COURT OF APPEAL SUMMARIES (March 17 – 21)
Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of March 17, 2025. It was a light week.
Lochan v Biance Holdings Limited was an appeal from the certification of a class action brought on behalf of investors who purchased cryptocurrency derivative products through an asset trading platform operated by the Appellants. The Claim alleged that the Appellants engaged in the business of trading securities in violation of the Securities Act giving rise to both common law and statutory causes of action. The Court held that the motion judge did not err in finding that the Claim pleaded a reasonable cause of action pursuant to both the Securities Act and under the common law. Furthermore, the Court held that the motion judge did not err in finding that the Respondents had met their burden of establishing that there was “some basis in fact” for their proposed common issues. As a result, the appeal was dismissed.
Hartin Estate (Re) reminds appellate counsel that the deadline to perfect an appeal does not start to run until the appellant is notified that the transcripts are ready. The failure of a self-represented party to order the transcripts in this case was excused.
Other decisions this week included the enforcement of a foreign judgment.
Wishing everyone an enjoyable weekend.
John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Table of Contents
Civil Decisions
Hartin Estate (Re), 2025 ONCA 223
Keywords: Wills and Estates, Estate Trustees, Removal, Breach of Fiduciary Duty, Motions, Perfecting an Appeal, Extension of Time, Dismissal for Delay, Rules of Civil Procedure, rr. 61.05(5), 61.09, 61.13, 61.16(2.2)
Lochan v Binance Holdings Limited, 2025 ONCA 221
Keywords: Securities, Unauthorized Issuance and Trading of Securities, Contracts, Defences, Illegality, Remedies, Rescission, Civil Procedure, Class Proceedings, Certification, Common Issues, Pleadings, Reasonable Cause of Action, Standard of Review, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1), Securities Act, R.S.O. 1990, c. S-5, ss. 11, 13, 53(1), 71(1), 133, Rules of Civil Procedure, r. 2, Lochan. v. Binance Holdings Limited, 2024 ONSC 2302, Binance Holdings Limited v. Ontario Securities Commission, 2024 ONCA 805, McCreight v. Canada (Attorney General), 2013 ONCA 483, Temilini v. Ontario Provincial Police (Commissioner) (1990), 73 O.R. (2d) 664 (C.A.), Polo Digital Assets, Ltd (Re), 2022 ONCMT 32, Mek Global Limited (Re), 2022 ONCMT 15, Pro-Sys Consultants Ltd. V. Microsoft Corporation, 2013 SCC 57, Fischer v. IG Investment Management Ltd., 2012 ONCA 47, Housen v. Nikolaisen, 2002 SCC 33, Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, Palmer v. Teva, 2024 ONCA 220, Pioneer Corp. v. Godfrey, 2019 SCC 42, Jones v. F. H. Deacon Hodgson Inc. (1986), 56 O.R. (2d) 540 (H.C.)., Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, MediaQMI inc. v. Kamel, 2021 SCC 23, Kerr v. Danier Leather Inc., 2007 SCC 44, Re Northwestern Trust Co., [1926] S.C.R. 412, Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, Lochan v. Binance Holdings Limited, 2023 ONSC 6714, Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401 (C.A.), Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), R. Sullivan, Sullivan on the Construction of Statutes (7th ed. 2022)
Short Civil Decisions
Chippewas of Saugeen First Nation v South Bruce Peninsula (Town), 2025 ONCA 207
Keywords: Civil Procedure, Costs, Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2023 ONCA 565, Chippewas of Saugeen First Nation v. the Town of South Bruce Peninsula et al., 2024 ONSC 2827
Li v Barber, 2025 ONCA 216
Keywords: Civil Procedure, Costs
Roger Vanden Berghe NV v Korhani of Canada Inc., 2025 ONCA 226
Keywords: Breach of Contract, Debtor-Creditor, Private International Law, Jurisdiction, Civil Procedure, Foreign Judgments, Enforcement, Appeals, Defences, Ineffective Assistance of Counsel, Fresh Evidence, R. v. Palmer, [1980] 1 S.C.R. 759, Sabaratnam v. Yohanathan, 2024 ONCA 845, OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520
CIVIL DECISIONS
Hartin Estate (Re), 2025 ONCA 223
[Paciocco J.A. (Motion Judge)]
Counsel:
M.M., acting in person
J. L. McDonald and D. Smith, for the responding party
Keywords: Wills and Estates, Estate Trustees, Removal, Breach of Fiduciary Duty, Motions, Perfecting an Appeal, Extension of Time, Dismissal for Delay, Rules of Civil Procedure, rr. 61.05(5), 61.09, 61.13, 61.16(2.2)
facts:
The applicant, M, was the daughter of the deceased and acted as executor and estate trustee. The respondent, also daughter of the deceased, raised objections to the manner the estate was administered. The trial judge found that the applicant breached her fiduciary duties, revoked her appointment as estate trustee, denied her compensation, and ordered her to reimburse the estate and pay costs. The applicant filed a Notice of Appeal but failed to perfect the appeal by not ordering required transcripts, she sought an extension to perfect, citing health issues and confusion. The respondent opposed the extension and sought to dismiss the appeal for delay.
issues:
- Should the applicant’s motion for extension of time to perfect the appeal be granted
- Should the respondent’s motion to dismiss the appeal for delay be granted?
holding:
Both motions dismissed.
reasoning:
- No.
The court dismissed M’s motion, finding that an extension was unnecessary because the perfection deadline had not yet begun to run. Under Rule 61.09(1)(b), if transcripts are required, the deadline to perfect does not begin until the appellant receives notice that the transcripts are ready. In this case, transcripts were required under Rule 61.05(5) because the parties had not agreed to omit them, and M had not obtained a court order relieving her from this requirement. Since M had not yet ordered the transcripts, the perfection period had not started, rendering her request for an extension moot.
2. No.
The court declined to dismiss the appeal for delay, despite the availability of this remedy under Rule 61.13(1) where an appellant fails to file proof of ordering transcripts. The court exercised its discretion, considering M’s status as a self-represented litigant and her genuine confusion over the rules. The delay was brief, and no prejudice resulted. The court emphasized that dismissing the appeal in these circumstances would be disproportionate. Instead, M was given until March 31, 2025, to file proof of ordering transcripts or seek relief from compliance under Rule 61.09(4), failing which the respondent could renew her motion for dismissal.
Lochan v Binance Holdings Limited, 2025 ONCA 221
[Sossin, Favreau and Monahan JJ.A.]
Counsel:
C. Sainsbury, G. Splawski, and P. N. Gemson, for the appellants
J. C. Orr, A. Allison, and J. Careen, for the respondents
Keywords: Securities, Unauthorized Issuance and Trading of Securities, Contracts, Defences, Illegality, Remedies, Rescission, Civil Procedure, Class Proceedings, Certification, Common Issues, Pleadings, Reasonable Cause of Action, Standard of Review, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1), Securities Act, R.S.O. 1990, c. S-5, ss. 11, 13, 53(1), 71(1), 133, Rules of Civil Procedure, r. 2, Lochan. v. Binance Holdings Limited, 2024 ONSC 2302, Binance Holdings Limited v. Ontario Securities Commission, 2024 ONCA 805, McCreight v. Canada (Attorney General), 2013 ONCA 483, Temilini v. Ontario Provincial Police (Commissioner) (1990), 73 O.R. (2d) 664 (C.A.), Polo Digital Assets, Ltd (Re), 2022 ONCMT 32, Mek Global Limited (Re), 2022 ONCMT 15, Pro-Sys Consultants Ltd. V. Microsoft Corporation, 2013 SCC 57, Fischer v. IG Investment Management Ltd., 2012 ONCA 47, Housen v. Nikolaisen, 2002 SCC 33, Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, Palmer v. Teva, 2024 ONCA 220, Pioneer Corp. v. Godfrey, 2019 SCC 42, Jones v. F. H. Deacon Hodgson Inc. (1986), 56 O.R. (2d) 540 (H.C.)., Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, MediaQMI inc. v. Kamel, 2021 SCC 23, Kerr v. Danier Leather Inc., 2007 SCC 44, Re Northwestern Trust Co., [1926] S.C.R. 412, Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, Lochan v. Binance Holdings Limited, 2023 ONSC 6714, Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401 (C.A.), Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), R. Sullivan, Sullivan on the Construction of Statutes (7th ed. 2022)
facts:
Binance Holdings Limited, Binance Canada Capital Markets Inc. and Binance Canada Holdings Ltd. (the “Appellants”) appealed the certification of an action brought on behalf of Canadian investors who purchased cryptocurrency derivative products through an asset trading platform operated by the Appellants. The Respondents proposed to represent investors who purchased the products between September 13, 2019, and the date of certification (the “Class”). They alleged that the Appellants engaged in the business of trading in securities without registering, and distributed securities without complying with applicable prospectus requirements, in violation of the Securities Act (“OSA”) and other securities laws, giving rise to both common law and statutory causes of action (the “Claim”). The motion judge found that the Claim satisfied the requirements of section 5(1) of the Class Proceedings Act (“CPA”), certified the proceeding as a class action, and appointed the Respondents as representative plaintiffs.
The Appellants sold Cryptocurrency Derivatives and retail investors could purchase the Cryptocurrency Derivatives by registering and opening an account on the Binance website. However, the Appellants did not register with the Ontario Securities Commission (“OSC”) to engage in the business of trading in securities, nor did they file or deliver a prospectus to purchasers of Cryptocurrency Derivatives. The Claim pleaded that prospectus requirements are fundamental to Canadian securities laws and provides that investors are given full disclosure of all material facts relating to the securities offered. The Claim alleged that the Appellants illegally sold securities to members of the Class, as the sale of the Cryptocurrency Derivatives was a distribution of securities to Canadian investors without a prospectus, contrary to sections 53(1) and 71(1) of the OSA. The Claim further alleged that the Appellants actively, intentionally, and fraudulently concealed that they were illegally trading in securities. The Claim asserted that because of such illegality, members of the Class are entitled to remedies including rescission or damages, pursuant to section 133 of the OSA or alternatively at common law.
The Respondents sought to certify eight common issues, four pertaining to liability and four pertaining to remedies. Pursuant to section 5(1)(c) of the CPA, the Respondents were required to show that there was “some basis in fact” that the issues raised are common to the Class. To satisfy this requirement, the Respondents tendered documentary evidence, including the contracts that they had entered into with the Appellants, and argued that since these contracts were all the same, the issues raised could be resolved on a common, class-wide basis.
issues:
- Did the motion judge err in finding that the Claim pleaded a reasonable cause of action pursuant to both the OSA and at common law?
- Did the motion judge err in finding that the Respondents had met their burden of establishing that there was “some basis in fact” for the proposed common issues?
holding:
Appeal dismissed.
reasoning:
- No.
The Court held that the motion judge did not err in finding that the Claim pleaded a reasonable cause of action pursuant to both the OSA and at common law. The Court further found that it was not plain and obvious that the statutory cause of action pleaded in the Claim was bound to fail.
The Appellants argued that since no prospectus was filed or delivered to the Class members, they were not entitled to a remedy pursuant so s. 133 of the OSA, as this remedy is only available where a prospectus has been filed but not delivered to a purchaser. The reasoning was that, since they did not file a prospectus, they cannot be found to have committed an offence under section 71(1) of the OSA, as that section specifically references the requirement to deliver “the latest prospectus and any amendment to the prospectus filed” (emphasis added). The availability of section 133(1) of the OSA is dependent upon a breach of section 71(1).
The Court explained that the OSA is remedial legislation that is to be interpreted broadly. Furthermore, the OSA has the purpose of protecting investors from unfair, improper or fraudulent practices, and this is achieved with requirements for timely, accurate and efficient disclosure of information. As such, the Court was of the opinion that the Appellants’ interpretation of sections 71(1) and 133 of the OSA was inconsistent with the OSA’s statutory purposes. The Court held that it was not plain and obvious that the Claim was certain to fail, and the motion judge did not err in finding that the Respondents had properly pleaded a cause of action under section 133.
The Court further found that the Claim properly pleaded a common law cause of action and that there was no clear language in the OSA purporting to abrogate this common law right. The failure to file a prospectus as required by s. 53(1) of the OSA violates a common law right of purchasers to set aside the transaction for illegality.
The Appellants argued that the Claim failed to properly plead this common law cause of action and that this common law right was not available to the Class members. They argued that the definition of “trade” in section 1 of the OSA captures purchases of derivatives as well as sellers. Accordingly, they argued that the Class members were illegally trading in securities in violation of s. 53 and thus had no entitlement to assert the common law cause of action arising from a violation of the provision. The Court found no substance to the Appellants’ arguments.
The Court held that the Claim did properly plead this common law cause of action. The Claim alleged that the Appellants failed to file a prospectus and that the Class was entitled to rescission and damages at common law, which was all that was required in the pleadings. Furthermore, the Court found that it was not plain and obvious that this common law right had been abrogated by the definition of “trade” in the OSA, as there is a presumption that the legislature does not intend to eliminate common law rights in the absence of clear statutory language to that effect.
- No.
The Court was of the opinion that it was clear from the motion judge’s reasons that he understood that the Respondents had the burden to show that there is “some basis in fact” for their position that the proposed issues were common to the Class. The motion judge found that the Respondents had met their burden by providing documentation showing that the contracts for Cryptocurrency Derivatives were between Class members and the Appellants. This was a finding of mixed fact and law that was entitled to deference and is reviewable on a standard of palpable and overriding error.
The Court found that the Appellants had not identified any palpable and overriding error in the motion judge’s finding that there was some basis in fact for the Respondents’ position that the Class members contracted with the Appellants rather than each other and that, accordingly, the remedial issues could be answered on a class-wide basis.
SHORT CIVIL DECISIONS
Chippewas of Saugeen First Nation v South Bruce Peninsula (Town), 2025 ONCA 207
[George, Copeland and Dawe JJ.A.]
Counsel:
N. Frame, M. Gibson, and A. DeParde, for the respondent
J. C. Lisus, Z. Naqi, J. C. Mastrangelo, and A. Winton, for the appellants and the respondents
R. Ogden, S. Figliomeni, and M. M. Salama, for the respondents and the appellants/respondents by way of cross-appeal
M. Beggs, J. Brooks, B. Ennis, and M. Torrie, for the respondents and the respondents/appellants by way of cross-appeal
B. Kain and B. Gray, for the intervener
Keywords: Civil Procedure, Costs, Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2023 ONCA 565, Chippewas of Saugeen First Nation v. the Town of South Bruce Peninsula et al., 2024 ONSC 2827
Li v Barber, 2025 ONCA 216
[Lauwers, Brown and Coroza JJ.A.]
Counsel:
J. Manson and C. Fleury, for the appellants
S. Overwater, for the appellants
R. Mogerman and C. Johnson, for the respondents
Keywords: Civil Procedure, Costs
Roger Vanden Berghe NV v Korhani of Canada Inc., 2025 ONCA 226
[Nordheimer, Coroza and George JJ.A.]
Counsel:
D. Collett, for the appellant
D. Marr, for the respondent
Keywords: Breach of Contract, Debtor-Creditor, Private International Law, Jurisdiction, Civil Procedure, Foreign Judgments, Enforcement, Appeals, Defences, Ineffective Assistance of Counsel, Fresh Evidence, R. v. Palmer, [1980] 1 S.C.R. 759, Sabaratnam v. Yohanathan, 2024 ONCA 845, OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520
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.
