Court of Appeal Summaries (January 13 –17, 2025)

January 24, 2025
John Polyzogopoulos

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Civil Decisions

2089322 Ontario Corporation v. Des Roches, 2025 ONCA 17

Keywords: Contracts, Without Prejudice, Business Law, Joint Venture Agreement, Aboriginal Law, Self-Governance, Aboriginal Business, Indian Act, RSC 1985, c. I-5, s. 28, Rules of Civil Procedure, r. 54.02, 2089322 Ontario Corporation v. Des Roches, 2019 ONCA 355, R. v. S.A B., 2003 SCC 60, Mouvement Laïque Québécois v Saguenay (City), 2015 SCC 16, Petz v Duguay, 2018 ABCA 402, 7550111 Canada Inc. v. Charles, 2020 ONCA 386, Kaiman v. Graham, 2009 ONCA 77

De Longte v. De Longte, 2025 ONCA 30

Keywords: Family Law, Divorce, Child Support Civil Procedure, Appeals, Stay Pending Appeal, Perfection, Extension of Time, Facta, Rules of Civil Procedure, rr. 63.01(1), 63.02(1), Family Law Rules, O. Reg. 114/99, r. 25(19), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Carvalho Estate v. Verma, 2024 ONCA 222, R. v. Canadian Broadcasting Corp., 2018 SCC 5, Barendregt v. Grebliunas, 2022 SCC 22, Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 85, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Battle Creek Toasted Corn Flake Co. v. Kellogg Toasted Corn Flake Co. (1923), 55 O.L.R. 127 (C.A.), Ducharme v. Hudson, 2021 ONCA 151

ID Inc. v. Toronto Wholesale Produce Association, 2025 ONCA 22

Keywords: Contracts, Interpretation, Waiver, Estoppel, Entire Agreement Clauses, Damages, Interest, Civil Procedure, Pleadings, Courts of Justice Act, R.S.O. 1990, c. C.42, ss. 128(4)(g), 129(5), and 130, Rules of Civil Procedure, r. 25.06(9), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Paletta International Corp. v. Canada Life Mortgage Services Ltd. (2003), 170 O.A.C. 5 (C.A.), 2249778 Ontario Inc. v. Smith (c.o.b. Fratburger),2014 ONCA 788, U.S. Steel Canada Inc. et al. v. The United Steel Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union et al., 2022 ONSC 6993, Arnold v. Britton, [2015] UKSC 36, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2021 ONCA 907, Grasshopper Solar Corporation v. Independent Electricity System Operator, 2020 ONCA 499, Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2018 ONCA 253, Maxam Opportunities Fund Limited Partnership v. 729171 Alberta Inc., 2016 BCCA 53

Wiener Städtische Versicherung AG Vienna Insurance Group v. Infrassure Ltd., 2025 ONCA 20

Keywords: Contracts, Insurance, Interpretation, Commercial General Liability, Business Interruption, Reinsurance, Retrocession Agreements, “Follow Settlements” Clauses, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, Corner Brook (City) v. Bailey, 2021 SCC 29, Weyerhaeuser Company Limited v. Ontario (Attorney General), 2017 ONCA 1007, Dumbrell v. The Regional Group of Companies Inc., 2007 ONCA 59, Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation, 2021 ONCA 592, Insurance Co of Africa v. Scor (UK) Reinsurance Co Ltd, [1985] 1 Lloyd’s Rep. 312 (C. A. (Civ. Div.)), Gan Insurance Co Ltd v. Tai Ping Insurance Co Ltd. (No. 2), [2001] EWCA Civ 1047, Wasa International Insurance Co. Ltd. v. Lexington Insurance Co., [2009] UKHL 40, Hill v. Mercantile and General Reinsurance Co. Plc., [1996] 1 WLR 1239 (U.K. H. L.), Assicurazioni Generali SpA v. CGU International Insurance plc, [2004] EWCA Civ 429, English and American Insurance Co Ltd. v. Axa Re SA, [2007] Lloyd’s Rep. I.R. 359, Charman v. Guardian Royal Exchange Assurance plc, [1992] 2 Lloyd’s Rep. 607, Tokio Marine Europe Insurance Ltd. v. Novae Corporate Underwriting Ltd., [2013] EWHC 3362 (Comm.), Swiss Reinsurance Company v. Camarin Limited, 2015 BCCA 466, Blacks Law Dictionary, 12^th edition (2024), Fridman et al., The Law of Contract in Canada, 7^th ed. (Toronto: Thomson Reuters, 2024), Edelman and Burns, The Law of Reinsurance, 3^rd edition (2021), Lynch & Simon Milnes, eds, MacGillivray on Insurance Law, 15^th ed (London, UK: Sweet & Maxwell, 2022), Colinvaux’s Law of Insurance, 13th ed. (London: Sweet & Maxwell, 2022), 2nd Cum. Supp. (May 2024)

Kasandra v. Sartarelli, 2025 ONCA 27

Keywords: Wills and Estates, Estate Administration, Estate Trustees, Removal, Debts, Abatement, Radford v. Radford Estate (2008), 43 E.T.R. (3d) 74 (Ont. S.C.), Crawford v. Jardine (1997), 20 E.T.R. (2d) 182 (Ont. Gen. Div.), St. Joseph’s Health Centre v. Dzwiekowski, 2007 CanLII 51347 (Ont. S.C.), Chambers Estate v. Chambers, 2013 ONCA 511, Di Santo v. Di Santo Estate, 2023 ONCA 464, Popack v. Lipszyc, 2016 ONCA 135

Short Civil Decisions

Rahman v. Elia Associates, 2025 ONCA 16

Keywords: Contracts, Solicitor and Client, Torts, Professional Negligence, Lawyers, Perjury, Defences, Absolute Privilege, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Summary Judgment, Rules of Civil Procedure, r. 21, Salasel v. Cuthbertson, 2015 ONCA 115, Kokic v. Johnson, 2025 ONCA 4, at para. 7, Admassu v. Macri, 2010 ONCA 99, Shuman v. Ontario New Home Warranty Program, 2001 CarswellOnt 3666 (S.C.), Yan v. Hutchinson, 2023 ONCA 97

Tewari v. Aziz, 2025 ONCA 29

Keywords: Contracts, Employment, Wrongful Dismissal, Torts, Conspiracy, Civil Procedure, Security for Costs, Strike Pleadings, Appeals, Abandonment, Rules of Civil Procedure, rr. 21, 61.14(3), 61.14(4)

Talwar v. Grand River Hospital, 2025 ONCA 35

Keywords: Contracts, Employment, Administrative Law, Health Professions, Civil Procedure, Vexatious Litigants, Rules of Civil Procedure, r. 2.1, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, Talwar v. Grand River Hospital St. Mary’s General Hospital, 2020 CanLII 21358 (Ont. HPARB), Talwar v. Grand River Hospital, 2022 ONSC 2166 (Div. Ct.), Talwar v. Grand River Hospital, 2022 ONSC 3822 (Div. Ct.), Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Mukwa v. Farm Credit of Canada, 2022 ONCA 320

Lengyel v. Ontario Assessment Review Board, 2025 ONCA 23

Keywords: Municipal Law, Property Tax Assessments, Administrative Law, Judicial Review, Appeals, Panel Review, Extension of Time

CIVIL DECISIONS

2089322 Ontario Corporation v. Des Roches, 2025 ONCA 17

[Faverau, Monahan and Gomery JJ.A.]

COUNSEL:

L.D.R., acting in person

N. Macos and D. Chung, for the respondent

FACTS:

The appellant is a member of the Wasauksing First Nation (“WFN”). The respondent, 208 Ontario, is a subsidiary of a not-for-profit corporation, WLI, mandated to foster economic development of members of the WFN. The appellant and 208 Ontario by way of proposal from WLI, entered into a joint venture agreement to operate Rezmart Business on WFN lands.

In the initial joint venture agreement, the appellant added the words “without prejudice” beside his signature. The agreement was subsequently reviewed by a lawyer acting on behalf of WLI who advised that “without prejudice” needed to be redacted. The appellant met with a representative from 208 Ontario and initialed next to the redaction (the “second joint venture agreement”). The appellant denied that he agreed to redact or initial the joint venture agreement, thereby questioning the authenticity of the second joint venture agreement. 208 Ontario alleged that the appellant failed to comply with his contractual obligations under the agreement and the appellant asserted that the agreement was not binding on him given the “without prejudice” notation.

This matter involved a complex history of litigation. The decision subject to the present appeal considered two issues. First, whether the second joint venture agreement was an authentic document. Weighing expert and witness evidence, the application judge found that it was. Second, if it was authentic, whether it was voided by s. 28 of the Indian Act. The application judge found that it was not because it was not a lease and did not confer a possessory interest in WFN land. The application judge granted a mandatory order giving 208 Ontario permanent possession of the Rezmart Business and its assets.

On appeal, the appellant brought raised four issues and requested leave to adduce fresh evidence on the fourth issue.

ISSUES:

Did the application judge err in failing to find that the joint venture agreement was void for inconsistency with s. 28 of the Indian Act?
Is the application judge’s July 2024 Order granting permanent possession of the Rezmart Business inconsistent with s. 35.3 of the Wasauksing First Nation Land Code (“WFN Land Code”)?
Did the application judge make a palpable and overriding error in finding that the joint venture agreement as submitted by 208 Ontario was authentic and enforceable, since a redaction in the document along with his initials had been forged?
Did the application judge err in granting 208 Ontario possession of a 20.7 acre allotment when the appellant’s true allotment was only 3 acres?

HOLDING:

Appeal dismissed.

REASONING:

1. No.

The application judge did not err in failing to find that the joint venture agreement was void for inconsistency with s. 28 of the Indian Act.

The appellant argued that the second joint venture agreement gave 208 Ontario the power to obtain a right of possession through a court order issued to remedy his breach, and accordingly, ought to be rendered void by s. 28 of the Indian Act. The Court found that the application judge was correct in finding that the second joint venture agreement did not grant 208 Ontario the right to possess WFN land. The appellant cited no authority for the proposition that the agreement was void simply because one of the possible remedies upon its breach was not permitted by a statutory provision. Further, the Court recognized that the application judge’s remedial order was expressly stated to be subject to the jurisdiction of the WFN to determine rights regarding possession of WFN land.

2. No.

The application judge’s July 2024 Order, which granted permanent possession of Rezmart Business, was not inconsistent with s. 35.3 of the WFN Land Code.

The appellant objected to the characterization of the July 2024 Order as interim. Accordingly, the appellant argued that the Order was inconsistent with s. 35.3 of the WFN Land Code which prohibited non-citizens from acquiring a permanent interest in WFN land. The application judge’s order was made explicitly subject to the rights of the WFN to administer WFN land and accordingly, the Court did not give effect to this submission.

3. No.

The application judge did not make a palpable and overriding error in finding that the second joint venture agreement was authentic, and that the appellant’s redaction and initials had not been forged.

While the appellant recognized that the application judge set out the correct legal test, he argued that the application judge drew unreasonable inferences from the factual record to support the conclusion that the second joint venture agreement was authentic. The Court found that the application judge did not commit any of the alleged errors and that it was within her discretion to give weight to an expert’s opinion.

4. No.

The Court did not grant the appellant leave to raise a new argument and adduce fresh evidence on the issue. The appellant failed to address, much less satisfy, the basic requirements needed to raise a new issue on appeal.

De Longte v. De Longte, 2025 ONCA 17

[Lauwers J.A. (Motions Judge)]

Counsel:

D. L., acting in person

Yates, for the respondent/responding party

FACTS:

The appellant/moving party brought a motion staying enforcement of the support provisions in a Divorce Order, and for leave to file a factum in the main appeal in excess of the page/word count limit. The appellant also sought an extension of time to perfect the appeal, despite having perfected the appeal already.

The parties have two dependent children of the marriage, and the Divorce Order required the appellant and the respondent to pay each other monthly child support payments. The appellant was required to pay $3,349 a month based on his annual income of $255,986 and the respondent was required to pay $1,844 a month based on her annual income of $255,667. The only payments that were not stayed by the appellant’s appeal were the child support payments.

ISSUES:

Should the stay pending appeal be granted?
Should the appellant be permitted to extend the length of his factum, and be given an extension of time to perfect the appeal?

HOLDING:

Motion granted, in part.

REASONING: 

An order that is not stayed automatically may be stayed pursuant to r. 63.02(1) of the Rules of Civil Procedure. The test for staying an order pending appeal requires the Court to determine whether a stay is in the interest of justice considering the following three factors:

(1) a preliminary assessment of the merits to ensure that there is a serious question to be tried;

(2) whether the applicant would suffer irreparable harm if the application were refused; and

(3) an assessment of the balance of inconvenience as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

All three factors must be satisfied for the court to grant a stay. First, the Court found that the appeal was not vexatious. However, based on the appellant’s submissions at the motion, the Court felt that the appellant saw the appeal as an opportunity to re-try the case. The appellant had not identified a serious question to be tried on appeal. Second, the Court found that the appellant did not demonstrate how paying child support would result in permanent and non-compensable harm. Lastly, the Court noted that when assessing the balance of convenience, it is relevant to look at the interests of third parties. The Court found that staying the child support order would harm the children. As a result, the Court saw no reason to issue a stay and therefore dismissed this aspect of the motion.

Yes.

The Court reasoned that since the appellant was self-represented and that the case was complex, he would be permitted to file a factum of no more than 40 pages with a proportional increase in the word count (up from the normal 30 pages). The Court also extended the filling date for the final factum and extended the perfection date.

ID Inc. v. Toronto Wholesale Produce Association, 2025 ONCA 22

[Nordheimer, Copeland and Madsen JJ.A.]

COUNSEL:

David Greenwood and Christopher McClelland, for the appellant/respondent by way of cross-appeal
J. Zibarras and R. MacGregor, for the respondent/appellant by way of cross-appeal

Keywords: Contracts, Interpretation, Waiver, Estoppel, Entire Agreement Clauses, Damages, Interest, Civil Procedure, Pleadings, Courts of Justice Act, R.S.O. 1990, c. C.42, ss. 128(4)(g), 129(5), and 130, Rules of Civil Procedure, r. 25.06(9), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Paletta International Corp. v. Canada Life Mortgage Services Ltd. (2003), 170 O.A.C. 5 (C.A.), 2249778 Ontario Inc. v. Smith (c.o.b. Fratburger), 2014 ONCA 788, U.S. Steel Canada Inc. et al. v. The United Steel Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union et al., 2022 ONSC 6993, Arnold v. Britton, [2015] UKSC 36, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2021 ONCA 907, Grasshopper Solar Corporation v. Independent Electricity System Operator, 2020 ONCA 499, Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2018 ONCA 253, Maxam Opportunities Fund Limited Partnership v. 729171 Alberta Inc., 2016 BCCA 53

FACTS:

The Toronto Wholesale Produce Association (TWPA) appealed a trial judgment granting ID Inc. (ID) a declaration that TWPA had breached its contract and awarded ID damages. The dispute arose over a proposal to convert a traditional billboard at the Ontario Food Terminal to a digital format. ID sought damages, claiming that the TWPA failed to uphold the terms of their agreement. The Sale and Maintenance Agreement (SMA) between TWPA and ID outlined the terms for converting the traditional billboard to a digital display. Under paragraph 8 of the SMA, ID was responsible for obtaining necessary permits on behalf of TWPA. If ID failed to secure the required permits within 360 days, the agreement would terminate, and ID would retain the initial deposit as compensation for its efforts in obtaining the permit.

At trial, the trial judge held that the SMA had not terminated in accordance with its terms. She found that ID Inc. had not failed to get the permit, nor was it unable to do so. Rather, she found that the TWPA had waived compliance with the expiry provision or, alternatively, was estopped from relying on it. TWPA appealed this finding, and ID cross-appealed the trial judge’s dismissal of its claim for breach of a separate oral agreement that it claimed it had reached with the TWPA.

This appeal is related to the appeal in ID Inc. v. Toronto Wholesale Produce Association, 2024 ONCA 948

ISSUES: 

Did the trial judge err in her interpretation of the SMA?
If so, did the trial judge err that the TWPA had waived or was estopped from relying on the provision?
Did the trial judge err by dismissing ID’s claim for breach of a separate oral agreement with the TWPA?

HOLDING: 

Appeal allowed and cross-appeal dismissed.

REASONING: 

1. Yes.

Breach of Contract

The Court held that the trial judge erred in her interpretation of the SMA by introducing the concept of “fault” into the terms of the contract instead of using the basic principles of contractual interpretation, namely looking at the ordinary meaning of the words of the contract in light of the factual matrix. Rather, a proper interpretation of the provision in the SMA would not consider why ID failed to obtain the permit, but instead, whether it failed to do so at all. The Court emphasized that ID prepared the original draft of the SMA and had inserted the 360-day expiration and non-refundable deposit, which as a result, created no inherent unfairness since ID would receive compensation. Finally, as ID failed to respond to StrategyCorp’s letter outlining the expiration date as the basis for its termination (see ID Inc. v. Toronto Wholesale Produce Association, 2024 ONCA 948), ID did not challenge this until months later, which was inconsistent with its alleged interpretation of the SMA.

2. Yes.

Waiver

The Court disagreed with the trial judge’s finding that TWPA had waived its reliance on the time limit in the SMA when it instructed ID to pull the original permit application. First, the Court stated that this was not a unilateral decision, but was agreed to by all parties, and so this could not be said to have been an individual party waiving its rights under the contract. Second, there was no evidence that this waiver occurred. Rather, evidence indicated that TWPA had notified StrategyCorp of the expiry date, which was used to terminate the agreement according to the SMA. Regardless, there was no clear communication of an intention to waive this right.

Estoppel

The Court disagreed with the trial judge’s finding that the TWPA was estopped from relying on the 360-day limit, holding that there was no evidence to support a finding of a clear shared assumption of the type necessary to estop the TWPA from relying on the 360-day time limit. On a proper interpretation of the SMA, there could not have been any breach of it because, by the time the events occurred, the SMA had expired. The TWPA did not waive the time limit in the SMA and was not estopped from relying on it.

Prejudgment and Post-Judgment Interest

The Court disagreed with the trial judge’s decision to award interest at the rate specified in the SMA, despite ID not pleading this specific rate in its claim. The Court held that to claim interest at a non-statutory rate, a party must expressly plead that entitlement. A general claim for interest under the Courts of Justice Act was insufficient to justify the award. The trial judge erred in finding the pleadings adequate to support the interest claim, and the Court emphasized the need for clear pleading of such claims.

3. No.

The Court dismissed ID’s cross-appeal of the trial judge’s dismissal of its claim for a breach of an alleged oral agreement with the TWPA. The trial judge found no evidence of a binding agreement, relying on the SMA’s entire agreement clause, lack of board approval, and contradictions in witness testimony. ID’s argument that the trial judge applied the wrong test for contract formation was dismissed, as it could not show a palpable and overriding error on behalf of the trial judge.

Wiener Städtische Versicherung AG Vienna Insurance Group v. Infrassure Ltd., 2025 ONCA 20

[Miller, Monahan and Dawe JJ.A.]

COUNSEL:

R. B. Bell, S. M. Gaudet and R. F. Shoom, for the appellant
W. McNamara, C. Hunter and M. McGreevey, for the respondent

FACTS:

This appeal concerned the meaning and effect of a so-called “follow settlements” clause in a contract of reinsurance.

Litigation began from a failure that occurred in a flash furnace of the Vale smelter in Sudbury, Ontario in 2011, resulting in a 26-week shutdown of the flash furnace. Vale pursued a claim for business interruption losses under a Primary Policy with its lead insurer, Zurich. Zurich settled Vale Canada’s claim in December 2014 for $140 million (the “Settlement”).

Zurich had entered into reinsurance contracts with a number of reinsurers, including the respondent Wiener Städtische Versicherung AG Vienna Insurance Group (“VIG”). Zurich’s reinsurance applied to a percentage of a settlement under the Primary Policy that exceeded US$50 million/C$63.465 million (the “Attachment Point”). In March 2015, VIG paid $8,433,643.78 to Zurich, representing VIG’s portion of the Settlement pursuant to its reinsurance contract with Zurich.

VIG, in turn, had entered into a retrocession agreement (the “Retrocession Agreement”) with the appellant Infrassure, whereby VIG ceded to Infrassure 99.89% of the risk and the associated premium that VIG had assumed under its policy of reinsurance with Zurich. VIG sought indemnification from Infrassure for 99.89% of the amount it had paid to Zurich, along with various other loss adjustment costs, arguing that Infrassure was bound by a “follow settlements” clause in the Retrocession Agreement (the “Follow Settlements Clause”). Infrassure denied that it was required by the Retrocession Agreement to indemnify VIG. This led VIG to commence an action for damages against Infrassure.

The trial judge found that Infrassure was bound by the Follow Settlements Clause in the Retrocession Agreement and that there was no basis to qualify or limit Infrassure’s obligation in that regard. She therefore awarded judgment in favour of VIG in the amount of $8,969,760.17, plus costs. Infrassure appealed.

ISSUES: 

Did the trial judge err in her interpretation of the Retrocession Agreement?
Did the trial judge commit a palpable and overriding error in applying the ‘single proviso’ Follow Settlements Clause in the Retrocession Agreement rather than the ‘double proviso’ follow settlements provisions in the Zurich Conditions?
Did the trial judge commit a palpable and overriding error in finding that the settlement arguably fell within coverage in the Primary Policy “as a matter of law”?
Did the trial judge make a palpable and overriding error in finding that Zurich took all proper and businesslike steps in entering into the Settlement?
Did the trial judge make a palpable and overriding error in finding that VIG took all proper and businesslike steps in paying Zurich its proportionate share of the Settlement?
Was there a basis to interfere with the trial judge’s order that Infrassure reimburse VIG for loss adjustment fees that VIG had paid to Zurich?

HOLDING: 

Appeal dismissed.

REASONING: 

1. Did the trial judge err in her interpretation of the Retrocession Agreement?

No. The Court disagreed with the appellant’s claim that the trial judge made an error of law to consider the Proposed Stamp Language in interpreting the Retrocession Agreement. The trial judge made it clear that the Proposed Stamp Language was not being considered as evidence of either party’s subjective understanding, but merely as factual evidence of what transpired when Infrassure included the language and then removed it when it sought to participate in Vale’s global insurance program as a direct reinsurer. It was thus admissible as objective evidence of the factual matrix that was known to the parties at the time the contract was executed, in the context of a global insurance program using standard London market forms and being managed by a single broker. It tended to show that both parties knew that Zurich would only accept reinsurers who agreed to be bound by settlements it reached with Vale. Moreover, it was evidence that Infrassure accepted this condition, since it resubmitted both the initial offer to reinsure and the final Retrocession Agreement with the Proposed Stamp Language struck out.

The Court further disagreed with the appellant’s argument that the trial judge made a further legal error in failing to read the Retrocession Agreement as a whole to arrive at a harmonious interpretation which gave meaning to all provisions. The trial judge did not fail to consider the provisions in the Subscription Agreement relied upon by Infrassure. Rather, the trial judge accepted Infrassure’s submission that the Subscription Agreement formed part of the Retrocession Contract, but went on to find that the relevant language was unclear and/or ambiguous and did not rise to the level of an “express term providing otherwise” as required by the Follow Settlements Clause.

2. Did the trial judge commit a palpable and overriding error in applying the ‘single proviso’ Follow Settlements Clause in the Retrocession Agreement rather than the ‘double proviso’ follow settlements provisions in the Zurich Conditions?

No. The Court held that whether Infrassure’s obligation to follow the Settlement was governed by the Follow Settlements Clause in the Retrocession Agreement as opposed to clause 5.2 of the Zurich Conditions was a question of mixed fact and law, reviewable on a deferential standard. Infrassure had not identified any palpable and overriding error in the trial judge’s finding that Infrassure was bound by the Follow Settlements Clause in the Retrocession Agreement, and that the Zurich Conditions had no relevance to this appeal.

The Court noted that the Zurich Conditions were part of the reinsurance contract between Zurich and VIG, a contract to which Infrassure was not a party. Infrassure’s contractual obligations to VIG were set out in the Retrocession Agreement, including the Follow Settlements Clause. Insurance policies and their reinsurance policies are separate, independent contracts: Wasa International Insurance Co. Ltd. v. Lexington Insurance Co. The Court held that Infrassure and VIG were not bound by any of the other provisions of the Zurich Conditions as between one another, including the follow settlement obligations in that agreement. Instead, their obligations in relation to settlements reached under the Primary Policy were governed by the contract to which Infrassure and VIG both agreed, namely, the Retrocession Agreement. It followed that VIG’s obligation to Infrassure was to prove only that it had paid Zurich and that the settlement was arguably covered as a matter of law under the Primary Policy.

The Court noted that even if clause 5.2 of the Zurich Conditions were somehow relevant to the dispute between VIG and Infrassure, the Zurich Conditions were subject to Swiss law. Having tendered evidence of Swiss law at trial, Infrassure argued in its closing trial submissions that the court need not consider Swiss law to determine the issues in dispute. The trial judge therefore did not make a finding as to the legal effect of clauses 3 and/or 5.2 of the Zurich Conditions. Accordingly, there was no basis upon which the Court could make any such finding, much less rely upon the Zurich Conditions to oust the Follow Settlements Clause in the Retrocession Agreement, to which VIG and Infrassure had agreed.

3. Did the trial judge commit a palpable and overriding error in finding that the settlement arguably fell within coverage in the Primary Policy “as a matter of law”?

No. The Court held that ultimately, it was unnecessary to express a firm view on this issue since, even if, for the sake of argument, the trial judge went beyond what she was required to do in order to find that Zurich’s settlement was “arguably covered”, this simply meant she was imposing an excessively high burden on VIG. This would not undermine her ultimate finding that the Settlement was arguably covered “as a matter of law” under the Primary Policy.

4. Did the trial judge make a palpable and overriding error in finding that Zurich took all proper and businesslike steps in entering into the Settlement?

No. The Court held that trial judge’s finding that Zurich satisfied this standard was reasonable. She analysed in considerable detail Infrassure’s objections to the terms of the Settlement. She pointed out that all of the issues now raised by Infrassure were considered by Zurich and the other reinsurers at the time. In fact, the negotiation brief prepared by Zurich’s legal counsel in advance of the December 2014 settlement meeting canvassed these issues in detail and set out the strengths and weaknesses of Vale Canada’s and Zurich’s respective positions. The trial judge also pointed out that, while the reinsurers’ position going into the December 2014 settlement discussions was that only 10 weeks were required to repair the furnace, Zurich’s experts advised that this was a “best case” scenario and that an appropriate repair might well take an extra 4 to 5 weeks. The trial judge further found that that it was reasonable for Zurich to agree to the partial rebuild of the furnace, given Vale’s position that there had been considerable water damage from the incident.

The Court noted that once it was established that the settlement by Zurich was covered by the Primary Policy as a matter of law, the burden of proof shifted to Infrassure to prove an absence of good faith or that the settlement was not made in a businesslike fashion: Charman v. Guardian Royal Exchange Assurance plc. The Court further noted that it also for Infrassure to show, on appeal, that the trial judge committed a palpable and overriding error in reaching her conclusion on this point. The Court held that Infrassure had done neither.

5. Did the trial judge make a palpable and overriding error in finding that VIG took all proper and businesslike steps in paying Zurich its proportionate share of the Settlement?

No. The Court held that the trial judge made no palpable and overriding error in her analysis of the proper and businesslike steps issue. As the trial judge pointed out, Infrassure was required to follow settlements reached by Zurich under the Primary Policy. Accordingly, the proper and businesslike standard applied to Zurich in entering into the settlement with Vale, and not to the payment by VIG to Zurich: Tokio Marine.

6. Was there a basis to interfere with the trial judge’s order that Infrassure reimburse VIG for loss adjustment fees that VIG had paid to Zurich?

The Court did not entertain this ground of appeal. The Court noted that at trial, Infrassure argued that VIG’s claim for loss adjustment fees was statute-barred, an argument that was dismissed by the trial judge. Infrassure did not appeal that finding. Instead, Infrassure asked the Court to make a finding as to whether there was an agreement between VIG and Zurich regarding the payment of loss adjustment fees. Quite apart from the fact that Zurich was not a party to the proceeding, Infrassure was once again attempting to make claims based on agreements to which it was not a party.

Kasandra v. Sartarelli, 2025 ONCA 27

[Sossin, Madsen and Pomerance JJ.A.]

COUNSEL:

E. Lay, for the appellant
J.P. Zubec and N. Raja, for the respondent

FACTS:

The appellant and respondent were siblings who were both named executors under their father’s last will and testament, along with his long-time solicitor, M.M. Litigation arose and each sibling sought to have the other removed as estate trustee.

The estate involved two assets: a rental property which was bequeathed to the appellant; and the proceeds of a joint account, held by the father and respondent for several decades, bequeathed to the respondent. Any residue was to be split equally, but no residue existed.

The parties disagreed how debts of the estate should be paid given the absence of residue. The respondent relied on the opinion of M.M. regarding how the assets should abate. M.M. opined that the debts should be borne pro rata in relation to the value of the assets bequeathed. This would result in the appellant paying 89.76% of the estate debt and the respondent paying 10.24% of the estate debt.

The appellant found this unfair and opposed addressing the estate debt. In addition, the appellant delayed filing an amended tax return which was necessary to address recapture in relation to depreciation on the rental property, and the related payment of additional taxes. This disagreement led to the breakdown in the parties’ relationship and administration of the estate.

The application judge concluded that the appellant’s continued role as estate trustee would hamper the administration of the estate and further reduce amounts available to creditors and beneficiaries. She therefore granted the respondent’s motion to remove the appellant as estate trustee. She dismissed the appellant’s application to remove the respondent, finding that he had not preferred his own interests over those of the estate, had reasonably relied on professional advice, and was competent to act as estate trustee.

ISSUES: 

Did the application judge err in endorsing an incorrect statement on the law of abatement, and in doing so, make an error in law?
Presuming that the application judge did err in law, did this suffuse her findings of fact and mixed fact and law, leading to a misapprehension of the evidence?

HOLDING: 

Appeal dismissed.

REASONING: 

The Court dealt with the issues jointly. The appellant’s position did not correspond with the record of facts as found by the application judge, nor did the decision turn on the issue of abatement. The Court highlighted facts which demonstrated that the appellant refused to cooperate with various matters regarding the timely administration of the estate on the basis of past grievances and perceived unfairness regarding her father’s treatment towards her and her siblings while he was alive. Accordingly, the Court stated that the record did not support any assertion that abatement was a concern motivating the appellant’s conduct. Ultimately, the Court found that the matter was not an appropriate case upon which to make comment on the law of abatement given the issue was ancillary at most.

SHORT CIVIL DECISIONS

Rahman v. Elia Associates, 2025 ONCA 16

[Roberts, Miller and Pomerance JJ.A.]

COUNSEL:

A. R., acting in person
T. Gleason and M. Phyper, for the respondents

Tewari v. Aziz, 2025 ONCA 29

[Huscroft, Harvison Young and Zarnett JJ.A.]

COUNSEL:

G. T., acting in person
S. Balpataky and D. Konomi, for the respondents T. Aziz, S. Aziz, Amir Quality Meats and Amir Specialty Poultry (the “Aziz respondents”)
E. M. Lane, for the respondents M. Czenski and M. Creek (the “Mallot Creek respondents”)

Talwar v. Grand River Hospital, 2025 ONCA 35

[Paciocco, Monahan and Wilson JJ.A]

COUNSEL:

Dr. M. T., acting in person
H. Ngan and I. Wright, for the responding parties

Keywords: Contracts, Employment, Administrative Law, Health Professions, Civil Procedure, Vexatious Litigants, Rules of Civil Procedure, r. 2.1, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, Talwar v. Grand River Hospital St. Mary’s General Hospital, 2020 CanLII 21358 (Ont. HPARB), Talwar v. Grand River Hospital, 2022 ONSC 2166 (Div. Ct.), Talwar v. Grand River Hospital, 2022 ONSC 3822 (Div. Ct.), Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Mukwa v. Farm Credit of Canada, 2022 ONCA 320

Lengyel v. Ontario Assessment Review Board, 2025 ONCA 23

[Huscroft, Harvison Young and Zarnett JJ.A.]

COUNSEL:

G. L., acting in person
M. Kellythorne, for the respondent Ontario Assessment Review Board
G. Thomson, for the respondent City of Toronto

Keywords: Municipal Law, Property Tax Assessments, Administrative Law, Judicial Review, Appeals, Panel Review, Extension of Time

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