Table of Contents
Civil Decisions
BH Frontier Solutions Inc. v. 11054660 Canada Inc. (Canadian Choice Supply), 2024 ONCA 932
Keywords: Breach of Contract, Torts, Fraudulent Misrepresentation, Fraud, Corporations, Remedies, Piercing the Corporate Veil, Civil Procedure, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), 642947 Ontario Ltd. v. Fleischer at al. (2001), 56 O.R. (3d) 417 (C.A.), Housen v. Nikolaisen, 2002 SCC 33, Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), Mitchell v. Lewis, 2016 ONCA 903, Asco Construction Ltd. v. Epoxy Solutions Inc., 2014 ONCA 535, BH Frontier Solutions v. 11054660 Canada Inc., 2021 ONSC 8224, Pennyfeather v. Timminco Limited, 2017 ONCA 369, Walker v. Ritchie, 2006 SCC 45, British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, Colistro v. Tbaytel, 2019 ONCA 197, McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 2008 ONCA 597
Animal Justice v Ontario (Attorney General), 2024 ONCA 941
Keywords: Food Safety Regulation, Animal Rights, Torts, Trespass, Constitutional Law, Charter Rights, Freedom of Expression, Civil Procedure, Intervenors, Security from Trespass and Protecting Food Safety Act, 2020, S.O. 2020, c. 9, s. 5(6), O. Reg. 701/20, ss. 9, 10, 11, 12, Canadian Charter of Rights and Freedoms, ss. 1, 2(a), 2(b), Environmental Bill of Rights, 1993, S.O. 1993, c. 28, Rules of Civil Procedure, r. 13.02, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Bedford v. Canada (Attorney General), 2009 ONCA 669, Authorson (Litigation Guardian of) v. Canada (Attorney General) (2001), 147 O.A.C. 355 (C.A.), Bhajan v. Ontario (Children’s Lawyer), 2010 ONCA 560, Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, Canada (Attorney General) v. Canadian Doctors for Refugee Care, 2015 FCA 34, Animal Justice et al v. Attorney General of Ontario, 2023 ONSC 3147, Canadian Federation of Students v. Ontario (Colleges and Universities), 2020 ONCA 842, Tadros v. Peel Regional Police Service, 2008 ONCA 775
Davis v. Aviva General Insurance Company, 2024 ONCA 944
Keywords: Contracts, Insurance, Automobile, Interpretatin, Definition of “Accident”, Statutory Accident Benefits, Civil Procedure, Leave to Appeal, Statutory Accident Benefits Schedule – effective September 1, 2010, O. Reg. 34/10, s. 3(1), Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, s. 13, West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910, Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479 (C.A.)
SIF Solar Energy Income & Growth v Aird & Berlis LLP, 2024 ONCA 946
Keywords: Civil Procedure, Stay of Proceedings, Abuse of Process, Joinder, Rules of Civil Procedure, rr. 5.02, 5.03, 5.04, 5.05, 6.01, 21.01, 26.02, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 138, Rules of Professional Conduct, Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.), 2011 ONCA 125, Abarca v. Vargas, 2015 ONCA 4, Davies v. Clarington (Municipality), 2023 ONCA 376, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), Niagara North Condominium Corp. No. 125 v. Waddington, 2007 ONCA 184, Birdseye Security Inc. v. Milosevic, 2020 ONCA 355, Living Water (Pressure Wash Services) Ltd. v. Dyballa, 2011 ONSC 5695, Zhu v. Siew, 2020 ONSC 7045, Dimakos v. Dimakos, 2021 ONSC 3248, Howlett v. Northern Trust Company, 2023 ONSC 4531, Gale v. Rothbart Centre for Pain Care, 2021 ONSC 4535, 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306, Gowling Lafleur Henderson LLP v. Meredith, 2011 ONSC 2686, Hurst v. Hancock, 2020 ONSC 1216, Kelkas v. Kilicaslan et al., 2020 ONSC 3596
ID Inc. v. Toronto Wholesale Produce Association, 2024 ONCA 948
Keywords: Contracts, Duty of Good Faith, Repudiation, Torts, Intentional Interference with Economic Relations, Alleslev-Krofchak v. Valcom Limited, 2010 ONCA 557, leave to appeal refused, [2010] S.C.C.A. No. 403. Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, McClelland & Stewart Ltd. v. Mutual Life, [1981] 2 S.C.R. 6, Toronto (City) v. W.H. Hotel Ltd., [1966] S.C.R. 434, Ventas Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, Bhasin v. Hrynew, 2014 SCC 71, Brown v. Belleville (City), 2013 ONCA 148
Tataryn v. Diamond & Diamond Lawyers LLP, 2025 ONCA 5
Keywords: Contracts, Solicitor and Client, Contingency Fee Agreements, Breach of Fiduciary Duty, Civil Procedure, Class Proceedings, Dismissal for Delay, Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 2, 4.1, 29.1(1), 35, Solicitors Act, R.S.O. 1990, c. S.15, Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A., Smarter and Stronger Justice Act, 2020, S.O. 2020, c. 11, Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36, Rules of Civil Procedure, rr. 1.03, 5, Alberta Rules of Court, Alta Reg 124/2010, r. 4.33, Lubus v. Wayland Group Corp., 2022 ONSC 4999, Bourque v. Insight Productions, 2022 ONSC 174, St. Louis v. Canadian National Railway Company, 2022 ONSC 2556, LeBlanc et al v. Attorney General of Canada, 2022 ONSC 3257, D’Haene v. BMW Canada Inc., 2022 ONSC 5973, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, Point-Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015, Notaries Public of British Columbia v. Law Society of British Columbia, 2017 BCCA 448, Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6, Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, Martin v. Wright Medical Technology Canada Ltd., 2024 ONCA 1, Lamarche v. Pacific Telescope Corp., 2022 ONSC 2553, McRae-Yu v. Profitly Incorporated et. al., 2024 ONSC 5615, Rahmani v. 959630, 2021 ABCA 110, Dufault v. Toronto Dominion Bank, 2021 ONSC 6223, Think Research Corporation v. N & M. Medical Enterprises, 2023 ONSC 6910, R. v. Turpin, [1989] 1 S.C.R. 1296, Saskatchewan River Bungalows Ltd. v. Maritime Life Insurance Co, [1994] 2 S.C.R, Marchischuk v. Dominion Industrial Supplies Ltd., [1991] 2 S.C.R. 61, Kaiman v. Graham, 2009 ONCA 77, 7550111 Canada Inc. v. Charles, 2020 ONCA 386, Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: LexisNexis, 2022), A. Eizenga et al., Class Actions Law and Practice, 2nd. Ed. (Toronto, Canada: LexisNexis, 2024)
Kramer v. Ballantyne-Gaska, 2025 ONCA 1
Keywords: Contracts, Solicitor and Client, Real Property, Agreements of Purchase and Sale of Land, Torts, Solicitor’s Negligence, Fraudulent Misrepresentation, Negligent Misrepresentation, Damages, Civil Procedure, Settlements, Pierringer Agreements, Technical Standards and Safety Act, 2000, S.O. 2000, c.16, CHU de Québec-Université Laval v. Tree of Knowledge International Corp, 2022 ONCA 467, Aecon Buildings v. Brampton (City), 2010 ONCA 773, The Rosseau Group Inc. v. 2528061 Ontario Inc., 2023 ONCA 814, Gendron v. Thompson Fuels, 2017 ONSC 4009, aff’d 2019 ONCA 293, James Street Hardware and Furniture Co. v. Spizziri (1987), 62 O.R. (2d) 385 (C.A.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53
Short Civil Decisions
Rabbani v. Furney, 2024 ONCA 943
Keywords: Civil Procedure, Summary Judgment, Appeals, Costs
Joseph Lebovic Charitable Foundation v. Jewish Foundation of Greater Toronto, 2024 ONCA 933
Keywords: Contracts, Charities, Civil Procedure, Arbitrations, Appeals, Jurisdiction, Arbitration Act, 1991, S.O. 1991, c. 17, s. 17(7) to 17(9), Iris Technologies Inc. v. Rogers Communications Canada Inc., 2022 ONCA 634
Add-Vance Service Centre Ltd. v. Triloq Corp., 2024 ONCA 940
Keywords: Contracts, Real Property, Commercial Leases, Civil Procedure, Default Judgments, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Rules of Civil Procedure, r. 19.08, 10720143 Canada Corp. v. 2698874 Ontario Inc., 2023 ONCA 463, National Bank of Canada v. Royal Bank of Canada (1999), 44 O.R. (3d) 533 (C.A.), Hans v. Mohammadi (2005), 198 O.A.C. 374 (Ont. C.A.), Siivonen v. Halow (2002), 59 O.R. (3d) 211 (Ont. C.A.), Laurentian Bank of Canada v. Goldshmidt, 2013 ONCA 122, Pasquale Doldo (Canadian Construction and Trucking) v. 1497601 Ontario Limited (Weston Gate Gardens), 2014 ONCA 73
Kokic v. Johnson, 2025 ONCA 4
Keywords: Civil Procedure, Vexatious Litigation, Rules of Civil Procedure, r. 2.1.01(1)(b), (6), Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Amato v. Welsh, 2013 ONCA 258, Bell v. Fiska, 2022 ONCA 683
CIVIL DECISIONS
BH Frontier Solutions Inc. v. 11054660 Canada Inc. (Canadian Choice Supply), 2024 ONCA 932
[Sossin, Madsen and Pomerance JJ.A.]
COUNSEL:
R. He, for the appellants, 11054660 Canada Inc. carrying on business as Canadian Choice Supply, 9428364 Canada Corporation, K. S., and R. C. also known as M. C.
D. Milosevic, for the respondent
Keywords: Breach of Contract, Torts, Fraudulent Misrepresentation, Fraud, Corporations, Remedies, Piercing the Corporate Veil, Civil Procedure, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), 642947 Ontario Ltd. v. Fleischer at al. (2001), 56 O.R. (3d) 417 (C.A.), Housen v. Nikolaisen, 2002 SCC 33, Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), Mitchell v. Lewis, 2016 ONCA 903, Asco Construction Ltd. v. Epoxy Solutions Inc., 2014 ONCA 535, BH Frontier Solutions v. 11054660 Canada Inc., 2021 ONSC 8224, Pennyfeather v. Timminco Limited, 2017 ONCA 369, Walker v. Ritchie, 2006 SCC 45, British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, Colistro v. Tbaytel, 2019 ONCA 197, McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 2008 ONCA 597
FACTS:
In September 2020, the respondent, BH Frontier Solutions entered into a three-way agreement with Canadian Choice Supply, as distributor, and Shijazhuang Hongray Group (“Hongray”), as manufacturer, for the purchase of 107,600 boxes of medical gloves. Canadian Choice Supply never delivered a significant amount of the medical gloves contracted for. Dunphy J. granted summary judgment for breach of contract against Canadian Choice Supply in the amount of $509,980 for repayment of all but $7,000 paid by BH Frontier Solutions for the supplies that were contracted but never delivered. The appeal concerned a two-day summary trial before Morgan J. which dealt with BH Frontier Solutions’ separate claims of fraud against the appellants.
The agreement for the medical gloves was negotiated by R. C. and K. S. and signed by K. S. on behalf of Canadian Choice Supply (federally incorporated in Canada) and by J. X. for Hongray (incorporated in China). J. X. was a former defendant, but BH Frontier Solutions discontinued its claim against her because the appellants pursued a lawsuit against her in China.
The agreement required BH Frontier Solutions to provide a 50% deposit to Canadian Choice Supply upon signing and the remaining 50% balance following a successful inspection before the shipment date. As the distributor, Canadian Choice Supply was required to wire the payment to the manufacturer, Hongray. Canadian Choice Supply was also responsible for delivering the medical gloves.
In October 2020, BH Frontier Solutions sent US$1,325,546.25 as payment for the medical gloves, as directed by M. C. Of this amount, several orders amounting to US$504,980 were not delivered to BH Frontier Solutions and no refund was provided. The appellants provided BH Frontier Solutions with a receipt showing the funds they sent to Canadian Choice Supply were sent to Hongray in China. This receipt was fraudulent, and the appellants alleged it was sent to them by J. X. who, unbeknownst to them, created the false receipt. The evidence at trial showed that the appellants transferred large amounts of BH Frontier Solutions’ payments to six different individuals in China whom they did not know, supposedly at J. X’s direction, instead of Hongray.
At trial, BH Frontier Solutions argued that the agreement for the medical gloves was fraudulent to the extent of the undelivered goods, and that the appellants were the agents of that fraud. In response, the appellants argued they sent BH Frontier Solutions’ payment to J. X. who committed fraud against them, and that any recovery must wait until the outcome of their lawsuit against J. X. in China.
The trial judge found the transaction at issue was composed of two distinct frauds: (a) the fraudulent misappropriation in China, and (b) the fraudulent misrepresentation in Canada. The trial judge found the appellants perpetrated the fraudulent misrepresentation in Canada, including the personally named parties as shareholders and directing minds of Canadian Choice Supply, and that BH Frontier Solutions suffered a significant loss as a direct result. He awarded $504,980 in damages (joint and severally amongst the appellants) in addition to the $504,980 in damages that Dunphy J. previously granted, as well as costs of $100,000.
The trial judge also analyzed the fraudulent misappropriation of funds in China, but concluded in that context, the evidence fell slightly short of establishing that K. S. and M. C. were “full, intentional participants in the China-based fraud and misappropriation of funds” for which they blamed J. X. He held this did not negate his finding that they “hid behind their company, [Canadian Choice Supply], and used deceit to manipulate the Plaintiff into entering an Agreement that ultimately caused him financial loss.” On this basis, he found that the appellants engaged in the fraudulent misrepresentation in Canada. The appellants appealed.
ISSUES:
- Did the trial judge apply the wrong test for piercing the corporate veil?
- Did the trial judge err by “artificially splitting” the fraud between the fraud that occurred in Canada and the fraud that occurred in China? Did this create a novel theory of liability not contemplated by the parties?
- Did the trial judge err in awarding costs of $100,000?
HOLDING:
Appeal dismissed.
REASONING:
- No.
The Court disagreed with the appellants’ argument that the trial judge erred in equating the legal test for fraudulent misrepresentation with the test for “conduct akin to fraud” in piercing the corporate veil. The Court did not agree with the appellants’ argument that fraudulent misrepresentation does not include fraudulent intent or malice, while piercing the corporate veil does.
The Court noted that the appellants were correct that the test for fraud and fraudulent misrepresentation differ. The Court did not accept the appellants’ argument, however, that fraudulent misrepresentation would not be considered “conduct akin to fraud.” The Court had confirmed that the scope of “conduct akin to fraud” includes, as Sharpe J., as he then was, set out in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co.: where a corporate entity that is controlled by the individual defendants is being used as a shield for “fraudulent or improper conduct." Further, in subsequent case law, the Court has emphasized that “fraudulent or improper conduct” should not be given a narrow interpretation.
The Court held that in these circumstances, it saw no basis on which fraudulent misrepresentation would not constitute “fraudulent or improper conduct” for the purpose of piercing the corporate veil.
- No.
The Court did not accept the appellants’ argument that the motion judge erred in “splitting” his analysis of the allegations of fraud between the Canada-based fraud and the China-based fraud. In making this argument, the appellants relied on the principle that judges should not decide matters on grounds which were not advanced by the parties.
The Court noted that the principle cited by the appellants is ordinarily invoked when a judge decides a case based on grounds where no evidence was led and where no relevant arguments were made. The Court held that it was not persuaded that the trial judge made findings based on grounds with no evidence or argument. It was open to the trial judge to consider the conduct in Canada and the conduct in China as two distinct aspects of the allegations in the pleadings.
The trial judge concluded that the evidentiary record did not reveal what happened to the respondent’s funds once they were sent to the unknown individuals by the appellant, M. C. By approaching the allegations in this way, the trial judge could consider squarely the appellants’ argument that they may have themselves been victims of a fraudster in China, while nonetheless concluding that there was liability for fraudulent misrepresentation in Canada on the part of the appellants, in light of their representations to the respondent.
- No.
The Court held that the threshold for leave to appeal the trial judge’s award of costs was not met. It did not accept the appellants’ argument that the respondent inflated its costs between the summary judgment motion and the trial, and highlighted that the trial was a 2-day summary trial following the extensive summary judgment motion on similar issues.
The Court found that the trial judge exercised his discretion under s. 131(1) of the Courts of Justice Act to award costs of $100,000, roughly at the mid-point between the partial indemnity amount of costs submitted by the respondent ($82,726.52) and its costs on a substantial indemnity basis ($124,867.43). The trial judge justified this approach on the basis that the respondent was successful in establishing the appellants’ liability for fraudulent misrepresentation, but not in establishing the appellants’ participation in the “egregious fraud” that it had sought to prove.
The Court held that the trial judge’s award of costs was based on factors that were open to him to consider and did not reveal any legal error.
Animal Justice v Ontario (Attorney General), 2024 ONCA 941
[Monahan J.A.]
COUNSEL:
R. Basu, Y. Ranganathan and E. Guilbault, for the appellant/responding party
A. Gonsalves, F. Schumann, K. Mitchell, and A. Pester, for the respondent/responding party Animal Justice
A. Beddoes, for the respondents/responding parties L.J. and J.S.R.
K. Berkeley and K. Marsh, for the proposed intervener Animal Environmental Legal Advocacy
M.P. Tunley, for the proposed intervener Canadian Journalists for Free Expression
A.N. Wood, A. Deshman, and E. Corber, for the proposed intervener Centre for Free Expression
C. Pigott and G. Round, for the proposed intervener Labour Issues Coordinating Committee
N.M. Rouleau and V. Sharma, for the proposed intervener Animal Alliance of Canada
J. Esmonde, D. Bisnar, and Sydney Lang, for the proposed intervener Justicia for Migrant Workers
A. Gupta and D. Rankin, for the proposed intervener Canadian Civil Liberties Association
Keywords: Food Safety Regulation, Animal Rights, Torts, Trespass, Constitutional Law, Charter Rights, Freedom of Expression, Civil Procedure, Intervenors, Security from Trespass and Protecting Food Safety Act, 2020, S.O. 2020, c. 9, s. 5(6), O. Reg. 701/20, ss. 9, 10, 11, 12, Canadian Charter of Rights and Freedoms, ss. 1, 2(a), 2(b), Environmental Bill of Rights, 1993, S.O. 1993, c. 28, Rules of Civil Procedure, r. 13.02, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Bedford v. Canada (Attorney General), 2009 ONCA 669, Authorson (Litigation Guardian of) v. Canada (Attorney General) (2001), 147 O.A.C. 355 (C.A.), Bhajan v. Ontario (Children’s Lawyer), 2010 ONCA 560, Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, Canada (Attorney General) v. Canadian Doctors for Refugee Care, 2015 FCA 34, Animal Justice et al v. Attorney General of Ontario, 2023 ONSC 3147, Canadian Federation of Students v. Ontario (Colleges and Universities), 2020 ONCA 842, Tadros v. Peel Regional Police Service, 2008 ONCA 775
FACTS:
Seven groups sought leave to intervene in Ontario’s appeal of an order that found that ss. 9 and 12(1)(d), among other sections, of Regulation 701/20 (the “Regulation”), enacted under the Security from Trespass and Protecting Food Safety Act (the “Act”), violated s. 2(b) of the Charter (freedom of expression) in a manner not justified under s. 1. Ontario appealed. Seven groups sought intervenor status on the appeal.
ISSUES:
Was it likely that the applicants would be able to make useful contributions to the resolution of the appeal without causing injustice or prejudice to the immediate parties such that they should be granted intervenor status?
HOLDING:
Motions for leave to intervene by Animal Alliance, the Centre for Free Expression, the Labour Issues Coordinating Committee, and the Canadian Civil Liberties Association granted. Motions for leave to intervene by Justicia for Migrant Workers, Canadian Journalists for Free Expression, and Animal Environmental Legal Advocacy dismissed.
REASONING:
Animal Alliance and the Centre for Free Expression
The test for leave to intervene as a friend of the court pursuant to r. 13.02 of the Rules of Civil Procedure is well established. The overarching issue is whether the applicant is likely able to make a useful contribution to the resolution of the appeal without causing injustice or prejudice to the immediate parties. In order for a proposed intervener to satisfy this test, usually at least one of the following three criteria is satisfied:
- the proposed intervener has a real, substantial, and identifiable interest in the subject matter of the proceedings;
- the proposed intervener has an important perspective distinct from the immediate parties; or
- the intervener is a well-recognized group with a special expertise and a broadly identifiable membership base.
The test for granting leave in constitutional cases is more relaxed than in litigation between private parties. This provides the Court with the benefit of various perspectives on the historical and sociological context, as well as policy and other considerations that bear on the validity of legislation. Moreover, because constitutional cases may have a wide impact on the rights of others who are not parties to the litigation, interventions provide such affected individuals and groups with an opportunity to be heard.
Nevertheless, there are necessary limits to the scope of intervention even in constitutional litigation. Such limits may arise where a perspective or interest is adequately represented without the proposed intervener’s involvement, or where the submissions of the proposed intervener are duplicative of the submissions of others. Moreover, the issues in the litigation are defined by the parties and an intervener must take those issues as it finds them and not transform or add to them.
Animal Alliance and CFE
The Court agreed with Chalmers J. in the Court below and held that Animal Alliance had specialized expertise and could make a useful contribution to the issues on appeal. Therefore, the Court granted Animal Alliance’s motion to intervene.
Similarly, the Court agreed with Chalmers J. that the CFE had specialized expertise with respect to the issue of whistleblower rights and held that the CFE would bring a useful and distinct perspective to the issues on appeal. Therefore, the Court granted the CFE’s motion to intervene.
Justicia for Migrant Workers (J4MW)
Chalmers J. denied J4MW’s motion to intervene in the court below for two reasons: (1) there was nothing in the legislation that would prevent a temporary foreign worker who is legally on a farm with the consent of their employer from documenting animal abuse observed during employment; and (2) the proposed intervention by J4MW would expand the issues in the proceeding, since labour and employment laws governing foreign workers were beyond the scope of the application.
Ontario opposed J4MW’s motion, arguing that (1) its intervention would improperly expand the issues on appeal, and (2) that there was no evidence regarding the circumstances of seasonal agricultural workers that would permit the Court to properly adjudicate the issues that J4MW proposed to raise.
The Court dismissed J4MW’s motion, explaining that agricultural workers are hired as employees under a federal government program coordinated with the sponsoring countries, not hired under false pretenses. Therefore, the Court found that it was difficult to see how they would be deemed trespassers by virtue of any false pretense. The Court explained that speculative arguments as to how migrant agricultural workers might nonetheless be caught by the impugned legislation was unsupported by any evidence in the record and that the consideration of such matters would improperly expand the issues in the appeal.
Canadian Civil Liberties Association (CCLA)
The CCLA intended to raise the issue of whether the location of expression could exempt state-imposed limits from Charter scrutiny and argue that there is no place that is categorically excluded from the protective scope of the Charter, and that while the legislation at issue concerned the animal agricultural industry, its potential implications were broader. The Court held that the CCLA could provide a unique perspective on the relevant issues distinct from that of the parties or the other proposed interveners. Moreover, the Court found that the CCLA’s participation would not expand the scope of the appeal. Therefore, the Court granted the CCLA leave to intervene.
Canadian Journalists for Free Expression (CJFE)
The CJFE intended to present submissions on the interpretation of the journalist and whistleblower exceptions to liability under ss. 11 and 12 of the Regulation and argue that these exceptions were underinclusive and vague and hence infringed s. 2(b) of the Charter. The Court held that CJFE’s proposed intervention would focus on ss. 11 and 12 of the Regulation, and that because Ontario had not appealed the application judge’s ruling on the constitutionality of ss. 11 and 12, the submissions of the CJFE would deal with matters that were no longer at issue. Moreover, the Court held that CJFE’s proposed submissions on the whistleblower exemption appeared to be significantly duplicative of arguments that would be advanced by the CFE (which was granted intervenor status). Therefore, the Court dismissed CJFE’s motion for leave to intervene.
Labour Issues Coordinating Committee (LICC)
The LICC argued that the outcome of the appeal would have a significant and direct impact on Ontario farm employers’ interests. The Court was satisfied that the LICC had a real, substantial, and identifiable interest in the proceedings, and that it had an important perspective distinct from the parties or other interveners. Therefore, the Court granted its motion to intervene.
Animal Environmental Legal Advocacy (AEL Advocacy)
AEL Advocacy proposed to make submissions about the impact of the legislation on environmental advocates seeking to promote transparency about environmental harms caused by the animal agricultural industry, through remedies such as the Environmental Bill of Rights. AEL argued that the EBR was a vital tool for environmental advocacy. The Court held that it was apparent that a principal focus of AEL’s proposed submissions would be the impact of the impugned legislation on rights set out in the EBR. The Court held that the interaction between the impugned legislation and the EBR was not addressed in the court below and went beyond the issues raised in the appeal. Moreover, the Court found that there was no evidentiary basis upon which it could properly adjudicate the issues which AEL Advocacy proposed to raise. Therefore, the Court dismissed AEL’s motion for leave to intervene.
Davis v. Aviva General Insurance Company, 2024 ONCA 944
[Sossin, Madsen and Pomerance JJ.A.]
COUNSEL:
G. L. Keating, for the moving party, Aviva General Insurance Company
G. W. Harris, for the responding party, C.D.
D. Lee, for the responding party, the License Appeal Tribunal
Keywords: Contracts, Insurance, Automobile, Interpretatin, Definition of “Accident”, Statutory Accident Benefits, Civil Procedure, Leave to Appeal, Statutory Accident Benefits Schedule – effective September 1, 2010, O. Reg. 34/10, s. 3(1), Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, s. 13, West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910, Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479 (C.A.)
FACTS:
This motion for leave to appeal concerned whether a person who slipped and fell on parking lot ice while reaching out to unlock her car suffered an “accident” under s. 3(1) of the Statutory Accident Benefits Schedule of her motor vehicle insurance policy. The License Appeal Tribunal ruled that C.D.’s slip and fall was not an accident because the ice, not her use and operation of her car, directly caused her injuries. The Divisional Court disagreed and ruled that Davis suffered an “accident”. In its view, C.D.’s use and operation of her car directly caused her injuries because she had her key fob in hand and was extremely close to her car when she fell. Aviva sought leave to appeal from the Divisional Court’s ruling.
ISSUES:
Should leave to appeal be granted?
HOLDING:
Motion dismissed.
REASONING:
No. The Court cited Sault Dock, which sets out the principles governing motions for leave to appeal. This case stated that the Court of Appeal should be satisfied before granting leave that the matter would present an arguable question of law or mixed law and fact.
The Court wished to make clear that its recent comments in its decision in White Whitby did not change the principles set out in Sault Dock, which remained the source for the principles governing motions for leave to appeal from the Divisional Court to the Court of Appeal. Instead, the panel in White Whitby provided a more detailed analysis, which emphasized considering the impact of the decision on the jurisprudence of Ontario in deciding whether to grant leave to appeal. Whether there is any need for a five-judge panel of the Court to revisit the Sault Dock framework is for another day.
In conducting its analysis, the Court rejected the moving party’s argument that the Divisional Court misapplied the causation step in the SABS “accident” test. The Court found that the dispute was largely fact-specific, and no arguable case was made for why the settled test for an “accident” under the SABS should be changed.
SIF Solar Energy Income & Growth v Aird & Berlis LLP, 2024 ONCA 946
[van Rensburg, Sossin and Dawe JJ.A.]
COUNSEL:
B.D. Moldaver, for the appellants
W. Pepall and R. Shoom, for the respondent
Keywords: Civil Procedure, Stay of Proceedings, Abuse of Process, Joinder, Rules of Civil Procedure, rr. 5.02, 5.03, 5.04, 5.05, 6.01, 21.01, 26.02, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 138, Rules of Professional Conduct, Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.), 2011 ONCA 125, Abarca v. Vargas, 2015 ONCA 4, Davies v. Clarington (Municipality), 2023 ONCA 376, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), Niagara North Condominium Corp. No. 125 v. Waddington, 2007 ONCA 184, Birdseye Security Inc. v. Milosevic, 2020 ONCA 355, Living Water (Pressure Wash Services) Ltd. v. Dyballa, 2011 ONSC 5695, Zhu v. Siew, 2020 ONSC 7045, Dimakos v. Dimakos, 2021 ONSC 3248, Howlett v. Northern Trust Company, 2023 ONSC 4531, Gale v. Rothbart Centre for Pain Care, 2021 ONSC 4535, 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306, Gowling Lafleur Henderson LLP v. Meredith, 2011 ONSC 2686, Hurst v. Hancock, 2020 ONSC 1216, Kelkas v. Kilicaslan et al., 2020 ONSC 3596
FACTS:
In August 2019, the appellants commenced an action (the “Main Action”) asserting that the defendants had breached various duties. In December 2019, the appellants commenced the action giving rise to the appeal (the "A&B Action") against the respondent law firm, Aird & Berlis (“A&B”). The appellants alleged that A&B, negligently and in breach of its contractual and fiduciary duties, failed to identify or report the misconduct of the defendants in the Main Action. The appellants sought damages against A&B equivalent to damages sought in the Main Action, as well as restitution and return to the appellants of all profits and other amounts received. The Main Action is referred to in the Fresh as Amended Statement of Claim as the “Companion Action”.
A&B brought a motion for an order striking out and dismissing or staying the A&B Action. The appellants brought a cross-motion for consolidation or trial together of the A&B Action and the Main Action, or alternatively for a temporary stay of the A&B Action until the determination of the Main Action.
The motion judge concluded that the commencement of the A&B Action as a separate action was an abuse of process, and that the appropriate remedy was a permanent stay of the A&B Action and a direction that the appellants must move under r. 26.02 for leave to amend the Main Action if they wished to add A&B as a party and plead the allegations made in the A&B Action. Addressing a potential limitation period argument, the motion judge confirmed that the commencement of the A&B Action on December 18, 2019, tolled the running of the limitation period in respect of the appellants’ claims against A&B. He concluded that the appellants’ cross-motion was moot.
ISSUES:
- Did the motion judge err in concluding that the commencement of the A&B Action was an abuse of process?
- Did the motion judge err in ordering a permanent stay of the A&B Action?
HOLDING:
Appeal allowed, in part.
REASONING:
- Yes.
The Court explained that for there to be an abuse of process, there must be something more than the commencement of a second proceeding in which there are overlapping issues or parties. There must be evidence that there was a “misuse of the court’s procedure” based on the circumstances of the case. In the Court’s view, the motion judge did not consider all the relevant circumstances, many of which differed from those in Maynes v Allen-Vanguard Technologies, cited by the motion judge.
The Court explained that although the A&B Action involved the same factual matrix, events and occurrences that gave rise to the Main Action, the A&B Action was distinguishable from Maynes. First, the A&B Action was not a duplication of the Main Action in the way that occurred in Maynes and in Gale v. Rothbart. The Court noted that in Maynes, it appeared that the plaintiffs’ objective was to add other defendants to the litigation to enhance their ability to recover damages. In Gale, the plaintiffs had commenced a second action, adding eight new defendants to three defendants who had been named in the first action. Here, the Court noted that A&B was not a defendant to the Main Action and was the only defendant to the A&B Action.
Second, the Court held that although the A&B Action pleaded the facts alleged in the Main Action and included claims against other professionals, the claims asserted against A&B were of a different nature. The Court explained that the A&B Action did not allege that A&B “participated in” the wrongdoing alleged in the Main Action, nor did it claim that A&B were jointly and severally liable with the defendants to the Main Action. Rather, the A&B Action was an action for solicitors’ negligence, breach of contract and breach of fiduciary duty. The Court agreed with the appellants that it was not unusual for such claims to be commenced when there was a separate action against the alleged wrongdoers based on the same factual matrix: 1014864 Ontario v. 1721789 Ontario; Gowling v. Meredith; Hurst v. Hancock. The Court explained that where issues overlap and to prevent inconsistent verdicts, procedural orders can be made, including for case management, joint discovery on common issues, and for trial together: Kelkas v. Kilicaslan et al.
The Court found that the motion judge concluded that the A&B Action was brought for “strategic, not substantive reasons”, without properly considering the appellants’ evidence about why they commenced a separate action against A&B instead of seeking to join A&B to the Main Action. In the Court’s view, the motion judge suggested that there would be an implied waiver of privilege once a client sues the lawyer and that, even if solicitor-client privilege were operative, it could not justify another proceeding involving the same series of events and circumstances. The Court disagreed with the motion judge on this point, explaining that the issue was not whether the appellants’ concerns about maintaining solicitor-client privilege outweighed any interest there might be in avoiding a multiplicity of proceedings. Rather, the question was whether the A&B Action was commenced by the appellants to avoid, circumvent, or otherwise abuse the process of the court.
The Court concluded that the commencement of the A&B Action was not abuse of process, noting that there was no evidence that the appellants had started a new action after attempting to join A&B as a defendant to the Main Action; nor did the A&B Action duplicate the Main Action, which was against different defendants.
The Court held that the primary issue before the motion judge was procedural: whether it would be appropriate for the claims asserted in the Main Action and the A&B Action to proceed separately or together. In approaching this issue, the Court explained that the motion judge had to determine how best to ensure that claims asserted in a separate action that relied on and overlapped with claims in another proceeding, could be litigated while respecting the parties’ procedural and substantive rights.
While the Court did not agree that the commencement of the A&B Action deprived A&B of procedural rights that it would have had under r. 26.02, the Court did agree with the motion judge that the A&B Action would preclude A&B from fully and effectively participating in the determination of the issues in the Main Action. The Court accepted that A&B had a real interest in how the Main Action proceeded and ought to be able to fully participate in that action. Furthermore, the Court held that in bringing their cross-motion, the appellants signalled their belief that their concerns about solicitor-client privilege could be managed with appropriate directions within a consolidated proceeding.
The Court stated that although consolidation or an order for trial together of the two proceedings might have been the solution, this relief was not available to the motion judge in this case because the parties to the Main Action were not before the Court. While the appellants brought a cross-motion for consolidation or trial together, it was only served in the A&B Action. Accordingly, the Court held that even if consolidation was a viable option, it could not be ordered without hearing from the defendants to the Main Action.
- Yes.
A permanent stay was inappropriate. Having concluded that the motion judge erred in finding an abuse of process, the Court was reluctant to allow the appeal and permit the A&B Action to proceed with the very likely prospect of a proper motion for consolidation. In the Court’s view, a motion to join A&B as a defendant to the Main Action was appropriate because it would permit the existing defendants to the Main Action to express their views as to whether proceeding against A&B in the Main Action would prejudice their interests. The Court also held that if A&B was added as a defendant, it would provide an opportunity for the parties to obtain necessary directions for the proceeding.
The Court upheld the motion judge’s decision to stay the A&B Action so that the appellants could bring their motion to join their claims against A&B to the Main Action, as well as his determination that the commencement of the A&B Action tolled the limitation period in respect of the appellants’ claims against A&B. However, the Court concluded that it was not necessary or appropriate to impose a permanent stay of the A&B Action. Rather, the Court held that the stay be temporary, with the prospect that it would become permanent if A&B was added as a defendant to the Main Action. The Court explained that if such relief was denied, it would be unjust for the A&B Action to have been permanently stayed. Citing Nuco, the Court noted that a permanent stay would put the defendant in a better position than if the plaintiffs had brought a motion to add it to the existing action.
ID Inc. v. Toronto Wholesale Produce Association, 2024 ONCA 948
[Nordheimer, Copeland and Madsen JJ.A.]
COUNSEL:
J. Zibarras and R. MacGregor, for the appellant
R. Bell and R. Shoom, for the respondent
Keywords: Contracts, Duty of Good Faith, Repudiation, Torts, Intentional Interference with Economic Relations, Alleslev-Krofchak v. Valcom Limited, 2010 ONCA 557, leave to appeal refused, [2010] S.C.C.A. No. 403. Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, McClelland & Stewart Ltd. v. Mutual Life, [1981] 2 S.C.R. 6, Toronto (City) v. W.H. Hotel Ltd., [1966] S.C.R. 434, Ventas Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, Bhasin v. Hrynew, 2014 SCC 71, Brown v. Belleville (City), 2013 ONCA 148
FACTS:
The appellant, ID Inc., wanted to transform a billboard located on property owned by the Province of Ontario which houses the Ontario Food Terminal (“OFT”). The OFT is a food and produce hub covering approximately 40 acres (the “OFT property”). The Ontario Food Terminal Board ("OFTB") manages the OFT property. Wholesalers operate out of the OFT property and they belong to the Toronto Wholesale Produce Association (“TWPA”), an Ontario corporation without share capital. There was a large double-sided billboard sign on the OFT property, visible from the Gardiner Expressway that the TWPA owned. ID Inc. had discussions with the TWPA in mid-2012 with the idea of transforming the billboard from a static sign to a digital sign. StrategyCorp, which is one of the defendants and the respondent on appeal, became involved in these discussions.
ID Inc. and StrategyCorp entered into a Consulting Agreement whereby they agreed on a split of the advertising fees between them to be payable by the TWPA, which agreement was conditional on ID Inc. and TWPA coming to an agreement on the amount of advertising fees being paid.
As matters progressed, it was determined that there was no provincial route to the approval of the digital signs (the route proposed by StrategyCorp), only a municipal one (the route proposed by ID Inc.). By that time, the relationship between ID Inc. and StrategyCorp, and between ID Inc. and the TWPA, had deteriorated. In early 2015, StrategyCorp decided to end the Consulting Agreement with ID Inc. There was an initial agreement dated March 28, 2013, between ID Inc. and the TWPA for the transformation of the single digital sign. That agreement (the “SMA”) required ID Inc. to obtain a permit for the digital sign within 360 days. The SMA expired in accordance with its terms, as the 360-day period to obtain the sign permit had passed without the sign permit being obtained. StrategyCorp then advised ID Inc. by letter dated January 21, 2015, that it considered the Consulting Agreement to be at an end because it was premised on the existence of the SMA and the SMA had expired. ID Inc. did not respond to the letter. StrategyCorp then sent an email to ID Inc. dated January 23, 2015, once again stating its understanding that the SMA had expired. No response was received to that email either.
Eventually the TWPA made an agreement with a competitor of ID Inc., to undertake the transformation of the billboard to a digital sign. The TWPA applied for and received permission from the City of Toronto for the transformation. As a result, ID Inc. commenced an action against both the TWPA and StrategyCorp. At trial, it was successful, in part, in its claim against the TWPA but unsuccessful in its claim against StrategyCorp. In this appeal, ID Inc. appealed the dismissal of its claim against StrategyCorp. ID Inc.’s appeal regarding its claim against TWPA will be the subject of separate reasons for decision.
ISSUES:
- Did trial judge err by dismissing the claim for intentional interference with economic relations?
- Did the trial judge err in finding that the Consulting Agreement was conditional on there being an agreement between ID Inc. and the TWPA?
- Did the trial judge err in finding that StrategyCorp had repudiated the Consulting Agreement and that ID Inc. had accepted that repudiation?
- Did the trial judge err in finding that StrategyCorp did not breach its duty of good faith under the Consulting Agreement?
HOLDING:
Appeal dismissed.
REASONING:
- No.
The Court found that the trial judge set out the correct test for the tort of intentional interference with economic relations. It has three requirements: first, the defendant must have intended to injure the plaintiff’s economic interests; second, the interference must have been by illegal or unlawful means; and third, the plaintiff must have suffered economic harm or loss as a result. The trial judge with reference to the detailed facts she had already set out in her reasons, found that the first aspect of the test had not been met. She found that StrategyCorp did not intend to injure ID Inc. She further found that any interference with ID Inc.’s economic interests was not the result of any unlawful means by StrategyCorp. The Court found no error in the trial judge’s approach and findings.
- No.
ID Inc. also contended that StrategyCorp breached the non-competition clause in the Consulting Agreement. The trial judge concluded that the Consulting Agreement never came into effect by its terms because ID Inc. never entered into an agreement with the TWPA for the provision of advertising fees on any of the signs. The trial judge further found that, even if the Consulting Agreement had come into existence, StrategyCorp had repudiated that agreement and ID Inc. had accepted that repudiation. The trial judge concluded that the Consulting Agreement did not come into effect until an agreement was signed between ID Inc. and the TWPA for the advertising fees. No such agreement was ever signed. The Court held that this interpretation was open to the trial judge. The interpretation of a contract at first instance is subject to the palpable and overriding error test, and the Court found no such error.
- No.
In the alternative to her finding that the Consulting Agreement never came into effect, the trial judge found that StrategyCorp had repudiated the Consulting Agreement by the letter and subsequent email it sent to ID Inc. ID Inc. did not respond to the January 2015 letter or the subsequent email. It did not do so then or at any time in the many months that followed. The Court explained that whether that passage of time amounts to an acceptance of the repudiation in any given case is a question of fact. The trial judge made that factual finding in this case and the Court found no palpable and overriding error in that finding.
- No.
At trial, ID Inc. advanced four bases for asserting that StrategyCorp had breached its duty of good faith with respect to its conduct under the Consulting Agreement. On appeal, ID Inc. raised similar arguments. The Court noted that it is problematic to assert bad faith in the performance of a contract that the trial judge found never came into existence. The trial judge rejected each of the bases that ID Inc. advanced for this allegation of bad faith. She found that StrategyCorp was upfront and told ID Inc. there was a problem with the provincial approval route, and that it was clear and frank when it told ID Inc. that the Consulting Agreement was at an end. The Court held that ID Inc. failed to demonstrate any error of law or palpable and overriding error of fact in the trial judge’s reasons on this issue.
Kramer v. Ballantyne-Gaska, 2025 ONCA 1
[Nordheimer, Copeland and Madsen JJ.A]
COUNSEL:
B. Thind, for the appellants
D. Morin and P. Reinitzer, for the respondents
Keywords: Contracts, Solicitor and Client, Real Property, Agreements of Purchase and Sale of Land, Torts, Solicitor’s Negligence, Fraudulent Misrepresentation, Negligent Misrepresentation, Damages, Civil Procedure, Settlements, Pierringer Agreements, Technical Standards and Safety Act, 2000, S.O. 2000, c.16, CHU de Québec-Université Laval v. Tree of Knowledge International Corp, 2022 ONCA 467, Aecon Buildings v. Brampton (City), 2010 ONCA 773, The Rosseau Group Inc. v. 2528061 Ontario Inc., 2023 ONCA 814, Gendron v. Thompson Fuels, 2017 ONSC 4009, aff’d 2019 ONCA 293, James Street Hardware and Furniture Co. v. Spizziri (1987), 62 O.R. (2d) 385 (C.A.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53
FACTS:
In March 2016, the respondents purchased the Rock Pine Motel and Restaurant in Marten River, Ontario (the “Property”) from the appellants. The respondents purchased the Property with the intent of continuing to run the business as a motel, restaurant, and gas station. The respondents testified that while the purchase was negotiated, they inquired of the vendors about the condition of the tank system for the gas station. The respondents testified that the appellant vendor, Mr. C told them the tank system was in good condition and only required some testing in the spring. The Agreement of Purchase and Sale (“APS”) included a clause in which the appellants agreed to obtain a report from a fuel oil distributor confirming that that the tank system was in safe operating condition and complied with regulatory requirements under the Technical Standards and Safety Act, 2000 (the “TSSA clause” and the “TSSA”).
In June 2016, after the sale closed and the respondents took title to the Property, they learned that in 2014 and 2015, inspections had been conducted of the tank system at the Property on a number of occasions by the TSSA. As a result of those inspections, the TSSA issued compliance orders to the appellants on multiple occasions concerning the tank system. However, the appellants took no steps to have work done on the tank system to bring it into compliance with the orders. After making various inquiries about remediating the tank systems, the respondents concluded that the only remedy was to replace it.
In July 2017, the respondents commenced an action against the appellants for damages for breach of contract and fraudulent and/or negligent misrepresentation. The action also included a claim for negligence against the lawyer who acted for the respondents on the purchase transaction. However, approximately two weeks before the start of the trial, the respondents entered into a Pierringer agreement with their real estate lawyer.
At trial, the trial judge found in favour of the respondents. She found that that the appellants fraudulently misrepresented the condition of the tank system to the respondents. In particular, she found that the appellants wanted to sell the Property without investing further money into it, and that Mr. C made the representations to make the Property more attractive so that the respondents would purchase it. The trial judge also found the appellants liable for breach of contract for failing to provide a report, as required by the APS, that the tank system was in a safe and legal compliant condition.
ISSUES:
- Should the trial judge have granted an adjournment due to the timing of disclosure of the Pierringer agreement?
- Did the trial judge err in her assessment of damages?
- Did the trial judge err in any of the other grounds for appeal?
HOLDING:
Appeal dismissed.
ANALYSIS:
- No
The Court found that the trial judge made no error in relation to the Pierringer agreement.
The appellants argued that the Pierringer agreement was disclosed late so they could not possibly have sought a stay of proceedings for late disclosure and thus were prejudiced. The appellants argued that a new trial should be ordered on that basis. The Court found three problems with this argument. Firstly, the Court noted that the appellants did not seek an adjournment when the agreement was disclosed. Rather, the appellants consented to the trial proceeding as scheduled, as was evidenced by the endorsement of Justice Ellies following the parties’ mid-trial conference. The Court found that the trial judge did not err in failing to grant an adjournment that the appellants did not request.
Secondly, the Court found that at no point in the proceedings did the appellants seek a stay based on the Pierringer agreement. The Court noted that the agreement made at the case management conference on the first day of trial that any issues about the effect of the Pierringer agreement would be addressed at the end of trial is what occurred. The Court also noted that it was clear that the only issue addressed in this regard was the possibility that the respondents would be overcompensated if their settlement with the real estate lawyer exceeded the damages apportioned at trial. On this, the trial judge found that the argument was premature and offered to hear additional submissions after the settlement amounts under the Pierringer agreement were disclosed. The Court found that the appellants had ample time between the time when they received the Pierringer agreement and the end of the three-week trial to request a stay, which they did not do.
Finally, the Court held that because the appellants did not seek a stay at trial, there was an insufficient evidentiary basis on which to conclude that the Pierringer agreement was disclosed late.
- No.
The Court rejected all three of the appellant’s arguments on this issue. Firstly, the appellants argued that the trial judge misapprehended the evidence about the Northern Ontario Compliance Strategy (the “NOCS”), resulting in a higher quantum of damages. The Court found that the trial judge’s factual findings were supported by the record and are owed deference.
Secondly, the appellants argued that the trial judge erred by assessing damages based on the cost to remediate the deficiencies with the tank system, rather than based on the difference between the contract price of the Property and the value of the Property as of the date of closing. The Court found no error in the trial judge’s finding that to put the respondents in the position of having a functioning gas station with the safe and legally compliant fuel tank system – what they had contracted for – the tank system had to be replaced. The Court noted difficulty with the appellant’s submission that the agreed purchase price, which was tainted by fraudulent misrepresentation, would be a reliable measure to assess damages. The Court concluded that although the damages awarded by the trial judge were more than the sale price for the Property in the APS, they were not an amount that could be said to be outside the contemplation of the appellants in the sense described in Fidler.
Finally, the appellants argued that even if the trial judge did not err in basing damages on the cost to remediate the tank system, the respondents received a “windfall” because, by replacing the tank system, they got a brand-new tank system which was more valuable than what the trial judge found the respondents had contracted for. Although the Court agreed with the appellants that betterment was a live issue, the Court noted that it was the appellants’ burden to prove the value of the alleged improvement, on which they led no evidence. The Court found no error in the trial judge’s assessment of this issue.
- No.
The Court also rejected the appellants other two grounds for appeal which challenged the trial judge’s interpretation of the TSSA clause in the APS.
The appellants argued that the trial judge exceeded her jurisdiction by altering the terms of the TSSA clause in the APS. The Court noted that although the appellants framed their argument as jurisdictional, it was really a disagreement with the trial judge’s interpretation of the TSSA clause. The Court found that the trial judge did not alter the TSSA clause; she interpreted it. The trial judge was required to interpret the meaning of the APS, and in particular, the TSSA clause, as part of the breach of contract claim and her interpretation of the contractual terms was entitled to deference. The Court found no palpable and overriding error in the trial judge’s interpretation.
Tataryn v Diamond & Diamond Lawyers LLP, 2025 ONCA 5
[Pepall, Miller and Wilson JJ.A.]
COUNSEL:
P.I. Waldmann and M.J. Armstrong, for the appellants
M.A. Davis, R.D. Davis, and T. Obradovic, for the respondent
Keywords: Contracts, Solicitor and Client, Contingency Fee Agreements, Breach of Fiduciary Duty, Civil Procedure, Class Proceedings, Dismissal for Delay, Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 2, 4.1, 29.1(1), 35, Solicitors Act, R.S.O. 1990, c. S.15, Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A., Smarter and Stronger Justice Act, 2020, S.O. 2020, c. 11, Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36, Rules of Civil Procedure, rr. 1.03, 5, Alberta Rules of Court, Alta Reg 124/2010, r. 4.33, Lubus v. Wayland Group Corp., 2022 ONSC 4999, Bourque v. Insight Productions, 2022 ONSC 174, St. Louis v. Canadian National Railway Company, 2022 ONSC 2556, LeBlanc et al v. Attorney General of Canada, 2022 ONSC 3257, D’Haene v. BMW Canada Inc., 2022 ONSC 5973, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, Point-Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015, Notaries Public of British Columbia v. Law Society of British Columbia, 2017 BCCA 448, Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6, Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, Martin v. Wright Medical Technology Canada Ltd., 2024 ONCA 1, Lamarche v. Pacific Telescope Corp., 2022 ONSC 2553, McRae-Yu v. Profitly Incorporated et. al., 2024 ONSC 5615, Rahmani v. 959630, 2021 ABCA 110, Dufault v. Toronto Dominion Bank, 2021 ONSC 6223, Think Research Corporation v. N & M. Medical Enterprises, 2023 ONSC 6910, R. v. Turpin, [1989] 1 S.C.R. 1296, Saskatchewan River Bungalows Ltd. v. Maritime Life Insurance Co, [1994] 2 S.C.R, Marchischuk v. Dominion Industrial Supplies Ltd., [1991] 2 S.C.R. 61, Kaiman v. Graham, 2009 ONCA 77, 7550111 Canada Inc. v. Charles, 2020 ONCA 386, Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: LexisNexis, 2022), A. Eizenga et al., Class Actions Law and Practice, 2nd. Ed. (Toronto, Canada: LexisNexis, 2024)
FACTS:
The appellants were representative plaintiffs in a class proceeding commenced in 2018 against the respondent law firm. The appellants, who suffered personal injuries in motor vehicle accidents, alleged that the respondent breached fiduciary duties regarding the respondent’s client referral practices and contingency fee agreements, and also breached the provisions of the Solicitors Act and the Consumer Protection Act. The motion judge dismissed the appellants’ action for delay. The representative plaintiffs appealed.
ISSUES:
- Did the motion judge err in concluding that the appellants had failed to comply with s. 29.1(1) of the Class Proceedings Act, 1992?
- Did the motion judge err in finding no waiver of s. 29.1(1) by the respondent?
- Did the motion judge err in declining to make a Phoenix order?
- Did the motion judge err in failing to consider the courts’ inherent jurisdiction over the accounts of lawyers and the absence of any time bar in the Solicitors Act?
- Did the motion judge err in dismissing the action of the appellant who had been added as a party on January 11, 2023.
HOLDING:
Appeal dismissed.
REASONING:
- No.
The Court explained that s. 29.1(1)(c) of the Class Proceedings Act, 1992 (the “CPA”) requires a class action plaintiff to complete one of several steps within one year from the day the proceeding was commenced or face dismissal of the proceeding for delay. The appellants did not dispute that they failed to comply with paragraphs (a), (b) or (d) of s. 29.1(1). Therefore, the Court explained that they could only succeed on appeal as it related to s. 29.1(1) if they could show they complied with paragraph (c). The Court held that the key question was whether the court had established a timetable “for completion of one or more other steps required to advance the proceeding.”
The Court held that the approach in Lubus v Wayland Group Corp., mirrored in McRae-Yu v. Profitly Incorporated et. al. was appropriate on appeal, and that a contextual interpretation was to be given to the interpretation of s. 29.1(1). The Court explained that such an interpretation is not simply a mechanical exercise, and that the legislature clearly enacted this provision with a view to avoiding delay in the pursuit of class actions.
While the CPA does not define timetable or “steps required to advance the proceeding”, the Court stated that it appeared as though s. 29.1(1) requires three things: (i) a timetable; (ii) the timetable must provide either for the service of the representative plaintiff’s motion record in the motion for certification, or for the completion of “one or more other steps”; and (iii) the “one or more other steps” are required to advance the proceeding.
The Court noted that ascertaining whether a timetable has been established will usually be a straightforward exercise. As for the remaining requirements, the Court stated that the CPA provides at s. 35 that the rules of court apply to proceedings under the CPA and reference may be had to the Rules. Rule 1.03 defines timetable as meaning “a schedule for the completion of one or more steps required to advance the proceeding (including delivery of affidavits of documents, examinations under oath, where available, or motions), established by order of the court or by written agreement of the parties that is not contrary to an order.” The Court held that “one or more other steps required to advance the proceeding” should be interpreted to include at least the kinds of motions that the CPA itself treats as valuable and necessary pre-certification steps.
The motion judge determined that s. 29.1(1) assumes that the action has already been commenced and the statement of claim finalized. Under this section, the Court held that the starting point of the one-year deadline is the first anniversary of “the day on which the proceeding was commenced”. Commencement of a proceeding as described in s. 2 of the CPA may be accomplished by the issuance of an originating process. Rule 1.03 of the Rules defines originating process as encompassing numerous types of documents, including a statement of claim, a notice of application, and a notice of action. The Court held that it would therefore be inconsistent to conclude that s. 29.1(1) contemplates both a finalized statement of claim and a statement of claim at its genesis.
The respondent argued that compliance with s. 29.1(1) is not onerous because a representative plaintiff only needs to file the certification motion record within the deadline and thereby comply with paragraph (a). Paragraph (a) requires a “final and complete motion record in the motion for certification”. The motion record consists of the affidavits setting out the factual background supporting the certification criteria, a crucial part of which is often expert evidence regarding the class definition and size and a formula for damage calculation: Michael A. Eizenga et al., Class Actions Law and Practice, 2nd. Ed. (Toronto, Canada: LexisNexis, 2024), at §§ 5.46-47 and 5.52. This of course does not include any cross-examinations that may be relied upon in support of the certification motion. These steps take time, particularly in complex actions, and preparation of “a final and complete motion record” that fairly establishes the representative plaintiff’s claim may be seriously compromised by the need to avoid dismissal within the one-year time frame of s. 29.1(1). The Court did not view paragraph (a) as a simple means of achieving compliance with the statutory time requirement.
Applying the findings it made with respect to the requirements of s. 29.1 of the CPA, the Court made the following determinations. First, the Court held that there is no judicial discretion engaged in the one-year time parameter. Second, determining whether a timetable has been established will usually be a straightforward finding. Third, in addressing whether a timetable for completion of one or more other steps required to advance the proceeding has been established, a contextual approach is appropriate. When determining whether the step is required to advance the proceeding, the case management judge should consider the totality of the proceeding. Therefore, the Court held that the one year is the triggering event, but motion judges have some flexibility in determining whether the remaining requirements are satisfied.
The appellants submitted that there were three required steps that were timetabled and that therefore qualified to meet the s. 29.1(1) imperatives: (i) the motion judge’s May 8, 2020 direction that the Tataryn appellant deliver a statement of claim within 45 days; (ii) the motion judge’s direction on the same day that the Tataryn appellant arrange a further case conference for further directions after delivery of the statement of claim; and (iii) a July 10, 2020 case conference where dates were set for the exchange of materials and the hearing of the respondent’s motion to strike.
The Court held that neither of the first two steps identified by the appellants qualified as a timetable or a step required to advance the proceeding. The Court noted that treating these inconsequential acts as meeting the parameters of s. 29.1(1) would in essence neuter the provision.
The Court agreed with the motion judge’s description of the proceedings as “a long and winding road”. Moreover, the Court held that while a motion to strike could potentially be required to advance the proceeding, the Tataryn appellant’s own conduct prevented the motion to strike timetabled at the July 10, 2020 case conference from advancing the proceeding. Two years after that motion was decided, the appellants were still contesting a motion seeking their compliance with the court’s first decision and were ultimately unsuccessful. The Court held that it was appropriate for the motion judge to find as he did, and that, applying a contextual approach, it could not be said that the appellants had shown that a timetable for completion of one or more other steps required to advance the proceeding had been established.
Ultimately, the certification motion record was delivered in June 2023, 20 months after the s. 29.1(1) deadline of October 1, 2021. Though not germane to the one-year calculation itself, this was an example of the mischief that s. 29.1(1) was designed to address. The Court therefore dismissed this ground of appeal.
2, 3 and 4. No.
With respect to the second issue, the motion judge concluded that the conduct of the respondent did not amount to waiver. The Court agreed, and therefore found it unnecessary to decide whether s. 29.1(1) precluded waiver because the provision engaged a substantial public interest.
With respect to the third issue, the motion judge determined that a Phoenix order (leave to issue a new action) would be directly contrary to the policy goal underlying s. 29.1(1), stating that “section 29.1 would not address the problem it set out to address if a plaintiff can bring an action, delay it until it gets dismissed under s. 29.1, and then just start a new action as if nothing had happened”. The Court agreed, and noted that the motion judge went on to note that he made no comment on whether some other putative class member would be in a position to start a similar case in the future as described in Bourque, as that was a hypothetical question. The Court noted that while refiling the identical action with a different plaintiff may not circumvent any procedural requirements, arguably it would circumvent the spirit of s. 29.1(1). In any event, the Court held that the motion judge did not err in declining to grant a Phoenix order.
Regarding the fourth issue, the Court held that the appellants failed to meet their onus to satisfy the Court that their new inherent jurisdiction argument ought to be permitted. The Court noted that the evidentiary record did not allow for effective consideration of this issue, quite apart from the obvious unfairness associated with raising this issue at this late stage in the proceeding. Therefore, the Court dismissed this ground of appeal.
5. No.
On January 11, 2023, the motion judge granted leave to issue a new statement of claim and to add an additional plaintiff. On appeal, the appellant complained that the new claim ought not to have been dismissed given that he delivered a completed certification motion record within five months of leave being granted to add him as a party. The appellants therefore argued that the new claim met the s. 29.1(1) one-year requirement, and the added plaintiff’s proposed class action ought not to have been dismissed. The Court rejected this argument for two reasons. First, the Court held that section 29.1(1) requires the Court to dismiss a “proceeding” unless the plaintiff takes a required step “by the first anniversary of the day on which the proceeding was commenced”. Further, the Court stated that r. 5 of the Rules governs joinder of parties and speaks of “in the same proceeding” and that adding a party does not alter the characterization of a proceeding. Accordingly, the Court held that adding the new appellant as a party did not alter the proceeding to permit escape from the ambit of s. 29.1(1).
Second, as argued by the respondent, the Court held that nothing in the CPA suggested that adding a plaintiff “resets the clock” for that new plaintiff. The Court explained that reading such a provision into the CPA could open the statute to the abuse of regularly adding plaintiffs which would obviate the clear legislative intent reflected in s. 29.1(1).
Short Civil Decisions
Rabbani v. Furney, 2024 ONCA 943
[George, Favreau and Gomery JJ.A.]
COUNSEL:
A.A.F.F. and M.F., acting in person
L. S. Vittas, for the respondent, M.A.R.
No one appearing for H.H.
Keywords: Civil Procedure, Summary Judgment, Appeals, Costs
Joseph Lebovic Charitable Foundation v. Jewish Foundation of Greater Toronto, 2024 ONCA 933
[Favreau, Monahan and Gomery JJ.A.]
COUNSEL:
M. P. Gottlieb, A. J. Winton and X.L. (Crystal) Li, for the moving parties
K. R. Chaytor and L. Boritz, for the responding parties
Keywords: Contracts, Charities, Civil Procedure, Arbitrations, Appeals, Jurisdiction, Arbitration Act, 1991, S.O. 1991, c. 17, s. 17(7) to 17(9), Iris Technologies Inc. v. Rogers Communications Canada Inc., 2022 ONCA 634
Add-Vance Service Centre Ltd. v. Triloq Corp., 2024 ONCA 940
[Sossin, Madsen and Pomerance JJ.A.]
COUNSEL:
D. Shuhaibar, for the moving parties/respondents, A.A. & Add-Vance Service Centre Ltd.
R. P. Bowles, for the responding party/appellant, E.B.
Keywords: Contracts, Real Property, Commercial Leases, Civil Procedure, Default Judgments, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Rules of Civil Procedure, r. 19.08, 10720143 Canada Corp. v. 2698874 Ontario Inc., 2023 ONCA 463, National Bank of Canada v. Royal Bank of Canada (1999), 44 O.R. (3d) 533 (C.A.), Hans v. Mohammadi (2005), 198 O.A.C. 374 (Ont. C.A.), Siivonen v. Halow (2002), 59 O.R. (3d) 211 (Ont. C.A.), Laurentian Bank of Canada v. Goldshmidt, 2013 ONCA 122, Pasquale Doldo (Canadian Construction and Trucking) v. 1497601 Ontario Limited (Weston Gate Gardens), 2014 ONCA 73
Kokic v. Johnson, 2025 ONCA 4
[George, Favreau and Gomery JJ.A.]
COUNSEL:
E. K., acting in person
M. R. Kestenberg, for the respondent
Keywords: Civil Procedure, Vexatious Litigation, Rules of Civil Procedure, r. 2.1.01(1)(b), (6), Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Amato v. Welsh, 2013 ONCA 258, Bell v. Fiska, 2022 ONCA 683
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