Court of Appeal Summaries (January 20- January 24)

January 27, 2025
John Polyzogopoulos

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Civil Decisions

Jackson v. Rosenberg, 2025 ONCA 48

Keywords: Real Property, Co-Ownership, Joint Tenancies, Right of Survivorship, Severance, Trusts, Resulting Trusts, Civil Procedure, Appeals, Cross-Appeals, Orders, Supplementary Reasons, Rules of Civil Procedure, rr. 61.07(1)(a), 61.07(3), Jackson v. Rosenberg, 2024 ONCA 875, Hansen Estate v Hansen, 2012 ONCA 112, Pecore v. Pecore, 2007 SCC 17

Ottawa (City) v. ClubLink Corporation ULC, 2025 ONCA 34

Keywords: Contracts, Interpretation, Enforceability, Severance, Real Property, Rule Against Perpetuities, Perpetuities Act, R.S.O. 1990, c. P.9, Planning Act, R.S.O. 1990, c. P.13, Ottawa (City) v. ClubLink Corporation ULC, 2021 ONCA 847, Housen v. Nikolaisen, 2002 SCC 33, Transport North American Express Inc. v. New Solutions Financial Corp., 2004 SCC 7, Canadian Long Island Petroleums Ltd. v. Irving Wire Products, [1974] 2 S.C.R. 715, Canadian American Financial Corp. (Canada) Ltd. v. King (1989), 60 D.L.R. (4th) 293 (B.C.C.A.), 2176693 Ontario Ltd. v. Cora Franchise Group Inc., 2015 ONCA 152, Harris v. Minister of National Revenue, [1966] S.C.R. 489, Sutherland Estate v. Dyer (1991), 4 O.R. (3d) 168 (Gen. Div.), ClubLink Corporation ULC v. Ottawa (City), 2022 CanLII 23501 (Ont. Land Tribunal)

VanderMolen Homes Inc. v. Mani, 2025 ONCA 45

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Repudiation, Acceptance, Waiver, Rules of Civil Procedure, r. 20.04(2.1), Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051, Firoozi v. 809963 Ontario Limited, 2005 CanLII 56173 (Ont. S.C.), Coffey v. High, 2024 ONSC 420, Nicolaou v. Sobhani, 2017 ONSC 7602, Housen v. Nikolaisen, 2002 SCC 33, Farrell v. Riley, 2024 ONCA 449, Angus v. CDRW Holdings Ltd., 2023 BCCA 330, Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.L.R. (4th) 97 (Ont. C.A.), Place Concorde East Limited Partnership v. Shelter Corp. of Canada Ltd. (2006), 270 D.L.R. (4th) 181 (Ont. C.A), Chapman v. Ginter, [1968] S.C.R. 560, Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2024 ONCA 675

Short Civil Decisions

Allison v. Bent, 2025 ONCA 36

Keywords: Wills and Estates, Trusts, Express Trusts, Purchase Money Resulting Trusts, Real Property, Evidence, Statute of Frauds, R.S.O. 1990, c. S.19, s 1(1)

Martin v. 11037315 Canada Inc., 2025 ONCA 44

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, References, Default Judgments, Procedural and Natural Justice, Reasonable Apprehension of Bias, Appeals, Jurisdiction, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(b), Rules of Civil Procedure, rr. 54 and 64.06, Martin v. 11037315 Canada Inc., 2022 ONCA 322, Fernandez v. Unique Auto Collision Network Solutions Corp., 2014 ONCA 458

Benbella v. National Dental Examining Board of Canada, 2025 ONCA 43

Keywords: Civil Procedure, Costs, Security for Costs, Orders, Varying or Amending, Rules of Civil Procedure, r. 59.06

Mosher v. Bossence, 2025 ONCA 46

Keywords: Family Law, Parenting, Variation, Material Change in Circumstances, Civil Procedure, Evidence, Admissibility, Costs, B.J.T. v. J.D., 2022 SCC 24, Van de Perre v. Edwards, 2001 SCC 60

Marmer Penner Inc. v. Vacaru, 2025 ONCA 61

Keywords: Contracts, Solicitor and Client, Accountants, Professional Fees, Negligence, Civil Procedure, Judgments, Stay of Execution, Appeals, Jurisdiction, Marmer Penner Inc. v. Purcaru, 2021 ONSC 3785, Marmer Penner Inc. v. Vacaru, 2022 ONCA 280, Paradigm Quest Inc. v. McInroy, 2017 ONCA 547, Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 116 O.A.C. 103

CIVIL DECISIONS

Jackson v. Rosenberg, ONCA 2025 48

[van Rensburg, Zarnett and George JJ.A.]

Counsel:

M. Basiri, for the appellant

G. Bawolska and M. Kaur, for the respondent

FACTS:

The application judge found that the joint tenancy that had existed was validly severed and that the appellant’s interest as a tenant in common in the property was held on resulting trust for the respondent. He also held that a partial right of survivorship in the appellant’s favour still subsisted. In its 2024 decision, the Court dismissed the appeal and upheld all of the application judge’s findings except that a right of survivorship over 50% of the property continued after the joint tenancy was validly severed. Following the appeal, the Court invited further submissions as to whether changes to the formal judgments of the application judge were appropriate given his error in finding that a right of survivorship existed.

ISSUES:

Whether the formal judgments required revisions to reflect the error of the application judge in finding that the appellant held a right of survivorship over 50% of the property following the severance of the joint tenancy?

HOLDING:

Formal judgments varied.

REASONING:

Yes, the formal judgments needed to be varied. Ordinarily, a notice of cross-appeal is required if a respondent seeks to vary the order below. However, a cross-appeal may be heard without such a notice with leave of the court: r. 61.07(1)(a) and (3).

In this case, it was (1) in the interests of justice to grant leave, (2) treat the respondent’s requested changes as a cross-appeal, and (3) vary the judgments to accord with the position that the right of survivorship was completely extinguished when the joint tenancy was severed.

The Court cited its original reasons on appeal, stating that “[n]o right of survivorship could attach to or flow from” the interest the application judge found the appellant held in the property following the 2020 transfer – that is, an interest as a tenant in common that she held on resulting trust for the respondent. The Court determined that this error could be corrected with revisions to paras. 2-4 of the formal judgments and the deletion of what was para. 5.

However, the Court held that the respondent’s request for a vesting order to replace what was para. 5 of the judgments did not flow as clearly from the need to correct the error about the right of survivorship. Notwithstanding this finding, the Court held that the respondent, as the beneficiary of a resulting trust over the 50% share of the property held in the appellant’s name, was entitled to demand that she comply with her duties as trustee. The Court explained that it is the very essence of the duty of a person holding property on resulting trust to return legal title to the original owner: Pecore v. Pecore.

The Court found that the appellant had not raised any reason why she should not have to return title other than contesting the finding of resulting trust. However, that point was decided against her by the application judge and was upheld by the Court. It would not be in the interests of justice to require the parties to go through another round of litigation in the Superior Court to clean up title. Therefore, the Court varied the formal judgments to add the language in para. 5 providing for a vesting order on the terms requested by the appellant, being that 100% of the beneficial ownership of the property would be vested in him.

Ottawa (City) v. ClubLink Corporation ULC, 2025 ONCA 34

[Fairburn A.C.J.O., Coroza and Sossin JJ.A.]

COUNSEL:

K. Crain and L. E. Robinson, for the appellant

M. P. Gottlieb, C. G. Smith, J.C. Mastrangelo and M. Flowers, for the respondent

A. Tomkins and C. R. Daoust, for the intervener

FACTS:

This appeal concerned the effect of the decision of the Court in Ottawa (City) v. ClubLink Corporation ULC, 2021 ONCA 847, which resolved a key dispute between the City of Ottawa (“City”) and Clublink Corporation ULC (“Clublink”). In that decision, some of the terms of an agreement concluded in 1981 (the “1981 Agreement”) which governed the conveyance of land now owned by Clublink and operated as a golf course (the “golf course lands”) were struck for offending the rule against perpetuities.

The Court’s decision did not address the impact that the struck-out provisions might have on other provisions of the 1981 Agreement and related contracts dealing with the land in dispute – in particular, the removal of the requirement that 40% of the property be kept as open space (of which the golf course lands form a part). This question was remitted back to the application judge who held that certain additional provisions in the agreement and related contracts were inoperative, including those provisions requiring 40% of the property be kept as open space, and those provisions relating to the golf course lands. This resulted in Clublink being able to redevelop the subject lands without the constraints set out in the 1981 Agreement and related contracts (the “remittal decision”).

The City, whose position was supported by the intervener, Kanata Greenspace Protection Coalition (the “Coalition”), appealed.

ISSUES:

Did the application judge err in:

failing to carry out the Court of Appeal’s direction in remitting ClubLink’s severance argument for further consideration?
applying an unknown and incorrect principle of “inoperability” to contractual provisions that established personal rights?
failing to apply the governing principles of contractual interpretation in identifying the inoperative provisions?

HOLDING:

Appeal dismissed.

REASONING:

Standard of Review:

The Court addressed the standard of review. The City argued that the standard of review of the application judge’s decision was correctness for three reasons: 1) it concerned the Court’s direction to the application judge; 2) the availability of a remedy/doctrine of “inoperability”; and 3) extricable questions of law in the interpretation of the related contracts.

The Court held that the application judge’s interpretation of both the remittal and the application of the “inoperability” remedy were subject to the standard of correctness. The Court also noted that the factual findings made by the application judge based on the record were entitled to deference absent a palpable and overrising error.

The Court outlined that the overarching question for resolution was how the rest of the 1981 Agreement and related contracts were affected by the voiding of the two provisions concerning the conveyancing of the golf course lands. That is, whether all or part of the 1981 Agreement would be void and unenforceable in light of ss. 5(4) and 9 being declared void and unenforceable.

The City argued that the application judge started his analysis from the erroneous assumption that any “interrelated provisions” were “inoperative” while Clublink argued that the application judge’s articulation of the issue remitted by the Court in his remittal decision carefully tracked the language of the Court and did not reveal any error. The Court found that the application judge proceeded on the premise that the bargain struck by the 1981 Agreement could be maintained, provided that the remaining terms of the agreement and related contacts permitted the redevelopment of the golf course lands. However, the application judge found that the provisions voided by the Court were the “essential provisions” governing the evolution of the golf course lands and with those provisions no longer enforceable, the bargain struck by the parties in 1981 was no longer tenable.

and 3. No.

The Court found that the remaining two grounds of appeal concerning inoperability and the proper principles of contractual interpretation could be dealt with together.

The Court found that the application judge’s use of the term “inoperative” did not mean anything other than void and unenforceable. The Court outlined that the question was whether the application judge erred in his remittal decision by finding specific provisions of the 1981 Agreement and related contracts to be inoperable based on his assessment of their interrelation with ss. 5(4) and 9 of the 1981 Agreements, which had been found to be void.

The Court rejected the parties’ submissions that the application judge, despite plainly stating that “the law of severance had no place in this decision”, nonetheless engaged in severance as part of his analysis of which provisions of the 1981 Agreement and related contract were “inoperative.” The Court held that addressing the question remitted by the Court did not invite an examination of the law of severance and its applicability to this case. The Court found that the application judge began his analysis from the premise that it was not open to him to simply declare all provisions of the 1981 Agreement and contracts relating to the golf course to be void. According to the Court, Roberts J.A. specifically left this possibility open in para 69 of her reasons. The Court found that based upon the application judge’s own interpretation of the 1981 Agreement and related contracts, he clearly reached that conclusion. The Court noted that rather than simply declaring the contract(s) void as they related to the golf course lands, the application judge effectively redrafted the agreement to reach the same end, thereby potentially engaging the broader law of severance. However, the Court declined to comment on whether severance may apply to contracts where provisions have been declared void due to the rule against perpetuities.

The Court further outlined that the key to addressing whether all or part of the 1981 Agreement and related contracts must be considered void was determining whether the bargain struck over the golf course lands could survive the removal of the conveyancing provisions in ss. 5(4) and 9 because those provisions together provided for the contractually permissible path for redeveloping the golf course lands to another use.

The City submitted that provisions such as the contractual obligation to maintain the use of the golf course lands as a golf course in perpetuity and the City’s right of first refusal, among other provisions, should not be interfered with simply because the conveyancing provisions had been found void. The City, relying on Harris v. Minister of National Revenue and Sutherland Estate v. Dyer (1991), emphasized that contractual obligations are not subject to any rule against perpetuities and may run with ownership of the land. Complimentarily, the Coalition argued that the core of the 40% Agreement and the related contracts was the protection of open greenspace for recreation and environmental purposes. The application judge concluded that the parties intended, through “integrally related provisions,” to strike a balance between the 40% open space principle and allowing the golf course lands to evolve over time beyond its use as a golf course. However, the Court found that removal of the provisions imposing constraints on the conveyancing of the golf course lands fundamentally frustrated that balance, such that the bargain struck in relation to the golf course lands could not be sustained. Importantly, the Court noted that although the contractual obligations are not subject to the time limits imposed through the rule against perpetuities on property interests, they also cannot be viewed in isolation. According to the Court, these provisions only reflected the intent of the parties to the 1981 Agreement to the extent that the conveyance rights and restrictions also attached to the golf course lands. The Court held that stripped of those conveyancing rights and restrictions, it could not be said that the parties nonetheless would have wished to have the contractual obligations relating to the golf course lands enforced, nor could it be said that the provisions of the related contracts, to the extent they bear on the golf course lands, can operate separate and apart from the initial bargain reflected in the 1981 Agreement. The Court held that without the balance created by the 1981 Agreement, the bargain between the parties relating to the golf course lands was at an end, including the 40% open space provisions.

The remedy in this case

Given the finding that the parties’ agreement with respect to the golf course lands could no longer continue, the Court undertook its own analysis that had the same effect as the application judge’s redrafting of the 1981 Agreement and related contracts – Clublink will be able to pursue its proposed redevelopment of the golf course lands, and the City will no longer be able to withhold its consent in relation to that redevelopment. The Court noted that the end of the parties’ bargaining did not bring an end to the City’s constraints over the redevelopment of the golf course lands. The City could have opposed Clublink’s proposed changes to the zoning by-law amendment and made arguments under the Planning Act. However, it did not. As a result, the Ontario Land Tribunal approved Clublink’s proposed zoning by-law amendment, subject to conditions. The Court noted that OLT specifically found the redevelopment of the golf course lands to be consistent with the City’s current Official Plan and the other governing land use policies, and otherwise to be in the public interest.

The Court issued a fresh declaration that all provisions in the 1981 Agreement and related contracts relating to the golf course lands were to be considered void as a consequence of the earlier decision declaring ss. 5(4) and 9 of the 1981 Agreement to be void.

VanderMolen Homes Inc. v. Mani, 2025 ONCA 45

[Sossin, Madsen and Pomerance JJ.A]

FACTS:

M. Simaan, for the appellants

J. Masterman, for the respondent

FACTS:

The appellants, a couple who sought to purchase an under-construction home, appealed a summary judgment finding that they had breached their agreement to purchase the home from the respondent, VanderMolen Homes. The dispute arose over whether the parties had a binding agreement for the sale of the property, given that the respondent accepted an extension of conditional terms after the irrevocable deadline. After waiving the conditions and paying the second deposit, the appellants later advised the respondent they would not complete the purchase. The respondent resold the property and successfully sought damages for the price difference and carrying costs. On appeal, the appellants challenged the motion judge’s conclusion that a binding contract existed, and the calculation of damages awarded.

ISSUES:

Did the motion judge err in treating the expiry of a “conditional agreement” as analogous to the repudiation of a “firm and binding contract”?
Did the motion judge err in failing to appreciate that the expiry of the offer deadline ended the conditional agreement of purchase and sale?
Did the motion judge err in considering the parties’ subsequent conduct?

HOLDING:

Appeal dismissed.

REASONING:

1. No.

The Court held that the motion judge correctly determined that the agreement of purchase and sale became binding when the appellants waived the conditions and paid the second deposit. The Court rejected the appellant’s argument that the judge failed to appreciate that the agreement remained conditional and unenforceable, noting that the motion judge appropriately distinguished this case from Firoozi, which dealt with unresolved uncertainties and a condition precedent dependent on a third party. The Court emphasized that the parties’ obligations had crystallized as of January 26, 2022, making the agreement enforceable.

2. No.

The Court held that the motion judge correctly determined that the appellants did not treat the contract as terminated after the respondent missed the extension offer deadline. The motion judge found that the appellants, by signing the waiver of conditions and paying the further deposit on January 26, 2022, continued to perform under the agreement instead of treating it as repudiated. The Court emphasized that a repudiatory breach does not automatically terminate a contract but gives the innocent party the option to elect to end it. Since the appellants did not make such an election, the motion judge’s conclusion was entitled to deference.

3. No.

The Court held that the motion judge did not err in admitting evidence of subsequent conduct to conclude that the parties treated the contract as ongoing and binding. The Court noted that evidence of subsequent conduct is admissible only when the contract remains ambiguous after considering its text and factual matrix. Here, the subsequent conduct was relevant to determine whether the missed deadline to accept the extension was fatal. The Court found that the conduct was mutual, consistent, close to the time of contracting, and not self-serving, making it reliable evidence of the parties’ objective intent to form a binding contract.

SHORT CIVIL DECISIONS

Allison v. Bent, 2025 ONCA 36

[Paciocco, Monahan and Wilson JJ.A.]

COUNSEL:

M. Tubie and J. Nwawe, for the appellant

D. A. Vieira, for the respondent

Keywords: Wills and Estates, Trusts, Express Trusts, Purchase Money Resulting Trusts, Real Property, Evidence, Statute of Frauds, R.S.O. 1990, c. S.19, s 1(1)

Martin v. 11037315 Canada Inc., 2025 ONCA 44

[Paciocco, Monahan and Wilson JJ.A.]

COUNSEL:

R. D’Mello, for the appellant

D. Van Sickle, for the respondent

Benbella v. National Dental Examining Board of Canada, 2025 ONCA 43

[Tulloch C.J.O., Gilese and Roberts JJ.A.]

COUNSEL:

M. Song and R. Kuchman, for the moving party

Dr. H.B., acting in person

Keywords: Civil Procedure, Costs, Security for Costs, Orders, Varying or Amending, Rules of Civil Procedure, r. 59.06

Mosher v. Bossence, 2025 ONCA 46

[Paciocco, Monahan and Wilson JJ.A.]

COUNSEL:

D. M., acting in person

B. Kelly, for the respondent

Marmer Penner Inc. v. Vacaru, 2025 ONCA 61

[Trotter, Sossin and Madsen JJ.A.]

COUNSEL:

F. V., for the appellant

T. Antoniou and M. Hanna, for the respondents

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.

Table of Contents

Civil Decisions

Jackson v. Rosenberg, 2025 ONCA 48

Ottawa (City) v. ClubLink Corporation ULC, 2025 ONCA 34

VanderMolen Homes Inc. v. Mani, 2025 ONCA 45

Short Civil Decisions

Allison v. Bent, 2025 ONCA 36

Keywords: Wills and Estates, Trusts, Express Trusts, Purchase Money Resulting Trusts, Real Property, Evidence, Statute of Frauds, R.S.O. 1990, c. S.19, s 1(1)

Martin v. 11037315 Canada Inc., 2025 ONCA 44

Benbella v. National Dental Examining Board of Canada, 2025 ONCA 43

Keywords: Civil Procedure, Costs, Security for Costs, Orders, Varying or Amending, Rules of Civil Procedure, r. 59.06

Mosher v. Bossence, 2025 ONCA 46

Marmer Penner Inc. v. Vacaru, 2025 ONCA 61

CIVIL DECISIONS

Jackson v. Rosenberg, ONCA 2025 48

[van Rensburg, Zarnett and George JJ.A.]

Counsel:

M. Basiri, for the appellant

G. Bawolska and M. Kaur, for the respondent

FACTS:

ISSUES:

HOLDING:

Formal judgments varied.

REASONING:

Ottawa (City) v. ClubLink Corporation ULC, 2025 ONCA 34

[Fairburn A.C.J.O., Coroza and Sossin JJ.A.]

COUNSEL:

K. Crain and L. E. Robinson, for the appellant

M. P. Gottlieb, C. G. Smith, J.C. Mastrangelo and M. Flowers, for the respondent

A. Tomkins and C. R. Daoust, for the intervener

FACTS:

The City, whose position was supported by the intervener, Kanata Greenspace Protection Coalition (the “Coalition”), appealed.

ISSUES:

Did the application judge err in:

failing to carry out the Court of Appeal’s direction in remitting ClubLink’s severance argument for further consideration?
applying an unknown and incorrect principle of “inoperability” to contractual provisions that established personal rights?
failing to apply the governing principles of contractual interpretation in identifying the inoperative provisions?

HOLDING:

Appeal dismissed.

REASONING:

Standard of Review:

and 3. No.

The Court found that the remaining two grounds of appeal concerning inoperability and the proper principles of contractual interpretation could be dealt with together.

The remedy in this case

VanderMolen Homes Inc. v. Mani, 2025 ONCA 45

[Sossin, Madsen and Pomerance JJ.A]

FACTS:

M. Simaan, for the appellants

J. Masterman, for the respondent

FACTS:

ISSUES:

Did the motion judge err in treating the expiry of a “conditional agreement” as analogous to the repudiation of a “firm and binding contract”?
Did the motion judge err in failing to appreciate that the expiry of the offer deadline ended the conditional agreement of purchase and sale?
Did the motion judge err in considering the parties’ subsequent conduct?

HOLDING:

Appeal dismissed.

REASONING:

1. No.

2. No.

3. No.

SHORT CIVIL DECISIONS

Allison v. Bent, 2025 ONCA 36

[Paciocco, Monahan and Wilson JJ.A.]

COUNSEL:

M. Tubie and J. Nwawe, for the appellant

D. A. Vieira, for the respondent

Keywords: Wills and Estates, Trusts, Express Trusts, Purchase Money Resulting Trusts, Real Property, Evidence, Statute of Frauds, R.S.O. 1990, c. S.19, s 1(1)

Martin v. 11037315 Canada Inc., 2025 ONCA 44

[Paciocco, Monahan and Wilson JJ.A.]

COUNSEL:

R. D’Mello, for the appellant

D. Van Sickle, for the respondent

Benbella v. National Dental Examining Board of Canada, 2025 ONCA 43

[Tulloch C.J.O., Gilese and Roberts JJ.A.]

COUNSEL:

M. Song and R. Kuchman, for the moving party

Dr. H.B., acting in person

Keywords: Civil Procedure, Costs, Security for Costs, Orders, Varying or Amending, Rules of Civil Procedure, r. 59.06

Mosher v. Bossence, 2025 ONCA 46

[Paciocco, Monahan and Wilson JJ.A.]

COUNSEL:

D. M., acting in person

B. Kelly, for the respondent

Marmer Penner Inc. v. Vacaru, 2025 ONCA 61

[Trotter, Sossin and Madsen JJ.A.]

COUNSEL:

F. V., for the appellant

T. Antoniou and M. Hanna, for the respondents

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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Civil Decisions

Short Civil Decisions

CIVIL DECISIONS

SHORT CIVIL DECISIONS