Court of Appeal Summaries (January 27 – 31)

04 février 2025
John Polyzogopoulos

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In Royal Bank of Canada v Peace Bridge Duty Free Inc., the Court dismissed an appeal involving a dispute over a rent abatement sought by the tenant while their duty-free retail business was shut down as a result of the COVID-19 pandemic. While the lease provided for an obligation to negotiate an abatement (and one was given for the period following the pandemic shutdown, but not during the shutdown), there was no actual requirement to grant one. Accordingly, even though the court below and the Court of Appeal felt an abatement was warranted, there was no basis for the courts to rewrite the lease. The tenant was therefore left without a remedy.

In Pyxis Real Estate Equities Inc. v. Canada (Attorney General), the Court allowed the Attorney General’s appeal and set aside an order granting rectification of corporate resolutions. The case arose from a corporate reorganization intended to facilitate a tax-free capital dividend, but a misinterpretation led to an unexpected tax liability. The respondent sought to rectify the resolutions to reflect what it argued was the intended transaction. The Court confirmed that rectification is only available to help the parties implement the transaction agreed to, not to avoid unintended tax consequences.

In Veeragathy v. Ambalavanar, the Court allowed an appeal from the dismissal of a claim alleging fraud and unjust enrichment in respect of a failed real estate transaction. The Court found the trial judge erred by failing to properly evaluate the unjust enrichment claim (which did not require proof of fraud do succeed) and other errors.

In Sigalas v Sigalas Selas, a husband’s appeal a family law judgment granted following an uncontested trial was dismissed. The wife’s motion to quash the appeal was also dismissed.

1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd. was a dispute over an easement in which the trial judge granted a permanent injunction. The appeals by both sides were dismissed.

In Mundulai v. Law Society of Ontario, a former lawyer’s motion for an extension of time to appeal an order that declined to reinstate his licence to practice law was dismissed as unduly late and lacking merit.

Furney v. Hazan was an appeal of a motion judge’s decision to strike the appellants’ claims without leave to amend. The appeal was granted in part.

Civil Decisions

1711811 Ontario Ltd. v Buckley Insurance Brokers Ltd., 2025 ONCA 56

Keywords: Real Property, Easements, Civil Procedure, Orders, Injunctions, 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, Laurie v. Winch, [1953] 1 S.C.R. 49, MacKenzie v. Matthews (1999), 180 D.L.R. (4th) 674 (Ont. C.A.), Weidelich v. de Koning, 2014 ONCA 736, Fallowfield v. Bourgault, 68 O.R. (3d) 417 (Ont. C.A.), Housen v. Nikolaisen, 2002 SCC 33, Reddick v. Robinson, 2024 ONCA 116, Yekrangian v. Boys, 2021 ONCA 629, Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Herold Estate v. Canada (Attorney General), 2021 ONCA 579, Raimondi v. Ontario Heritage Trust, 2018 ONCA 750, Saelman v. Hill (2004), 20 R.P.R. (4th) 118 (Ont. S.C.), Armak Chemicals Ltd. v. Canadian National Railway Co. (1991), 5 O.R. (3d) 1 (Ont. C.A.), Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 381

Royal Bank of Canada v Peace Bridge Duty Free Inc., 2025 ONCA 54

Keywords: Contracts, Interpretation, Implied Terms, Duty of Honest Performance, Duty of Good Faith, Real Property, Commercial Leases, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended, s. 243(1), Court of Justice Act, R.S.O. 1990, c. C.43, as amended, s. 101, Royal Bank of Canada v. Peace Bridge Duty Free Inc., 2023 ONSC 327, JPM Trade Capital Inc. v. Blanchard, 2024 ONCA 876, Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Weyerhaeuser Company Limited v. Ontario (Attorney General), 2017 ONCA 1007, Resolute FP Canada Inc. v. Ontario (Attorney General), 2019 SCC 60, M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619, Empress Towers Ltd. v. Bank of Nova Scotia (1990), 50 B.C.L.R. (2d) 126 (C.A.), leave to appeal refused, [1990] S.C.C.A. No. 472, Mapleview-Veterans Drive Investments Inc. v. Papa Kerollus VI Inc. (Mr. Sub), 2016 ONCA 93, 1284225 Ontario Limited v. Don Valley Business Park Corporation, 2024 ONCA 247, Bhasin v. Hrynew, 2014 SCC 71, 2161907 Alberta Ltd. v. 11180673 Canada Inc., 2021 ONCA 590, Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7, A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, Lafarge Canada Inc v. Bilozir, 2018 ABCA 416, Potash Corporation of Saskatchewan Inc. v. HB Construction Company Ltd., 2022 NBCA 39

Mundulai v Law Society of Ontario, 2025 ONCA 68

Keywords: Motions, Administrative Law, Leave to Appeal, Rules of Civil Procedure, r. 61.03.1(3)(6), Mundulai v. Law Society of Ontario, 2023 ONLSTA 13, Paulsson v. University of Illinois, 2010 ONCA 21, Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A.), 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Overtveld v. Overtveld, 2021 ONCA 930

Pryxis Real Estate Equities Inc. v Canada (Attorney General), 2025 ONCA 65

Keywords: Taxation, Income Tax, Tax-Free Capital Dividends, Remedies, Rectification, Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, 2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 273, Canada (Attorney General) v. Collins Family Trust, 2022 SCC 26

Veeragathy v Ambalavanar, 2025 ONCA 72

Keywords: Torts, Fraud, Fraudulent Misrepresentation, Inducing Breach of Contract, Breach of Trust, Unjust Enrichment, Remedies, Piercing Corporate Veil, Courts of Justice Act, R.S.O. 1990, c. C. 43., s. 128, FNF Enterprises Inc. v. Wag and Train Inc., 2023 ONCA 92, Mitchell v. Lewis, 2016 ONCA 903, 1417217 Ontario Inc. v. River Trail Estates Inc., 2024 ONCA 491, ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. (1995), 26 O.R. (3d) 481 (C.A.), ADGA Systems International Ltd. v. Valcom Ltd. (1999), 43 O.R. (3d) 101 (C.A.), Kerr v. Baranow, 2011 SCC 10

Sigalas v Sigalas Selas, 2025 ONCA 75

Keywords: Family Law, Spousal Support, Child Support, Section 7 Expenses, Property Division, Equalization of Net Family Property, Parenting, Civil Procedure, Financial Disclosure, Uncontested Trials, Orders, Enforcement, Appeals, Quashing, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(3), Family Law Rules, O. Reg. 114/99 r. 25(19), Cosentino v. Cosentino, 2017 ONCA 593, Dickie v. Dickie (2006), 78 O.R. (3d) 1 (C.A.), per Laskin J.A. (dissenting), rev’d 2007 SCC 8, [2007] 1 S.C.R. 346; Siddiqui v. Anwar, 2018 ONCA 965, A.A. v. Z.G., 2016 ONCA 660, Brophy v. Brophy (2004), 45 R.F.L. (5th) 56 (Ont. C.A.), Gray v. Gray, 2017 ONCA 100, Hilton v. Hilton, 2021 ONCA 29, Kim v. McIntosh, 2023 ONCA 356, Johanson v. Hinde, 2016 ONCA 430

Furney v Hazan, 2025 ONCA 73

Keywords: Contracts, Real Property, Mortgages, Torts, Fraud, Knowing Participation, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Res Judicata, Rules of Civil Procedure, r. 21.01, Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Paton Estate v. Ontario Lottery and Gaming Corp., 2016 ONCA 458, Diamond Contracting Ltd. v. MacDearmid (2006), 214 O.A.C. 92 (C.A.), Canbook Distribution Corp. v. Borins, 45 O.R. (3d) 565 (S.C.), Furney et. al. v. Downie et. al., 2024 ONSC 2632, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354

Short Civil Decisions

Canadian Imperial Bank of Commerce v Lightfoot, 2025 ONCA 55

Keywords: Real Property, Municipal Law, Land Use Planning, Planning Act, R.S.O. 1990, c. P.13, ss. 50, 50.1, Land Titles Act, R.S.O. 1990, c. L.5, ss. 32, 44(1), 45, 87, Gold v. Chronas, 2015 ONCA 900, Lake v. Cambridge (City), 2023 ONSC 5200, Kosicki v. Toronto (City), 2023 ONCA 450, “Land Titles Conversion Qualified” (“LTCQ titles”): Marguerite E. Moore, Title Searching and Conveyancing in Ontario, 7th ed., (Toronto: LexisNexis Canada Inc., 2017)

Abbruzzese v Tucci, 2025 ONCA 70

Keywords: Wills and Estates, Wills, Inter Vivos Transfers, Validity, Undue Influence, Capacity

McDonald v Robb, 2025 ONCA 71

Keywords: Real Property, Adverse Possession, Civil Procedure, Adjournments, Procedural Fairness, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(2)

Northbridge General Insurance Corporation v Jevco Insurance Company, 2025 ONCA 74

Keywords: Contracts, Insurance, Definition of “Accident”, Priorities

Leclerc v Henderson, 2025 ONCA 81

Keywords: Torts, Negligence, Misrepresentation, Fraud, Conspiracy, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Vexatious Litigation, Rules of Civil Procedure, r. 2.1

Royal Bank of Canada v Greb Tele-Data Inc., 2025 ONCA 80

Keywords: Bankruptcy and Insolvency, Debts Surviving Bankruptcy, Embezzlement, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 178(1)(d)

CIVIL DECISIONS

1711811 Ontario Ltd. v Buckley Insurance Brokers Ltd., 2025 ONCA 56

[Sossin, Madsen and Pomerance JJ.A.]

Counsel:

S. J. Erskine, for the appellants (COA-23-CV-1378) and respondents (COA-24-CV-0016), 1711811 Ontario Ltd. and O.M.P., operating as Adline

J. Rosenstein, for the respondents (COA-23-CV-1738) and appellants (COA-24-CV-0016), Buckley Insurance Brokers Ltd., R.B., 1730849 Ontario Limited, and 1979286 Ontario Inc.

J. M. Davison, K.C. and K. McDermott-Berryman, for the respondent, the Corporation of the Town of Newmarket

facts:

This dispute involved an easement that had been the source of ongoing conflict between neighbours in Newmarket. The P appellants owned a mixed commercial residential building which was adjacent to the Buckley Group’s commercial building. The Buckley Group’s property was subject to an easement in favour of the P appellants. The easement consisted of a tunnel allowing the P appellants to access their loading dock. The P appellants argued that their easement rights were subject to substantial interference by the Buckley Group. The Buckley Group denied this on the basis that they had an agreement with the Town of Newmarket that permitted their conduct. The Town of Newmarket was also named as a defendant.

At trial, the judge dismissed the claim against Newmarket and found no substantial interference with the easement but imposed a permanent injunction to prevent further access blockages. The P appellants appealed, arguing the trial judge erred by not finding substantial interference, while the Buckley Group appealed the scope of the injunction.

issues:

P Appeal:

(1) Did the trial judge err in interpreting the nature and extent of the easement?

(2) Is the consent order of Pollak J. dated May 20, 2009, in full force and effect?

(3) Did the trial judge misapply the test for substantial interference with easement rights?

(4) Did the trial judge err in dismissing P appellants’ claim in nuisance against the Town of Newmarket?

(5) Did the trial judge err in finding that the P appellants do not have ancillary rights to parking?

(6) If leave to appeal the costs decision is granted, did the trial judge err in principle in exercising his discretion in denying the P appellants their costs of the action?

Buckley Appeal:

(1) Did the trial judge err by providing inadequate reasons for the parking injunction?

(2) Did the trial judge err by failing to carefully tailor, minimize burdens, and ground the decision in evidence?

holding:

Appeal dismissed.

reasoning:

P Appeal:

(1) No.

The Court rejected the P appellants’ submissions that the trial judge erred in interpreting the scope of the easement and in finding no substantial interference with their rights. The trial judge applied the correct legal framework for interpreting easements, as outlined in Raimondi, by focusing on the text of the easement to determine the agreement’s original intent. The trial judge properly assessed whether there was substantial interference with the P appellants’ reasonable use of the easement, noting that interference must be significant to be actionable. The trial judge concluded that occasional obstructions and modest changes to the tunnel’s dimensions did not meet this threshold. The Court found no error in the trial judge’s reliance on injunctive relief to address any breaches of court orders rather than awarding monetary damages.

(2) No.

The Court rejected the P appellants’ argument that the trial judge erred by failing to consider the continuing relevance of the consent order issued by Pollack J. The Court noted that in a prior decision setting aside an injunction imposed by Himel J., it was determined that the consent order was no longer in effect. The Court held that, in these circumstances, the trial judge was entitled to assess the need for an order independently, without regard to the consent order. As a result, the Court found no error in the trial judge’s approach and dismissed this ground of appeal.

(3) No.

The Court rejected the P appellants’ argument that the trial judge erred in dismissing their action against the Town of Newmarket. The appellants asserted that the dismissal was based on a flawed application of the test for substantial interference under the easement. However, there was no error in the trial judge’s conclusion that Mr. B’s increased use of the tunnel did not constitute substantial interference. Accordingly, the dismissal of the claim against Newmarket was not erroneous.

(4) No.

The Court rejected the P appellants’ argument that the trial judge erred in concluding their easement did not include an ancillary right to parking. The trial judge determined that the easement’s purpose was to allow vehicles access to a loading dock for shipping and delivery, but parking—beyond transitory parking—was not necessary for the enjoyment of the right-of-way. The Court also upheld the trial judge’s finding that the P appellants failed to establish a prescriptive easement for parking.

(5) No.

The Court rejected the P appellants’ argument that the trial judge erred in awarding costs to the Buckley Group and the Town of Newmarket. Although the P appellants claimed they were the successful party due to the injunction, their claims on key issues, including substantial interference and parking rights, which formed the core of the litigation, were dismissed. The trial judge was correct in his application of the principles governing costs, including the need to assess overall success rather than issue-by-issue success. The trial judge’s reduction of the Buckley Group’s costs to reflect the injunction and breaches of court orders was reasonable and within his discretion.

Buckley Group Appeal

(1) No.

The Buckley Group argued that the trial judge failed to adequately justify the permanent parking injunction imposed on them. They contended that the reasons provided for the injunction lacked clarity and did not sufficiently explain its necessity or scope. The Court rejected this argument, finding that the trial judge’s reasoning was clear and sufficiently detailed. The trial judge had consistently stated that parking in the tunnel would block or partially block access to the P appellants’ loading dock, thus constituting a substantial interference with their right-of-way. This determination was central to the decision to impose the injunction.

(2) No.

The Buckley Group further asserted that the injunction was not grounded in evidence and was overly broad, imposing an undue burden on them. They argued that the trial judge failed to carefully tailor the injunction to the specific circumstances of the case. The Court disagreed, holding that the injunction was both appropriately grounded in the evidence and sufficiently tailored to the circumstances. The trial judge had explicitly limited the injunction to parked vehicles that would interfere with access to the P appellants’ loading dock. The injunction excluded transitory parking and only required action if parked vehicles blocked the tunnel when access was needed. The Court found this balance reasonable and proportional.

Royal Bank of Canada v Peace Bridge Duty Free Inc., 2025 ONCA 54

[Lauwers, Paciocco and Harvison Young JJ.A.]

Counsel:

David T. Ullmann and Brendan Jones, for the appellant

P. Shea and S. Ren, for the respondent Buffalo and Fort Erie Public Bridge Authority

C. Delfino, for the applicant Royal Bank of Canada

facts:

This appeal concerned the interpretation of a lease provision between Peace Bridge Duty Free Inc. (“Peace Bridge” or the “Tenant”), the tenant of a duty-free shop on the Ontario side of the Peace Bridge at the border between Fort Erie, Ontario and Buffalo, New York, and the landlord, the Buffalo and Fort Erie Public Bridge Authority (the “Authority” or the “Landlord”). Peace Bridge has operated the retail duty-free store for more than three decades. In normal times, the store was open 24 hours a day, every day, and employed about 90 staff. However, the COVID-19 pandemic caused the closure of the bridge and border to non-essential traffic from March 21, 2020, until November 8, 2021. During this period, Peace Bridge lost virtually all of its customers.

The parties have a lease agreement dated July 28, 2016, which ends in October 2031. Under the terms of the lease, Peace Bridge is required to pay rent, which is comprised of base rent and percentage rent, and to pay any applicable sales taxes, property taxes, operating costs, and utilities. The dispute turns on the interpretation of s. 18.07 of the lease and its application in the context of the store’s closure and reduced business during the COVID-19 pandemic. Section 18.07 of the lease states:

Regulatory Changes – In the event an unanticipated introduction of or a change in any Applicable Laws causes a material adverse effect on the business operations of the Tenant at the Leased Premises, the Landlord agrees to consult with the Tenant to discuss the impact of such introduction of or change in Applicable Laws to the Lease.

Peace Bridge invoked s. 18.07 of the lease in April 2020, within the first month of the bridge closure. In November 2023, the parties reached an agreement in principle about the rent payable during the period from November 2021 until October 31, 2026. However, this agreement in principle was subject to the parties reaching an agreement about the rent payable during the closure period (April 2020 to October 2021). The parties were unable to agree on that rent payable. Peace Bridge sought relief in the form of a court-imposed rent adjustment or abatement.

The motion judge found that: “[t]he Border Restrictions did result in adverse effects on the Tenant’s business, both during the Closure Period and during the Ramp Up Period, that warranted some adjustment to the base rent payable by the Tenant.” However, the motion judge declined to grant Peace Bridge any relief for three main reasons: s. 18.07 did not mandate the judicial imposition of a rent adjustment; the Authority had not breached s. 18.07; and the Authority had not failed in its duty of good faith performance in negotiating.

Peace Bridge appealed.

issues:

Did the motion judge err in:

failing to consider, as part of the factual matrix, discussions between the parties around the time s.18.07 was added to the lease in 2016, including the Landlord’s representations as to how 18.07 was to be applied?
failing to give effect to her finding that s. 18.07 of the lease gives rise to a substantive right or obligation to make an adjustment to base rent?
finding that the Landlord did not breach its duty of honest performance in negotiating a rent adjustment under s. 18.07.

holding:

Appeal dismissed.

reasoning:

The Court found no error in the motion judge’s decision that the proposed evidence was not admissible.

Peace Bridge argued that the motion judge relied on an “outdated technical rule of construction” to exclude the evidence of pre-contractual representations that should dictate how the parties would interpret and apply s. 18.07. The Court reiterated that contractual interpretation is a fact-specific exercise, the purpose of which is to determine the objective intentions of the parties: JPM Trade Capital Inc. v. Blanchard and Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc. Citing Weyerhaeuser Company Limited v. Ontario (Attorney General) and Resolute FP Canada Inc. v. Ontario (Attorney General), the Court outlined the principles guiding the approach to interpreting commercial contracts. The Court noted that, per Sattva, there are limits to the effect that can be given to the factual matrix surrounding the formation of a contract. The motion judge reviewed the disputed evidence, considered it, and found that Peace Bridge was seeking the admission of evidence of subjective intention to colour the interpretation of the lease agreement. She concluded that doing so was problematic and the evidence should be given little or no weight. The Court found that the motion judge conducted a thorough examination of the relevant jurisprudence and the applicable facts to find that the evidence was irrelevant to the resolution of the dispute. The Court also found that the motion judge correctly noted that the admission of the evidence could provide no assistance in determining what Peace Bridge should pay in base rent during the closure period. The Court further noted that Peace Bridge’s argument to admit the proposed evidence would have been of no assistance because the parties had already agreed that s. 18.07 could give rise to a rent adjustment in this case.

The Court found that the motion judge made no error in refusing to determine and impose a base rent adjustment despite recognizing that one was warranted on the facts. The Court noted that the construction of s. 18.07 does not mandate the judicial imposition of a base rent adjustment and imposing one would not be consistent with the applicable law.

The Court confirmed that the test for implying contractual terms is laid out in M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd. Citing Empress Towers Ltd. v. Bank of Nova Scotia (1990), the Court outlined that where parties use an objective standard or formula that adds detail to a provision in an agreement, courts will maintain the commercial bargain that the parties intended, provided that there is an ascertainable meaning. However, the Court emphasized that while “courts will try, wherever possible to give the proper legal effect to any clause that the parties understood and intended was to have legal effect,” this does not mean that courts will impose terms; Empress Towers, at p. 403; Mapleview, at para. 29. The Court agreed with the motion judge’s finding that s. 18.07 was plainly an agreement to agree or an agreement to negotiate on a rent adjustment on the happening of an event that has a material adverse effect on the Tenant’s ability to conduct business. The Court found that although the motion judge recognized that a rent adjustment was warranted on the facts, she did not err in concluding that a specific adjustment should not be judicially imposed. The Court clarified that recognizing a substantive right to a base rent adjustment alone is a necessary, but not a sufficient, condition for the court to impose one on the parties. Further, it was not the court’s function to arbitrarily set rent, and doing so would go far beyond the law on implying contractual terms. The Court concluded that the motion judge arrived at the correct interpretation of s. 18.07 and did not err in refusing to impose rent abatement as a remedy.

The Court found that there was no evidence in the record that supported the conclusion that during negotiations after Peace Bridge invoked s. 18.07, the Authority was dishonest, was not cooperative, or exercised its discretion for an improper purpose. The Court noted that while the Authority was assertive, even “aggressive,” in its own interests, that did not necessarily manifest bad faith because the duty of good faith does not compel a party to give up the legitimate pursuit of its own economic self-interest.

While the parties acknowledged that they were required to fulfill their obligations under s. 18.07 of the lease and negotiate a rent adjustment in good faith, they disagreed as to what constitutes compliance with that obligation. Peace Bridge disagreed with the motion judge’s assessment and asked the Court to reverse it, to reach a factual finding to the contrary, and to judicially impose rent terms. The Court held that it is not its role to retry the case, and more was required before appellate intervention would be warranted. The duty of good faith in contractual performance must be balanced with other bedrock principles of contract law, such as a party’s freedom to act in its own self-interest in accordance with commercial realities. The Court noted that in examining whether a party has breached its duty to exercise contractual discretionary power in good faith, a court must determine whether the party exercised its discretion for an improper purpose. That is, one unconnected to the purpose for which the contract granted the discretion; if there was an improper purpose, the party has not exercised the power in good faith: Wastech, at para. 69. The Court found that the motion judge framed the issue of whether the Authority did, in fact, negotiate in good faith properly. Further, the Court noted that the motion judge’s assessment occupied more than half of the text of her lengthy decision and her assessment was essentially a factual finding that attracted appellate deference. The Court held that the factual findings were well-supported by the motion judge and the record.

Mundulai v Law Society of Ontario, 2025 ONCA 68

[Lauwers J.A. (Motion Judge)]

Counsel:

A. M., acting in person

E. Glasbergen, for the responding party

facts:

The moving party, a lawyer formerly licensed to practice law, sought an extension of time to file a motion for leave to appeal a Divisional Court decision dismissing his application for judicial review of a Law Society Tribunal decision. The Tribunal had refused to reinstate his licence to practice law. The Divisional Court found that the Tribunal acted reasonably in admitting transcripts of an investigator’s interview with the Applicant and concluded that there was sufficient evidentiary support for the Tribunal’s findings.

The Applicant attempted to appeal the Divisional Court’s decision but misfiled a notice of appeal instead of a motion for leave to appeal. After multiple rejections and significant delays, the Applicant ultimately filed the correct motion to extend time more than three months after the original deadline had passed.

The Applicant argued that the Law Society had improperly relied on annotated transcripts prepared by an investigator, which he alleged were inadmissible hearsay and prejudicial. The Law Society opposed the motion, citing the Applicant’s repeated litigation on the same issues as meritless and causing undue delays.

issues:

Should an extension of time to file a motion for leave to appeal be granted?

holding:

Motion dismissed.

reasoning:

No. The Court accepted that the Applicant had intended to appeal promptly but emphasized that the three-month delay in filing the motion was significant and inadequately explained. The Applicant’s claims of a drug reaction and procedural confusion were unsupported by sufficient evidence. He failed to take responsibility for the delay.

While the Law Society did not claim specific prejudice from the delay, it highlighted the importance of finality in litigation, particularly given the Applicant’s history of meritless proceedings.

The Court found no merit in the Applicant’s proposed appeal. The Tribunal and Divisional Court reasonably concluded that the transcripts, including annotations, were admissible as part of the investigator’s evidence. The Applicant had been given ample opportunity to challenge the evidence but had failed to do so during the Tribunal hearing. The Court emphasized that the Applicant’s motion did not engage with the substantive reasons for the denial of his licence reinstatement.

The Court concluded that granting an extension was not warranted, as the proposed appeal lacked merit and the Applicant failed to meet the procedural standards required for advancing his case.

Pryxis Real Estate Equities Inc. v Canada (Attorney General), 2025 ONCA 65

[Nordheimer, Sossin and Copeland JJ.A.]

Counsel:

L. L’Heureux, S. Mackenzie and T. Magill, for the appellant

M. Nixon, for the respondent

facts:

In 2017, the respondent sought a tax-free remuneration strategy to repay his shareholder loan while retaining a balance and restructuring his corporations. His accountants proposed a plan involving tax-free capital dividends which would leave D.J. with a tax-free payment after repaying his loan. However, they failed to review historical tax records, and one of the corporations required a higher dividend of $1.7 million rather than $1.4 million. The CRA found the corporation exceeded its capital dividend account balance and imposed a 60% tax on the excess.

On application, the judge granted rectification of the corporate resolutions, using the test for rectification set out in Canada (Attorney General) v. Fairmont Hotels Inc. The application judge stated that if two interpretations of an agreement are possible, the one of which would give business efficacy to the agreement should be preferred over one that would defeat business efficacy. The application judge preferred the interpretation that the objective of the transactions and the agreement was to pay a tax-free capital dividend to D.J. The AG appealed.

issues:

Did the application judge err by granting rectification of certain corporate resolutions?

holding:

Appeal allowed.

reasoning:

The Court held that the application judge erred in granting rectification, as the corporate resolutions accurately reflected the agreed-upon $1.4 million tax-free dividend. The Court found that rectification is only available when written documents fail to record a prior definite agreement, and it cannot be used to correct a transaction that did not achieve an intended tax outcome. Citing Fairmont Hotels, the Court emphasized that rectification aligns documents with what the parties actually agreed to do, not what they later wished they had done for tax purposes. The Court also distinguished the facts at hand from Hanley Park, which involved unconscionable conduct, since there was no ambiguity in the agreement—only an unintended tax consequence.

The Court relied on Collins Family Trust to reaffirm that rectification cannot be used to avoid unintended tax liabilities, even if the parties had a common intention to achieve a particular fiscal result. The Court noted that the application judge failed to consider Collins Family Trust in his reasoning and improperly concluded that an accountant’s error justified rectification. Since the corporate resolutions correctly documented the intended $1.4 million dividend, rectification was not available.

Veeragathy v Ambalavanar, 2025 ONCA 72

[Roberts, Miller and Pomerance JJ.A.]

Counsel:

C. Handapangoda, for the appellant

E. Sullivan, for the respondents

facts:

The appellant appealed the trial court’s dismissal of his claim for damages against the respondents alleging fraud, fraudulent misrepresentation, and unjust enrichment related to a failed real estate transaction involving the Nallur Kandaswamy Kovil-Canada Inc. Hindu Temple. The dispute centered on a multi-phase plan to acquire and develop property for the Temple, in which the appellant advanced funds. The appellant claimed the transaction was fraudulent and designed to induce him to provide financial support, while the respondents argued that the deal was legitimate and that the failure to close was due to the appellant’s failure to advance the money as required. At trial, the judge found that the real estate transaction was genuine and that there was no intent to defraud the appellant. The court concluded that the appellant had not proven his claims on a balance of probabilities and found no legal basis to hold the respondents personally liable.

issues:

(1) Did the trial judge err in dismissing the claims of fraud, fraudulent misrepresentation and wrongful inducement to breach economic relations?

(2) Did the trial judge err in dismissing the action on the basis that the appellant could not claim a return of the monies that the respondents admitted he advanced?

(3) Did the trial judge err in limiting her consideration about piercing the corporate veil to fraud?

(4) Did the trial judge err in dismissing the appellant’s claim for $7,500 for the mortgage payments made on the S’s behalf?

holding:

Appeal allowed.

reasoning:

(1) No.

The court upheld the trial judge’s dismissal of these claims, finding that it was open to the judge to find that the real estate transaction was legitimate and that the respondents had no fraudulent intent with respect to the purchase of the property, particularly with respect to the agreement of purchase and sale.

(2) Yes.

The trial judge erred by failing to recognize the respondents’ admissions that the appellant had advanced the funds. The respondents admitted in their pleadings that the appellant made the payments but argued they were nonrefundable. They did not plead that the payments were made by the appellant’s corporations or that they were not parties to the transactions. It was only during closing argument that the respondents raised the issue of corporate entities making the payments, without amending their pleadings or withdrawing their prior admissions. This procedural unfairness prevented the appellant from amending his claim to include the necessary parties.

The trial judge also erred in limiting the doctrine of piercing the corporate veil to fraud, ignoring other valid grounds such as unjust enrichment, breach of trust, or misuse of funds. While she found no fraud, she failed to consider whether the respondents misused or misappropriated the funds, particularly regarding expenses. She did not address the appellant’s request for an accounting and tracing of funds paid to the Temple and others, which could have required their return.

(3) Yes.

The trial judge failed to properly analyze the appellant’s unjust enrichment claim, rejecting it solely on the basis that there was no fraud, even though it does not require fraud. Further, the judge failed to consider whether the respondents had unjustly retained his funds after the failed real estate transaction. The Supreme Court in Kerr v. Baranow established that unjust enrichment occurs when a defendant retains a benefit without a juristic reason, causing a corresponding deprivation.

The respondents argued the deposit was non-refundable due to the appellant’s failure to close and that other funds were agreed payments. However, the trial judge had already dismissed their counterclaim and found no evidence that the appellant had caused the deal’s failure. She also overlooked their admission that the $200,000 deposit was part of the agreed-upon down-payment and failed to determine why the transaction had collapsed. Key disputes remained over whether the funds were loans or nonrefundable payments, which required a new trial to assess credibility and determine if the respondents had a valid reason to keep the money.

(4) Yes.

The trial judge erred in dismissing the appellant’s claim for $7,500 in mortgage payments made on behalf of the S’s. She relied on the respondents’ denial and an unspecified “conflict in the evidence” without explaining why she rejected the appellant’s evidence. It was undisputed that Global Investment Holdings Inc. was the S’s mortgagee and that the appellant produced an email confirming the payments. The respondents did not challenge the email’s authenticity. While their pleadings denied the payments, they provided no further details. S himself did not deny the payments but claimed he was unaware of them. Given these facts, the judge’s dismissal of this claim was in error.

Sigalas v Sigalas Selas, 2025 ONCA 75

[Pepall, Miller and Wilson JJ.A.]

Counsel:

A. Rouben, for the appellant/responding party

M. P. Melito and J. McArthur, for the respondent/moving party

facts:

The appellant husband appealed the judgment of the trial judge dated March 12, 2024, that followed an uncontested trial in which he did not participate. The respondent wife brought a motion to quash the husband’s appeal, arguing that since he did not participate in the underlying proceeding, he lacked standing to bring the appeal. The wife also submitted that the husband was in breach of numerous orders, and he should not be permitted to proceed with an appeal.

The parties were married in 2010 and have two young children. They separated in 2022. On February 7, 2023, the parties executed a comprehensive separation agreement, but then the relationship between the parties deteriorated. The wife alleged that the husband’s income was around $300,000, while the husband stated that his income was one-third of that.

The husband failed to provide financial documentation despite the requirements of the Family Law Rules and an order made in December 2022. He was ordered to pay child support on an interim basis commencing January 1, 2023. The husband failed to serve his answer with accompanying financial documentation. On July 4, 2023, at a scheduled court attendance that the husband failed to attend, an order was made requiring him to serve and file his answer within ten business days of the date of the order, failing which the matter could be set down for an uncontested trial. The husband served his pleading after business hours on July 18, 2023, which did not comply with the July 4, 2023, order. It was not properly filed, and according to the wife, it was incomplete. As a result, the wife set the matter down as an uncontested trial which was heard in writing on February 26, 2024. The trial judge released their decision in March and May 2024. The trial judge dealt with child support, the division of household items, the children’s special expenses, spousal support, equalization of net family property, the residence of the children, parenting schedules, decision-making responsibility for the children, and other incidental matters. The husband appealed. The wife moved to quash the appeal.

issues:

Should the motion to quash be granted?
Should the appeal be allowed?

holding:

Motion and appeal dismissed.

reasoning:

The wife submitted that the appeal should be quashed on the basis that the husband was in breach of various orders and his breach of his financial disclosure obligations. The wife also disputed the veracity of the husband’s evidence and argued he did not have standing to seek relief from the Court. The husband asserted that his income has decreased by at least half, and he has had health issues that have impacted his ability to earn an income. He indicated that he had been paying the special expenses of the children and recently paid an outstanding costs order. He submitted that as a self-represented litigant, he believed he served his answer in accordance with the timeline required by the court order. He was unaware of the uncontested trial that resulted in the loss of significant rights as a father.

The Court has the discretion to quash an appeal if there has been non-compliance with court orders. The court may consider various factors when determining whether to quash an appeal, such as the willfulness of the breach, the amount of arrears, the explanation for the breach, and any attempts to correct the breach.

The trial judge’s decision referred to the July 4, 2023 order requiring the husband to file his answer within ten days of the order. On the record before this Court, the wife did not advise the husband that his answer was late and that she would be proceeding with an uncontested trial.

The Court found that the wife did not make full disclosure to the trial judge at the uncontested trial. The trial judge ought to have been informed that the husband had served an answer and financial statement, even if it was incomplete. The trial judge ordered child support based on the husband’s imputed income amount suggested by the wife. The trial judge was not advised that the husband indicated he had been ill and unable to work at full capacity, and as a result, he alleged that he suffered a decline in his ability to earn an income. The trial judge should have been made aware of the husband’s evidence so she could have determined whether it was appropriate to proceed with an uncontested trial. In the Court’s view given these circumstances, this was not an appropriate case to quash the appeal based on the husband’s non-compliance.

The husband failed to attend court after trying to unilaterally cancel the date without notification to the wife. The husband had not made financial disclosure as ordered, filed his answer, nor paid the costs from the earlier motion. The trial judge ordered the husband to serve and file his answer within ten business days, failing which the wife could elect to proceed to an uncontested trial without further notice to the husband. There was no dispute that the husband was aware of the order that required him to serve and file his answer by a deadline and that if he did not comply the case would proceed to trial in his absence. He did not seek to vary the order or to obtain an extension of the deadline from the court.

The Court did not accept the husband’s submission that the trial judge was somehow misled by the wife or that she made her determinations based on inaccurate documentation and evidence. After the husband served a deficient pleading late, he did nothing further. He took no steps to remedy his default or comply with the various court orders. The Court did not agree that the husband was denied procedural fairness because the trial judge elected to proceed to trial without his participation. The July 4, 2023 order was made because of the husband’s failure to comply with his obligations under the Family Law Rules and with previous court orders. The husband was aware of the provision that if he failed to serve and file his answer within the time limit set out in the order, the wife could move to an uncontested trial. The trial judge was entitled to proceed with an uncontested trial given the husband’s conduct and breach of the July 4, 2023 order.

The husband was not in a position to assert that the amounts awarded by the trial judge for support were incorrect when he had failed to make full and complete financial disclosure. Furthermore, the onus rested with him to provide the court with sufficient evidence supporting his position that he was ill, and he failed to do so. It was within the trial judge’s discretion to make the findings that she did based on the evidence and her findings are entitled to deference. The evidence of the wife was incomplete, but that is in part because of the husband’s failure to provide his financial documentation. The Court found there was no error, and the appeal was dismissed.

Furney v Hazan, 2025 ONCA 73

[Hourigan, Favreau and Dawe JJ.A.]

Counsel:

M.F. and A.A.F., acting in person

S. Kesar, for the respondent, Dominion Lending Centres Inc.

J. Wilkes and J. Howell, for the respondent, S.C.

facts:

The appellants brought a claim against eight defendants seeking various forms of monetary relief related to mortgage transactions. Two defendants, the respondents in this action, successfully brought motions to strike the appellants’ claim under r. 21.01 of the Rules of Civil Procedure.

The motion judge struck the appellants’ claim as against the moving parties without leave to amend and ordered they pay substantial indemnity costs to the respondents.

issues:

Did the motion judge err in striking the appellants’ claim against the respondent Dominion without leave to amend?
Did the motion judge err in striking the appellants’ claim against the respondent S.C. without leave to amend?

holding:

Appeal allowed in part.

reasoning:

The Court dealt with the claims against the respondents separately.

The motion judge did not err in striking the appellants’ claims against Dominion without leave to amend. The Court affirmed the motion judge’s finding that the pleadings did not reveal a factual connection between the appellants’ claim and Dominion given that a different company was identified as the lender. Similarly, the Court agreed that leave to amend should have been denied because there was nothing connecting Dominion to the underlying events in the claim and as such, it was doomed to fail. There was no reason to intervene in the motion judge’s decision to impose substantial indemnity costs on the appellants given that they pursued an unmeritorious claim against Dominion.

Yes.

The motion judge did err in striking the appellants’ claim against S.C.

The Court did not agree that the appellants’ pleading against S.C. was an appropriate case for a rule 21 motion. The two allegations in the pleading which led the Court to this conclusion included (i) the allegation that S.C. registered a collateral mortgage to block the appellants’ mortgage financing; and (ii) the allegation that S.C. was involved in removing funds from his trust account that were reserved for closing on the appellants’ behalf. The Court found that these allegations must be accepted as true for purposes of a rule 21 motion, and may well raise a valid defence. However, such a defence would require evidence to be adduced at trial. Accordingly, the case was not appropriate for a rule 21 motion.

The motion judge made two more errors in dismissing the claim against S.C. First, the conclusion that S.C. was automatically insulated from liability because he was acting under instructions from his client was incorrect. A lawyer knowingly participating in fraud is not immune from liability. Second, the motion judge erred in finding that the claim against S.C. was res judicata. The motion judge relied on Furney et al. v. Downie et al. to assert that the appellants were estopped from pursuing any of the defendants including the respondents. The Court found that while the same parties were involved, it was not apparent that the same cause of action was argued.

SHORT CIVIL DECISIONS

Canadian Imperial Bank of Commerce v Lightfoot, 2025 ONCA 55

[Paciocco, Monahan and Wilson JJ.A.]

Counsel:

D.L., acting in person

A. Hora, for the respondent

Abbruzzese v Tucci, 2025 ONCA 70

[Gillese, Roberts and Coroza JJ.A.]

Counsel:

J.M. Friedman and R.L. Jennings, for the appellant

D.N. Delagran and G. Madill, for the respondent

Keywords: Wills and Estates, Wills, Inter Vivos Transfers, Validity, Undue Influence, Capacity

McDonald v Robb, 2025 ONCA 71

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

Counsel:

K. Wise, for the appellant

M. Protich, for the respondent

Keywords: Real Property, Adverse Possession, Civil Procedure, Adjournments, Procedural Fairness, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(2)

Northbridge General Insurance Corporation v Jevco Insurance Company, 2025 ONCA 74

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

Counsel:

L.M. Kiley, for the appellant

A.R. Lim, for the respondent

Keywords: Contracts, Insurance, Definition of “Accident”, Priorities

Leclerc v Henderson, 2025 ONCA 81

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

Counsel:

L.L., acting in person

R.S. Brown, for the respondents

Keywords: Torts, Negligence, Misrepresentation, Fraud, Conspiracy, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Vexatious Litigation, Rules of Civil Procedure, r. 2.1

Royal Bank of Canada v Greb Tele-Data Inc., 2025 ONCA 80

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

Counsel:

D.W. Veinot, for the appellant

M.R. Harris, for the respondent

Keywords: Bankruptcy and Insolvency, Debts Surviving Bankruptcy, Embezzlement, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 178(1)(d)

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.

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