doubts as to the existence or severity of the family violence, it would be reasonable to expect a party to substantiate the emotional and psychological effects of that violence with medical evidence or evidence of qualifying for benefits based on medical evidence. In this case, however, having found that the appellant survived sustained family violence at the hands of the respondent, it was unreasonable for the trial judge not to grapple with the potential effect of this violence on the appellant’s ability to work. Instead, he concluded that she was healthy enough to work on a full-time basis, simply because she had failed to apply for social benefits on the basis of her mental health, and had failed to provide specific, medical evidence of her condition. The onus was not on the appellant to establish her lack of income. The trial judge found as facts that the appellant had not worked since 2011 and was receiving no income from employment. Rather, the onus was on the respondent to establish that the appellant was intentionally underemployed or unemployed. The Court held that the trial judge committed a palpable and overriding error in finding the respondent had met that onus on this record.

Lastly, the Court held that the trial judge’s personal observations of the appellant’s capabilities at trial were not a sound evidentiary basis on which to infer that she was intentionally unemployed. The Court reversed this aspect of the trial judge’s decision and substitute da finding that no income should be imputed to the appellant.

Considering the trial judge’s error in imputing income to the appellant, the resulting support orders were recalculated. Using the trial judge’s imputation of $76,370 in income to the respondent, maintaining his finding that mid-range support was appropriate, and replacing only his imputation of income to the appellant with an actual income of $0, resulted in a child support award of $712/month and a spousal support award of $1,453/month from January 2022 onwards for an indefinite duration.

SHORT CIVIL DECISIONS

Peyman v. Peyman, 2025 ONCA 190

[Miller, Trotter and Copeland JJ.A.]

Counsel:

B. Hall, for the appellant
T. Bracken, for the respondent

Keywords: Real Property, Quitclaim, Tax

York (Regional Municipality) v. Di Blasi , 2025 ONCA 203

[MacPherson, Huscroft and Pomerance JJ.A.]

Counsel:

R. Boggs, for the appellant
D. O. Smith and P. Morley, for the respondent

Keywords: Municipal Law, Land Use Planning, Bylaws, Enforcement, Torts, Nuisance, Damages, Mitigation, Civil Procedure, Amending Pleadings, Contempt

Huang v. Mundulai , 2025 ONCA 205

[MacPherson, Huscroft and Dawe JJ.A.]

Counsel:

A. O. Mundulai, acting in person
T. Majeed, for the responding party

Keywords: Family Law, Matrimonial Home, Civil Procedure, Appeals, Stay Pending Appeal, Lifting Stay, Panel Review, Extension of Time, Rules of Civil Procedure, Rule 63.01(1), Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (Ont. C.A.)

Liao v. Shang, 2025 ONCA 206

[MacPherson, Huscroft and Dawe JJ.A.]

Counsel:

H. S, acting in person
A. L, acting in person

Keywords: Family Law, Civil Procedure, Settlements, Enforcement, Family Court, Appeals, Jurisdiction, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1), Family Law Act, R.S.O. 1990, c. F.3

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
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416.593.2953 Email