Court of Appeal Summaries (December 31 – January 9)

Civil Decisions

Cycle Toronto v. Ontario (Attorney General), 2025 ONCA 908

Keywords: Municipal Law, By-Laws, Public Law, Highways, Constitutional Law, Charter Rights, Right to Life, Liberty and Security of the Person, Civil Procedure, Interveners, Friends of the Court, Canadian Charter of Rights and Freedoms, ss. 1, 7, 15, Highway Traffic Act, R.S.O. 1990, c. H.8, s. 195.6, Rules of Civil Procedure, r. 13.03(2), Convention on the Rights of the Child, Can. T.S. 1992 No. 3., Article 3.1, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Foster v. West, 2021 ONCA 263, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, Bedford v. Canada (Attorney General), 2009 ONCA 669, Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, Drover v. Canada (Attorney General), 2025 ONCA 468

Leduc v. Dufour, 2026 ONCA 3

Keywords: Contracts, Solicitor and Client, Contingency Fee Agreements, Solicitors Act, R.S.O. 1990, c. S.15, s. 24, Contingency Fee Agreements, O. Reg. 195/04, Rules of Civil Procedure, r. 7, Housen v. Nikolaisen, 2002 SCC 33, Chrusz v. Cheadle LLP, 2010 ONCA 553, Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), 2012 ONCA 496, Bogue v. Miracle, 2025 ONCA 188, Raphael Partners v. Lam (2002), 61 O.R. (3d) 417 (C.A.), Cogan (Re) (2007), 88 O.R. (3d) 38 (S.C.)

Short Civil Decisions

David v. Loblaw Companies Limited, 2026 ONCA 5

Keywords: Competition Law, Price-Fixing, Consumer Protection, Civil Procedure, Class Proceedings, Certification, No Reasonable Cause of Action, Amending Pleadings, Adding Parties, Res Judicata, Appeals, Costs, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1), 8, 8(3), 12, ss. 8(3), 12, David v. Loblaw Companies Limited, 2025 ONCA 830

Ellenor v. Chernysh, 2026 ONCA 10

Keywords: Contracts, Real Property, Residential Tenancies, Remedies, Eviction, Civil Procedure, Appeals, Leave to Appeal, Extension of Time, Stay Pending Appeal, Courts of Justice Act, R.S.O. 1990, c. C.43., ss. 6(1)(a), 21(5), Bernard Property Maintenance v. Taylor, 2019 ONCA 830, Coote v. Ontario (Human Rights Commission), 2010 ONCA 580, Amstar Pool ILP v. Tweneboa-Kodua, 2025 ONCA 493, Pannone v. Peacock, 2022 ONCA 520, Lum v. College of Physiotherapists of Ontario, 2020 ONCA 271

CIVIL DECISIONS

Cycle Toronto v. Ontario (Attorney General), 2025 ONCA 908

[Zarnett J.A. (Motion Judge)]

Counsel:

J. Hunter, C. Zwibel and E. Guilbault, for the appellants

D. Eady, A. Lewis, G. Hoaken, B. Murphy, C. Dunne, L. Beck and B. Roe, for the respondents

G. Avraam, J.R. Bernardo and R. Carroll, for the proposed intervener, Canadian Constitution Foundation

M. Savard and C. Milne, for the proposed intervener, David Asper Centre for Constitutional Rights

L. Century, A. Chen and U. Nageswaran, for the proposed intervener, Greenpeace Canada

N.D. Stefano, for the proposed intervener, Canadian Public Health Association

V. Zbogar, M. Daniel and V. Sharma, for the proposed intervener, For Our Kids Toronto

Facts:

The judgment under appeal made two declarations. The first concerned s. 195.6 of the Highway Traffic Act (the “HTA”), as it read from November 11, 2024 to June 4, 2025, a provision that required the removal of bicycle lanes on certain Toronto streets and their restoration for use by motor vehicle traffic. The judgment declared that that section infringed s. 7 of the Canadian Charter of Rights and Freedoms and could not be justified under s. 1 of the Charter. The second declaration was made in light of the repeal of s. 195.6 of the HTA, and its replacement with differently worded provisions on June 5, 2025. The judgment declared that any steps taken to remove the physical separation between motor vehicle traffic and the bicycle lanes on those Toronto streets, including by reconfiguring them, would be in breach of s. 7 of the Charter and not saved by s. 1.

Numerous public interest organizations sought leave to intervene as friends of the court and requested that they be allowed to file a factum and present oral argument at the hearing of the appeal.

Issues:

1. Should Canadian Constitution Foundation (“CCF”) be granted leave to intervene?

2. Should Davis Asper Centre for Constitutional Rights (“Asper Centre”) be granted leave to intervene?

3. Should Greenpeace Canada (“Greenpeace”) be granted leave to intervene?

4. Should Canadian Public Health Association (“CPHA”) be granted leave to intervene?

5. Should For Our Kids Toronto (“FOKT”) be granted leave to intervene?

Holding:

Motion by CCF and Greenpeace granted. Motions by Asper Centre, CPHA and FOKT granted in part.

Reasoning:

Based on Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., the Court asked whether the proposed interveners would provide a useful, distinct, and non-duplicative perspective on the legal issues raised by parties, without expanding the scope of the appeal or requiring new facts. In applying this test, the Court looked for interventions that assisted on points of law within the existing record.

1. The CCF was granted leave because its proposed analytical framework was germane to the positive/negative rights dichotomy that was raised as an issue on the appeal, and provided a useful additional and distinct perspective for the Court to consider.

2. Yes, in part. The Asper Centre was granted leave on the positive/negative rights issue, and on the interpretation of the majority decision in Drover because it offered a distinct and useful perspective. Leave was refused to address the binding effect of a prior decision of the Court once it had been properly interpreted.

3. Yes. Greenpeace was granted leave because it offered a distinct and useful perspective about why this was not a positive rights case, based on exclusivity and protection from third-party harm principles it said flowed from Supreme Court of Canada jurisprudence and the direct causal link that arose from Ontario’s exclusive control over the regulation of public roads in the province.

4. Yes, in part. The CPHA was granted leave only on the issue of the use of equality principles as an interpretive tool in the analysis of fundamental justice and gross disproportionality under s. 7 of the Charter because those submissions provided a useful perspective on an existing issue without expanding the scope of the appeal. Leave was refused on the issue of the positive and negative rights dichotomy in the s. 7 framework because the CPHA’s perspective was not distinct from that of the respondents.

5. Yes, in part. The FOKT was granted leave to address how the gross disproportionality analysis was to be conducted where the interests of children were affected, as that would be useful to the Court without unfairly expanding the issues on the appeal. Leave was refused to address the factual record and the inferences to be taken from it, as well as the deference to be shown to the findings of the case, as they were quintessentially matters for the parties who developed the record and were not issues on which an intervener’s perspective was needed.

Leduc v. Dufour, 2026 ONCA 3

[van Rensburg, Miller and Sossin JJ.A.]

Counsel:

G. Adair, K.C., for the appellant Wallbridge Wallbridge

J. Lisus and Z. Naqi, for the respondents

Facts:

The respondent, T.L., suffered a brain injury during his birth at the Sudbury Regional Hospital in 2009. A year later, he was diagnosed with cerebral palsy. In 2011, his mother, the respondent A.V., retained A.W. of the appellant law firm, Walbridge Walbridge, to investigate a claim of medical malpractice.

Following a lengthy period of investigation, A.W. and A.V. executed a contingency fee agreement with the law firm in August 2015 (the “2015 CFA”), and another in May 2018 (the “2018 CFA”). Both agreements provided that the appellant would be paid one third of the compensation (including interest but not costs and disbursements) received from T.L’s claim, provided the action settled before trial. If the appellant was required to prepare for or to conduct a trial, the 2018 CFA provided that the appellant was entitled to charge 25 percent of the settlement or judgment, plus a prescribed hourly rate for trial preparation and trial time, disbursements and HST.

The action eventually settled in January 2023, for an all-inclusive sum of $14 million. In February 2023, the Wallbridge firm, on behalf of the respondents, moved under r. 7 of the Rules of Civil Procedure, for approval of the settlement and the fee payable under the 2018 CFA. After deduction of the defendants’ costs contribution and disbursements, the damages portion of the settlement was calculated to be approximately $12.325 million. The appellant’s contingency fee (exclusive of HST) equaled approximately $4.108 million.

The motion judge ultimately approved the overall settlement. However, he found the 2018 CFA to be neither fair at the time it was made, nor reasonable at the time of the motion. He disallowed the proposed fee and approved a fee of $3.25 million plus HST and disbursements in its place.

Issues:

1. Did the motion judge err in determining that the 2018 CFA was not fair at the time it was made?

2. Did the motion judge err in determining that the 2018 CFA was not reasonable at the time of the motion?

Holding:

Appeal dismissed.

Reasoning:

1. No. The Court found that the motion judge recognized that the regulations governing CFAs serve as a form of consumer protection legislation, and that the requirements of the regulation governing CFAs were a “means of providing crucial pieces of information designed to ensure that the lawyer-client imbalance was attenuated”. The Court noted that it was not unreasonable for him to observe that compliance with the governing legislation was particularly important in that case. Moreover, the Court noted that contrary to the appellant’s submission, the motion judge’s conclusion that A.V. was a vulnerable client was firmly grounded in the evidence and revealed no reversible error.

The Court did not agree with the appellant’s submission that the motion judge failed to consider relevant evidence. The Court outlined that the formula set out in the 2018 CFA could have resulted in the appellant receiving more than the party, which is prohibited pursuant to the Regulation, s. 7. The Court saw no basis to interfere with the motion judge’s finding that the appellant had not shown the 2018 CFA was fair.

2. Not decided. In light of the finding on the first issue, it was not necessary to consider the motion judge’s additional finding that the 2018 CFA was not reasonable. The Court indicated that nothing in its reasons should be taken as an endorsement of the motion judge’s analysis on this prong of the Raphael Partners test. The Court did not agree with the motion judge’s approach to the assessment of the risk undertaken by the appellant that focused on the risk of non-payment at the time the case was settled. The reasonableness of the fee should be assessed by reference to the risk as it appeared at the time the agreement was negotiated, and not as of the time of the assessment, when it may falsely appear with the benefit of hindsight that the risk of failure was minimal all along.

SHORT CIVIL DECISIONS

David v. Loblaw Companies Limited, 2026 ONCA 5

[Hourigan, Zarnett and Sossin JJ.A.]

Counsel:

R. Mogerman, K.C., J. Strosberg, and S. Robinson, for the appellants M.D., B.B., and A.B. (COA-24-CV-1333)

J.T. Curry and A. Locatelli, for the appellant (COA-24-CV-1355)/respondent (COA-24-CV-1333) Canada Bread Company, Limited

C.P. Naudie, A. Hirsh, and G. Rotrand, for the respondent Maple Leaf Foods Inc.

Ellenor v. Chernysh, 2026 ONCA 10

[Roberts J.A. (Motion Judge)]

Counsel:

V.C., acting in person

A. Spadafora, for the responding party

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Court of Appeal Summaries (December 31 – January 9)

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Civil Decisions

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CIVIL DECISIONS

SHORT CIVIL DECISIONS