Court of Appeal Summaries (February 3 – February 7)

February 11, 2025
John Polyzogopoulos

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In Vento Motorcycles, Inc. v. Mexico, the Court allowed the appeal and set aside an arbitral award under NAFTA, finding a reasonable apprehension of bias on the part of one of the arbitrators. Following the award that dismissed Vento’s trade complaint against Mexico, it was discovered that there had been undisclosed communications between Mexico’s appointed arbitrator and Mexican officials during the arbitration with a view to having that arbitrator placed on a panel to receive future arbitral appointments. Although the application judge found bias, she declined to set aside the award, citing no real unfairness or practical injustice, particularly given that the other two panelists were not tainted with the same bias. The Court held that the bias of one tribunal member tainted the entire panel, regardless of the impartiality of the others, and emphasized that procedural fairness breaches of this nature cannot be excused for reasons of cost or inconvenience. This decision is to be contrasted with the Court’s decision just a few months ago in Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc., 2024 ONCA 839 (CanLII).

Boyer v. Callidus Capital Corporation was an employment law case where a departed employee was awarded damages for compensation owing to him even though there was no finding of wrongful or constructive dismissal. The Court dismissed the appeal.

In Bank of Montreal v Bronfman, the Court dismissed the appellant’s appeal of the motion judge’s decision to grant BMO summary judgment for amounts due on a credit card and two lines of credit. The limitation period for a bank to sue on such demand loans is from the date of demand, not from when the customer first stopped making monthly payments.

In Unity Health Toronto v. 2442931 Ontario Inc., the Court concluded that the Appellant did not have an automatic right of appeal from an order made under the Bankruptcy and Insolvency Act, and denied leave to appeal, as the proposed appeal did not raise a matter of general importance.

In Windsor Housing Providers Inc. v. Windsor (City), the Court dismissed an appeal from a failed motion to quash a by-law relating to residential rental licensing.

Civil Decisions

Windsor Housing Providers Inc. v. Windsor (City), 2025 ONCA 78

Keywords: Municipal Law, Land Use Regulation, By-Law Regulation, Residential Tenancies, Licensing, Constitutional Law, Ultra Vires, Canadian Charter of Rights and Freedoms, ss. 2, 6, 8, 11, 15, Municipal Act, 2001, S.O. 2001, c. 25 ss. 8(1), 10, 11, Residential Tenancies Act, 2006, S.O. 2006, c. 17, Building Code Act, 1992, S.O. 1992, c. 23, Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231, Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, Equity Waste Management of Canada v. Panorama Investment Group Ltd. (1997), 35 O.R. (3d) 321 (C.A.), 2211266 Ontario Inc. (Gentlemen’s Club) v. Brantford (City), 2013 ONCA 300, United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, Croplife Canada v. Toronto (City) (2005), 75 O.R. (3d) 357 (C.A.), R. v. Pahal, 2023 ONCA 13, London Property Management Association v. City of London, 2011 ONSC 4710

Boyer v. Callidus Capital Corporation, 2025 ONCA 79

Keywords: Contracts, Employment, Wrongful Dismissal, Termination without Cause, Constructive Dismissal, Defences, Just Cause, Breach of Fiduciary Duty, Civil Procedure, Issue Estoppel, Abuse of Process, Employment Standards Act, 2000, S.O. 2000, c. 41 s. 38, Courts of Justice Act, R.S.O. 1990, c. C.43 ss. 137.1(3) and (4), Rules of Civil Procedure, r. 39.03, Boyer v. Callidus Capital Corporation, 2023 ONCA 233, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, Stacey Reginald Ball, Canadian Employment Law (Toronto: Thompson Reuters, 2023)

Vento Motorcycles, Inc. v. Mexico, 2025 ONCA 82

Keywords: International Trade, North American Free Trade Agreement, Civil Procedure, International Commercial Arbitration, Natural Justice, Procedural Fairness, Reasonable Apprehension of Bias, International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5, North American Free Trade Agreement Implementation Act, S.C. 1993, c. 44, Popack v. Lipszyc, 2016 ONCA 135, Wewaykum Indian Band v. Canada, 2003 SCC 45, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc., 2024 ONCA 839, R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256 (E.W.H.C.), Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856, Halliburton Company v. Chubb Bermuda Insurance Ltd., [2020] UKSC 48, Clayton v. Canada (Attorney General), 2024 ONCA 581, Mensula Bancorp Inc. v. Halton Condominium Corporation No. 137, 2022 ONCA 769, Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254, Jacob Securities Inc. v. Typhoon Capital B.V., 2016 ONSC 604, Aroma Franchise Company Inc. et al. v. Aroma Espresso Bar Canada Inc. et al., 2023 ONSC 1827, Rhéaume v. Société d’investissements l’Excellence inc., 2010 QCCA 2269, Kyburn Investments Ltd. v. Beca Corporate Holdings Ltd., [2015] NZCA 290, TCL Air Conditioner (Zhongshan) Co. v. Castel Electronics Pty. Ltd., [2014] FCAFC 83, R. v. Ontario Labour Relations Board; Ex parte Hall (1963), 39 D.L.R. (2d) 113 (Ont. H.C.), Frome United Breweries Co. v. Keepers of the Peace & Justices for County Borough of Bath, [1926] A.C. 586 (H.L.), R. v. B.C. Labour Relations Board, Ex. p. International Union of Mine, Mill & Smelter Workers (1964), 45 D.L.R. (2d) 27 (B.C. C.A.), Haight-Smith v. Kamloops School District No. 34 (1988), 51 D.L.R. (4th) 608 (B.C. C.A.), Sparvier v. Cowesses Indian Band (T.D.), [1993] 3 F.C. 142, In re Medicaments and Related Classes of Goods (No 2), [2001] EWCA Civ 1217, Stubbs v. The Queen, [2018] UKPC 30, Fletcher v. Manitoba Public Insurance Corp., 2004 MBCA 192, Boardwalk Reit LLP v. Edmonton (City), 2008 ABCA 176, ENMAX Energy Corporation v. TransAlta Generation Partnership, 2021 ABCA 366, 01115379 Saskatchewan Ltd. v. Saskatchewan (Financial and Consumer Affairs Authority), 2019 SKCA 31, UNCITRAL Model Law on International Arbitration, Administrative Law (Toronto: Irwin Law, 2001)

Bank of Montreal v Bronfman, 2025 ONCA 85

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Limitation Periods, Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, ss. 4, 5(1)(a)(iv), 5(3), Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, Longo v. MacLaren Art Centre, 2014 ONCA 526, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Bank of Nova Scotia v. Mazin, 2010 ONSC 5827

Unity Health Toronto v. 2442931 Ontario Inc., 2025 ONCA 93

Keywords: Contracts, Bankruptcy and Insolvency, Receivership, Stay of Proceedings, Leave to Appeal, Automatic Right of Appeal, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 193(c), 193(e), Courts of Justice Act, R.S.O. 1990, c. C.43. s. 6(1)(b), Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, Romspen Investment Corporation v. Courtice Auto Wreckers Limited, 2017 ONCA 301, C & K Mortgage Services Inc. v. Camilla Court Homes Inc., 2020 CanLII 100559 (Ont. C.A.), Enroute Imports Inc. (Re), 2016 ONCA 247, Crate Marine Sales Limited (Re), 2016 ONCA 140, Robson Estate v. Robson (2002), 33 C.B.R. (4th) 86 (Ont. C.A.), Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.)

Short Civil Decisions

904950 Ontario Limited v. Dominion of Canada General Insurance, 2025 ONCA 83

Keywords: Contracts, Interpretation, Ambiguity, Contra Proferentem, Insurance, Property, Coverage, Exclusionary Clauses, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Lowe v. Security National Insurance Company, 2006 ABPC 249, Co-operators Life Insurance Co. v. Gibbens, 2009 SCC 59, Canadian Oxford Dictionary, 2nd ed. (Don Mills: Oxford University Press, 2004)

Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP, 2025 ONCA 84

Keywords: Civil Procedure, Appeals, Costs, St. Jean v. Cheung, 2009 ONCA 9, Hunt v. TD Securities Inc. (2003), 66 O.R. (3d) 481 (C.A.)

Little (Nautilus North Strength and Fitness Centre) v. Bramcan Investments Limited, 2025 ONCA 86

Keywords: Torts, Conversion, Damages, Mental Distress, Bankruptcy and Insolvency, Property of the Bankrupt, Choses in Action, Tools of the Trade, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Judgments, Enforcement, Execution, Property, Exemptions, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 67(1)(b), Execution Act, R.S.O. 1990, c. E.24, Rules of Civil Procedure, r. 5.04(2), r. 21.01(3)(b), Meisels v. Lawyers Professional Indemnity Company, 2015 ONCA 406, Stoneman v. Gladman (2005), 16 C.B.R. (5th) 78 (Ont. S.C.)

Ye v. Turton, 2025 ONCA 89

Keywords: Contracts, Real Property, Mortgages, Priority Dispute, Civil Procedure, Applications, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, s. 19(1)(b), Rules of Civil Procedure, r. 14.05, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC Lavalin Group Inc., 2020 ONCA 375, Paulpillai Estate v. Yusuf, 2020 ONCA 655, Heegsma v. Hamilton (City), 2024 ONCA 865, Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 19 O.R. (3d) 97 (C.A.), Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, Beaver v. Hill, 2019 ONCA 520

Chowdhury v. Unity Health Toronto, 2025 ONCA 90

Keywords: Civil Procedure, Appeals, Jurisdiction, Abuse of Process, Rules of Civil Procedure, r. 2.1

Chijindu v. Law Society of Ontario, 2025 ONCA 91

Keywords: Administrative Law, Regulated Professions, Lawyers, Civil Procedure, Striking Pleadings, Abuse of Process, Collateral Attack, Canadian Charter of Rights and Freedoms, ss. 7, 15, and 24(1), R. v. Mills, [1986] 1 S.C.R. 863, Doucet-Boudreau v. Nova Scotia (Department of Education), 2003 SCC 62

CIVIL DECISIONS

Windsor Housing Providers Inc. v. Windsor (City), 2025 ONCA 78

[Gilese, Roberts and Sossin JJ.A.]

Counsel:

S. Pickard and A. Nikolic, for the appellant

S. Strosberg, for the respondent

facts:

The respondent, the City of Windsor, passed Residential Licensing By-Law 14-2023. The residential rental licensing framework would serve as a two-year pilot study to license residential rental housing in Wards 1 and 2. After the two-year study the administration was instructed to report back to Council on the results and Council would decide whether to expand the By-Law to all wards or rescind it.

The appellant, Windsor Housing Providers Inc., is a coalition of landlords of properties in the City of Windsor that incorporated in 2023 to represent housing providers and their interests in the rental housing market in Windsor. The appellant brought an application to quash the By-Law and argued that it was enacted in bad faith, was arbitrary, and was ultra vires ss. 2, 6, 8, 11, and 15 of the Charter.

The application judge disposed of each of the appellant’s arguments and dismissed the application. The appellant repeated the same arguments on appeal, adding that the application judge failed to address certain of the issues raised or give sufficient reasons in dismissing its application.

issues:

Did the application judge err in dismissing the appellant’s application to quash By-Law 14-2023?

holding:

Appeal dismissed.

reasoning:

No. The Court found that the application judge did not make any error.

The Court summarily disposed of the appellant’s argument that the By-Law was arbitrary and discriminatory and was therefore enacted in bad faith. The application judge correctly noted that a generous, deferential standard of review ought to be adopted towards the decisions of municipalities. The Court affirmed the application judge’s finding that the By-Law was passed in good faith for its stated purpose, which was within the respondent’s jurisdiction.

The appellant submitted that the interpretation of the By-Law should be divorced from the respondent’s actions and specified intentions leading up to its enactment. The Court found that this ran counter to the well-established principle that the interpretation of by-laws must be contextual.

Lastly, the Court found that the By-Law was not ultra vires the Charter and was not inconsistent with other legislation. The appellant argued that the By-Law was ultra vires because it was constitutionally infirm and infringed a number of statues. The Court found that the By-Law did not infringe any of the Charter provisions cited. Furthermore, the By-Law did not interfere with the protections under the Municipal Freedom of Information and Protection of Privacy Act or a tenant’s right to sublet premises in accordance with the Residential Tenancies Act, nor did the By-Law encroach upon federal criminal law powers.

Boyer v. Callidus Capital Corporation, 2025 ONCA 79

[Lauwers, Brown and Coroza JJ.A.]

Counsel:

D. Moore, for the appellant

P. H. Griffin and J. N. McDaniel, for the respondent

facts:

The Respondent was an executive with the Appellant corporation, Callidus Capital Corporation. The Respondent acted as the underwriter of the company’s loan business, and he had an oral employment contract. In 2015, the Respondent told the Appellant that he planned on retiring at the end of 2016, but he left in September 2016. The Respondent then sued the Appellant for constructive dismissal. The Respondent’s pleading sought certain employment-related benefits such as payment of accrued and unpaid vacation pay, stock options, and deferred bonus payments. The Appellant defended and asserted a counterclaim for damages for breach of fiduciary duty based on allegations that the Respondent had mismanaged three separate Loans.

Multiple motions were brought in 2022. Originally, a motion judge deferred hearing the Respondent’s motion for summary judgment and dismissed the Respondent’s motions for leave to amend his statement of claim and his Anti-SLAPP motion under section 137.1 of the Courts of Justice Act (“CJA”) to dismiss the Appellant’s counterclaim. The Respondent appealed (the “2023 appeal”) and the court dismissed the Appellant’s counterclaim, granted the Respondent leave to amend his statement of claim and returned the summary judgment motion to the motion judge for determination.

On the motion for summary judgment, the motion judge held that the Appellant had not constructively dismissed the Respondent. The motion judge further awarded the Respondent damages for unused vacation, unpaid and deferred bonus amounts and for the value of lost stock options. Lastly, the motion judge concluded that issue estoppel barred the Appellant from asserting a just cause defence based on the Respondent’s handling of the Loans.

issues:

Did the motion judge err in holding that the Respondent was entitled to the benefits awarded?
Did the motion judge err in holding that issue estoppel barred the determination of allegations of just cause dismissal?
Was the relief granted by the motion judge not appropriate for summary judgment?

holding:

Appeal dismissed.

reasoning:

The Appellant asserted that the motion judge erred in awarding unpaid vacation pay, deferred bonus payments, and stock options. It argued that these claims were not properly pleaded and that the evidence filed on the summary judgment motion did not support the relief granted. The Court found that, by the time the summary judgment motion was argued before the motion judge, the fundamental nature and details of the Respondent’s monetary claims were known to the Appellant. Furthermore, the Court found that the Appellant had ample opportunity to respond to the fundamentals of the claims asserted by the Respondent.

The motion judge gave reasons that dealt extensively with the record before him and he clearly explained how he exercised his powers to weigh evidence, evaluate the credibility of a deponent, and draw reasonable inferences from the evidence. The Appellant did not demonstrate that the motion judge misapprehended the evidence, made a palpable and overriding error of fact or that the relief granted by the motion judge was not available as a matter of law on the findings of fact made. Also, the Court saw no error in how the motion judge exercised his discretion to ensure that any expansion of the record was done in a procedurally fair manner.

In the 2023 appeal, the Court found that the Appellant had failed to plead either the required elements at law or the facts necessary to support its claim of breach of fiduciary duty and that it had acknowledged that the amount claimed was “baseless”. Section 137.1 of the CJA provides that a court shall dismiss a proceeding against a person where the conditions set out in ss. 137.1(3) and (4) are met, and the Court in the 2023 appeal concluded that those conditions had been met and thus dismissed the Appellant’s counterclaim. As a result, the Appellant delivered an Amended Statement of Defence and Counterclaim. In its initial pleading, the Appellant alleged that the Respondent’s misconduct during his employment regarding the Loans amounted to breaches of his fiduciary duty as a senior employee of the company for which it sought to recover damages by way of counterclaim, and the justification for his dismissal for cause. In its amended pleading, the Appellant alleged that the same misconduct regarding the Loans constituted breaches of the Respondent’s employment duties and responsibilities that constituted just cause for termination.

An employer who wishes to terminate a contract of employment without cause must give the employee reasonable notice, or they must instead provide the employee with pay in lieu of reasonable notice. However, no notice is required if the employer has just cause to terminate the contract of employment. Since the motion judge rejected the Respondent’s argument that he had been constructively dismissed, the Appellant’s assertion of a defence of just cause no longer had any relevance to the claims for wrongful or constructive dismissal. The Court noted that in the 2023 appeal the Court dismissed the Appellant’s counterclaim and that the Appellant was now attempting to “repackage” the material facts of its dismissed counterclaim as the basis for an opportunity to litigate its just cause defence in the future. The Court stated that this would constitute an abuse of the decision-making process, and that issue estoppel barred such an attempt. Accordingly, the Court found that the preconditions for issue estoppel were met.

The Court was not persuaded that the motion judge erred in law by dealing with the Respondent’s claims on a summary judgment motion. What remained for the motion judge to determine was an employment contract claim of “modest complexity”, for which the paper record provided an adequate basis for the motion judge to make a determination on the merits. The summary judgment procedure was well-suited to decide the claim.

Vento Motorcycles, Inc. v. Mexico, 2025 ONCA 82

[Huscroft, Trotter and Dawe JJ.A.]

Counsel:

J. Terry and M. Seers, for the appellant

V. DeRose, J. Radford and S. Desjardins, for the respondent

facts:

Vento Motorcycles Inc. (“Vento”) brought a claim against Mexico under Chapter 11 of the North American Free Trade Agreement (“NAFTA”). A tribunal was established to hear the claim.

Three arbitrators were appointed to the Tribunal, each of whom provided declarations of their independence and impartiality. The arbitration took place in November 2019 and the Tribunal issued its award on July 6, 2020. The Tribunal held, unanimously, that Mexico did not breach its obligations under NAFTA and dismissed Vento’s claim.

Subsequently, Vento learned that Mexican officials had been communicating with the Mexican nominee to the Tribunal, Mr. Hugo Perezcano, during the arbitration. Among these officials was Mr. Orlando Pérez Gárate, lead counsel for Mexico on the arbitration and a senior Mexican trade official. At first, he invited Perezcano to apply for Mexico to appoint him to future arbitration panels under different trade agreements. Eventually, Pérez confirmed Perezcano’s appointments.

Vento brought an application to set aside the award. The application judge found that Perezcano’s conduct during the arbitration gave rise to a reasonable apprehension of bias but refused to set aside the Tribunal’s award. In her view, the apprehension of Perezcano’s bias did not undermine the reliability of the Tribunal’s award, nor did it result in real unfairness or practical injustice. The application judge found, further, that the seriousness of the breach and the potential prejudice from rehearing the arbitration also supported the exercise of her discretion not to set aside the award.

Vento appealed. In response, Mexico did not challenge the finding that there was a reasonable apprehension of bias but argued that the application judge properly exercised her discretion to decline to set aside the Tribunal’s award.

issues:

Did the finding of a reasonable apprehension of bias require the application judge to set aside the award?

holding:

Appeal allowed.

reasoning:

The Court reiterated that Mexico did not challenge the application judge’s decision that there was a reasonable apprehension that Perezcano was biased. It accepted that finding and sought to defend the application judge’s decision not to set aside the Tribunal’s award.

The Court noted that Perezcano participated in the hearing, deliberation, and decision-making process. There was no basis to conclude that his participation was somehow harmless, nor could there be, given the private nature of commercial arbitration proceedings. His participation tainted the Tribunal and required that its award be set aside.

The application judge erred in assuming that the impartiality of the other two members of the Tribunal justified the refusal to set aside the Tribunal’s award. The impartiality of the other two members of the Tribunal was irrelevant to the question before the application judge. It was not incumbent on Vento to establish that a majority of the Tribunal was subject to a reasonable apprehension of bias in order to obtain a remedy. The reasonable apprehension that Perezcano was biased sufficed to require that the Tribunal’s award be set aside.

Finally, the Court noted that the application judge appeared to have assumed that the “seriousness of the breach” by Perezcano was “soften[ed]” by several considerations, including the absence of financial compensation following appointment to a roster of arbitrators and the public nature of panel appointments. With respect, these considerations were not relevant at the remedial stage.

The Court held that either there was a reasonable apprehension of bias or there was not. The application judge found that there was – that it was more likely than not that Perezcano would not decide the dispute fairly. He did not owe a lesser obligation of impartiality because he was appointed to the Tribunal by Mexico. Arbitrators are neither representatives of the party who appointed them nor required to protect and promote that party’s interests. Whether appointed independently or by a party to the arbitration, arbitrators are expected to comply with the same high standards of impartiality.

The Court held that the application judge erred in failing to remedy the reasonable apprehension of bias she found concerning Perezcano. This was no minor procedural error. There was no basis to discount the significance of her finding at the remedial stage, or to refuse to remedy it on the basis of cost or inconvenience. The impartiality of the Tribunal was compromised, and its award must be set aside.

Bank of Montreal v Bronfman, 2025 ONCA 85

[Fairburn A.C.J.O., Copeland and Monahan JJ.A.]

Counsel:

N.B., acting in person
A. Fox, for the respondent

facts:

The motion judge granted the respondent bank, BMO, summary judgment on its claim for amounts due on a credit card and two lines of credit. There was no dispute that BMO advanced the funds to the appellant and that she defaulted on her obligations to repay the debts incurred. The primary issue in the litigation was whether BMO’s claim was barred by the Limitations Act, 2002 (the “Act”).
The motion judge found that BMO had commenced its action within two years of having demanded repayment, and that the claim was not statute-barred. The appellant argued that BMO discovered the claim when she failed to make minimum monthly payments, and that this occurred more than two years prior to BMO commencing the proceeding. Accordingly, the proceeding should be dismissed as statute-barred.

issues:

Did the motion judge err in:

Determining that the matter was suitable for summary judgment?
Determining that the credit agreements created demand obligations?
Determining that BMO was statute-barred from commencing the action?

holding:

Appeal dismissed.

reasoning:

No. Notwithstanding that there were certain factual issues in dispute between the parties, the Court agreed with the motion judge that the matter was appropriate for summary judgment because the resolution of those factual issues would not have affected the outcome of the motion.

With respect to the interpretation of credit agreements as demand obligations, the Court noted that Clause 11 specifically provided that BMO may demand repayment in the event that the borrower is in default, but BMO is not required to make such a demand, which may be issued “at any time”. Further, the requirement to repay the entire outstanding amount did not automatically arise in the event of a breach of the agreement. The Court held that Clause 11 drew a clear distinction between a breach of the credit agreements and a demand for repayment, with the former not necessarily leading to the latter.

The Court held that this interpretation of the credit agreements was supported by the various account statements issued by BMO between February and April 2018, which indicated that several monthly payments were “past due” and requesting minimum payments that would bring the accounts back into good standing.

The Court found the motion judge’s interpretation to be consistent with the Divisional Court’s decision in Bank of Nova Scotia v. Mazin, which dealt with the commencement of the limitation period in respect of a debt due on a credit card. The Divisional Court found that the credit card debt became due and the limitation period began to run only when the credit agreement was cancelled and the entire outstanding debt became immediately payable. A mere failure to make a required payment on time did not trigger the running of the limitation period.

Based on Mazin, the Court found that the motion judge did not err in accepting BMO’s position that the credit agreements established “demand obligations” within the meaning of s. 5(3) of the Act. Therefore, the limitation period for each loan account only began to run when BMO issued a demand for repayment of the entire outstanding balance, and not when the appellant began to miss her monthly payments.

The earliest date upon which any of the accounts were cancelled was April 25, 2018, when the credit card was cancelled. BMO commenced the proceeding on April 21, 2020, less than two years later. Therefore, the claim was not statute-barred.

Unity Health Toronto v. 2442931 Ontario Inc., 2025 ONCA 93

[Coroza J.A. (Motions Judge)]

Counsel:

H. Chaiton and M. Gottlieb, for the appellant/moving party Bank of Montreal, as administrative agent

S. E. Batner, A. Kalamut and M. (R.) Cui for the respondent/responding party Unity Health Toronto

facts:

There was a financing of a redevelopment Project for the benefit of the Respondent, Unity Health Toronto. In 2015, there was a public procurement process where the Respondent awarded the Project to 2442931 Ontario Inc. (“ProjectCo”). The Respondent and ProjectCo entered into a Project Agreement where ProjectCo would build, design, and finance the Project for a fixed price. To obtain funding for the Project, ProjectCo and various Lenders entered into a Credit Agreement where the Lenders would advance a loan of around $230 million. The Appellant, BMO, was the administrative agent of the Lenders. Under the Project Agreement and the Credit Agreement, the Respondent agreed to make a payment (the “TIC payment”) to ProjectCo once the Tower Interim Completion (the “TIC”) had been completed. Both agreements also required ProjectCo to obtain and maintain a performance bond and a labor and materials payment bond for the Project. These bonds were obtained from Zurich.

ProjectCo, the Appellant and the Respondent entered into a Lenders’ Direct Agreement (the “LDA”). In the LDA and the Project Agreement there were provisions that outlined that in the event of default, the Respondent had the right to terminate the Project Agreement, which would trigger an obligation on the Respondent to compensate the Lenders. The other option was that the Respondent would have the right to issue a notice of default, allowing the Lenders to exercise their right under the LDA to assume the rights and obligations of ProjectCo under the Project Agreement. In August 2018, ProjectCo was in default under the Project Agreement. The Respondent then exercised its right to provide the Lenders with a notice of default, giving the Lenders an opportunity to assume the obligations of ProjectCo, but the Lenders declined to do so. In December 2018, the Appellant obtained an order putting ProjectCo into receivership. The order stayed any proceedings against ProjectCo, including termination of the Project Agreement by the Respondent. After the receivership order was made, the receiver called upon the performance bond with Zurich. Zurich elected to work at completing the Project and made payments to trades under the bonds to continue construction. In August 2019, Zurich ceased involvement in the Project. In December 2019, the Respondent, with the Lenders’ consent, obtained an order lifting the stay to allow the respondent to complete the Project with a new contractor. The stay was lifted for this purpose without prejudice to the Respondent’s right to exercise its other remedial rights, including its right to terminate the Project Agreement. In April 2020, Zurich commenced an application to rescind the bonds it provided to ProjectCo.

In April 2022, the Appellant brought an application for a declaration that the TIC had been achieved, or an order for the Respondent to complete all the steps to achieve the TIC and pay the Lenders (the “TIC application”). In August 2022, the Appellant brought a motion for an order assigning all of ProjectCo’s rights to enforce and recover the TIC payment to the Appellant or directing the receiver on behalf of ProjectCo to join the TIC application as a co-applicant (the “assignment motion”). The Respondent then brought a motion to dismiss both the Appellant’s TIC application and assignment motion. It also brought a motion to lift the stay of proceedings under the receivership order so that it could terminate the Project Agreement. All the motions were heard together. The motion judge lifted the stay of proceedings to allow the respondent to exercise its right to terminate the Project Agreement (the “Lift Stay Order”). The Appellant sought to appeal the decision of the motion judge, but the Lift Stay Order did not fall under s. 6(1)(b) of the Courts of Justice Act, as that order flowed from the BIA. This motion was for the Court to direct which, if any, of the clauses of s. 193 of the BIA allowed the Appellant to appeal the Lift Stay Order.

issues:

Does the Appellant have an appeal as of right under s. 193(c) of the BIA?
Should the Appellant be granted leave to appeal under s. 193(e) of the BIA?

holding:

Motion dismissed.

reasoning:

The Court explained that the right of appeal under s.193(c) has been narrowly construed by the court to promote efficient and expeditious resolution of bankruptcy proceedings. Section 193(c) does not apply to orders that:

i. Are procedural in nature

ii. Do not bring into play the value of the debtor’s property

iii. Do not result in a loss

The Court held that section 193(c) is not applicable because the Lift Stay Order was procedural in nature, does not directly put any property of the debtor into play, and does not directly result in a loss. The Lift Stay Order was a way to remove a roadblock to permit the Respondent to exercise its rights under the bargain it negotiated with the Lenders. The Court found that the order was procedural in nature because it lifted the stay for the purpose of permitting the Respondent to exercise its rights under the Project Agreement. The order did not terminate the Project Agreement. It only lifted the stay of the receivership order to enable the Respondent to exercise its contractual right to terminate. The Court also found that the Lift Stay Order did not directly bring into play the value of the debtor’s property. The Court also held that the Lift Stay Order did not directly result in an economic loss. The Court was of the opinion that any loss to the Appellant was a result of the parties’ respective contractual rights under the Project Agreement. The Court found that the Lift Stay Order did not determine the Appellant’s right to the TIC payment, but that it simply lifted the stay to allow the parties’ preexisting contractual rights under the Project Agreement to play out. As a result, the Court held that the Appellant did not have a right of appeal, and that it must seek leave to appeal pursuant to s. 193(e) of the BIA.

Granting leave to appeal is discretionary and the test must be exercised in a flexible and contextual way.

Under s. 193(e) of the BIA, the court must look to whether the proposed appeal:

(a) raises an issue that is of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole, and is one that the court should therefore consider and address;

(b) is prima facie meritorious; and

The Court denied leave in this case. The appeal was not prima facie meritorious. It was an appeal from a decision about specific contracts in a unique set of circumstances. The appeal therefore did not raise issues of general importance.

SHORT CIVIL DECISIONS

904950 Ontario Limited v. Dominion of Canada General Insurance, 2025 ONCA 83

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

Counsel:

C. I. R. Morrison, for the appellant
C. T. Blom, for the respondent

Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP, 2025 ONCA 84

[Simmons, Gillese and Coroza JJ.A.]

Counsel:

J. Kaufman and B. Adams, for the appellant
M. Mazzuca and B. Masters, for the respondent

Keywords: Civil Procedure, Appeals, Costs, St. Jean v. Cheung, 2009 ONCA 9, Hunt v. TD Securities Inc. (2003), 66 O.R. (3d) 481 (C.A.)

Little (Nautilus North Strength and Fitness Centre) v. Bramcan Investments Limited, 2025 ONCA 86

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

Counsel:

D. A. Morin and P. Reinitzer, for the appellant
J. L. O’Kane, for the respondents

Ye v. Turton, 2025 ONCA 89

[Fairburn A.C.J.O., Copeland and Monahan JJ.A.]

Counsel:

F. S. Turton, acting in person
S. R. Jackson and A. Johnson, for the responding party/appellant
No one appearing for the respondent, The Bank of Nova Scotia

Chowdhury v. Unity Health Toronto, 2025 ONCA 90

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

Counsel:

MD A. Chowdhury, acting in person
D. Girlando, for the respondent, Unity Health Toronto

Keywords: Civil Procedure, Appeals, Jurisdiction, Abuse of Process, Rules of Civil Procedure, r. 2.1

Chijindu v. Law Society of Ontario, 2025 ONCA 91

[Hourigan, Wilson and Madsen JJ.A.]

Counsel:

C. C. Chijindu, acting in person

R. Cookhorn, for the respondent

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