Court of Appeal Summaries (June 9-13)

In Davis v. Amazon Canada Fulfillment Services, the Court upheld the dismissal of a proposed class action against Amazon alleging that all of its delivery drivers (both those directly contracting with Amazon and those who are employed by third party delivery companies) are employees of Amazon with employment law claims. The Court agreed with the certification motion judge that there was no possibility for Amazon and the third party delivery companies to be found to be common employers of the drivers.

Islamic Food and Nutrition Council of Canada v. Islamic Food and Nutrition Council of America was a case relating to the internal corporate governance and passing of bylaws of non-share capital not-for-profit corporations with members rather than shareholders.

Ontario (Labour, Immigration, Training and Skills Development) v. Benevides is an occupational health and safety provincial offences prosecution where the Crown was granted leave to appeal from the trial judge’s dismissal of the charges by way of a directed verdict (which acquittal was upheld on appeal). Among the issues to be argued on the further appeal to the Court will be what constitutes the actus reus of a violation under the Ontario Health and Safety Act and whether an employee’s employment contract is relevant to determining their duties under the OHSA.

In Metske v. Metske, the Court allowed an appeal in a family farming succession dispute. It overturned the main $405,000 award that had been based on proprietary estoppel, leaving only some smaller damages awards in place.

Chitaroni Estate v. Coleman (Township) was a dispute with a township over whether a road had been dedicated to or assumed by the town. By the time of the hearing of the appeal, the road had become a public road. The appeal was dismissed.

720443 Ontario Inc. v. 2682543 Ontario Inc. concerned an appeal in a commercial tenancy dispute in which the trial judge found that the appellant tenant had repudiated its lease by not commencing fixturing or taking possession of the leased premises by the required date, while the landlord was also in the middle of meeting its own fixturing obligations (as provided for in the lease). The Court dismissed the appeal and agreed with the trial judge that the respondent landlord properly accepted the tenant’s repudiation and lawfully terminated the lease.

Kirby v. Woods provides guidance on the protection of refugee children’s privacy in family law/child protection/abduction proceedings. The Court applied the Sherman Estate framework for sealing orders to come up with a tailored confidentiality/sealing order that provides privacy protection partly by anonymizing the parties’ names.

Civil Decisions

Davis v. Amazon Canada Fulfillment Services, 2025 ONCA 421

Keywords: Class Action, Motion, Certification Analysis, Arbitration Agreement, Common Employer Doctrine, Some Basis in Fact Standard, Plain and Obvious, Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”), Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”), s. 5, Arbitration Act, 1991, S.O. 1991, c. 17, s. 7, Toronto Standard Condominium Corp. No. 1628 v Toronto Standard Condominium Corp. No. 1636, 2020 ONCA 612, Uber Technologies Inc. v. Heller, 2020 SCC 16, TELUS Communications Inc. v. Wellman, 2019 SCC 19, Seidel v. TELUS Communications Inc., 2011 SCC 15, O’Reilly v. ClearMRI Solutions Ltd., 2021 ONCA 385, Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444, Fulawka v. Bank of Nova Scotia, 2012 ONCA 443, McCracken v. Canadian National Railway Co., 2012 ONCA 445, Housen v. Nikolaisen, 2002 SCC 33, Cassano v. The Toronto-Dominion Bank, 2007 ONCA 781, Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401 (C.A.), Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, PMC York Properties Inc. v. Siudak, 2022 ONCA 635

Islamic Food and Nutrition Council of Canada v. Islamic Food and Nutrition Council of America, 2025 ONCA 425

Keywords: Corporations, Not-for-Profit, Bylaws, Ultra Vires, Civil Procedure, Limitation Periods, Remedies, Declaratory Relief, Corporations Act, R.S.O. 1990, c. C.38, Canada Not-for-Profit Corporations Act, S.C. 2009, c. 23, Limitations Act, 2002, S.O. 2002, C. 24, Farej v. Fellows, 2022 ONCA 254, Kyle v. Atwill, 2020 ONCA 476

Ontario (Labour, Immigration, Training and Skills Development) v. Benevides, 2025 ONCA 426

Keywords: Labour and Employment, Occupational Health and Safety, Provincial Offences, Actus Reus, Defences, Due Diligence, Civil Procedure, Directed Verdicts, Appeals, Leave to Appeal, Provincial Offences Act, R.S.O. 1990, c. P.33, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, ss. 28(1)(a), Ontario Regulation 213/91: Construction Projects, ss. 37(1), 172(1), United States of America v. Shephard, [1977] 2 S.C.R. 1067, R. v. Timminco Ltd. (2001), 54 O.R. (3d) 21 (C.A.), R. v. Greater Sudbury (City), 2023 SCC 28

Metske v. Metske, 2025 ONCA 418

Keywords: Real Property, Unjust Enrichment, Proprietary Estoppel, Detrimental Reliance, Gifts, Contracts, Intention to Create Binding Legal Relations, Defences, Equitable Set-Off, Cowper-Smith v. Morgan, 2017 SCC 61, Thorner v. Major, [2009] UKHL 18, Hawes v. Dave Weinrauch and Sons Trucking Ltd., 2017 BCCA 114, Kennett v. Diarco Farms Ltd., 2020 SKQB 124, Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance Company of Canada, 2021 SCC 47, Fort Frances v. Boise Cascade Canada Ltd., [1983] 1 S.C.R. 171, Hydro-Québec v. Matta, 2020 SCC 37, Moore v. Sweet, 2018 SCC 52, Bruce MacDougall, Estoppel, 2nd ed., Toronto: LexisNexis Canada, 2019

Chitaroni Estate v. Coleman (Township), 2025 ONCA 424

Keywords: Real Property, Common Roads, Dedication, Acceptance, Municipal Law, Public Roads, Assumption, Torts, Misfeasance in Public Office, Civil Procedure, Summary Judgment, Partial Summary Judgment, Appeals, Fresh Evidence, Costs, Leave to Appeal, Rules of Civil Procedure, rr. 1.09[4], 3.02(4)[2], Municipal Act, 2001, S.O. 2001, c. 25, Road Access Act, R.S.O. 1990, c. R.34, s. 1, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Malik v. Attia, 2020 ONCA 787, Hryniak v. Mauldin, 2014 SCC 7, VP Auto Sales & Service Ltd. v. Ahmed2 Inc., 2024 ONCA 507, Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25

720443 Ontario Inc. v. 2682543 Ontario Inc., 2025 ONCA 432

Keywords: Contracts, Real Property, Commercial Leases, Possession, Fixturing Period, Joint Occupancy, Repudiation, TNG Acquisition Inc. (Re), 2011 ONCA 535

Kirby v. Woods, 2025 ONCA 437

Keywords: Family Law, Child Protection, Child Abduction, Parenting, Relocation, Immigration, Refugees, Constitutional Law, Charter Claims, Privacy, Civil Procedure, Sealing Orders, Sherman Estate Test, United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Article 3.1, Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, Immigration and Refugee Protection Act, S.C. 2001, c. 27, Courts of Justice Act, R.S.O. 1990, c. C. 43, ss. 137(1)(2), Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 70(1), Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), Family Law Rules, O. Reg. 114/19, Sherman Estate v. Donovan, 2021 SCC 25, Vancouver Sun (Re), 2004 SCC 43, Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, , Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, A.B. v. Bragg Communications Inc., 2012 SCC 46, R. v. Jarvis, 2019 SCC 10, P1 v. XYZ School, 2022 ONCA 571, S.E.C. v. M.P., 2023 ONCA 821, R. v. Mentuck, 2001 SCC 76, Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, F.N. (Re), 2000 SCC 35, Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835

CIVIL DECISIONS

Davis v. Amazon Canada Fulfillment Services, 2025 ONCA 421

[Pepall, Paciocco, Sossin J.J.A.]

Counsel:

J. Leclerc and L. Sokolov, for the appellant

D. Di Paolo, N. Effendi, L. Wagner, G. Splawski, and H. Murray, for the respondents

Facts:

The appellant brought a class action against the respondent (“Amazon”), arguing that the putative class members who deliver goods for Amazon are its employees. The appellant alleges that Amazon was liable to the class for breach of employment contracts, breach of duties of good faith, unjust enrichment, negligence, and a declaration that any agreement excluding the putative class members from the employment law statutes is void and unenforceable.

The motion judge characterized the class in two parts: one involving the delivery partners (“DPs”), who were employed directly by Amazon, and the other involving driver associates (“DAs”) who were employed by third-party delivery service partner companies (“DSPs”). DSPs and its DAs deliver Amazon packages through either Amazon’s DSP 1.0 program or its DSP 2.0 program. Each program is required to include certain terms in its contracts with DA’s. Under DSP 1.0, the terms and agreements vary, so some DA’s signed a mutual arbitration agreement as part of their contract, while others did not. However, under the DSP 2.0 program, all DA’s have mutual arbitration agreements in their contracts. DPs on the other hand, are recruited by enrolling in Amazon’s Flex Program, and when they register, they are required to agree to the Flex Terms of Service, which includes an arbitration agreement.

The motion judge granted the motion to stay for the class members who had signed arbitration agreements and dismissed the motion to certify the class action for the class members who had not signed arbitration agreements. Despite the stay, the motion judge still conducted a certification analysis, which was relevant for the DAs who did not sign an arbitration agreement, as this analysis could also be relevant to other class members, considering the possibility that the stay imposed could be challenged and set aside. Through this analysis, the motion judge stated that he would have conditionally certified a class action on behalf of the DPs against Amazon, but not the DA class members. Regarding the DP action, the motion judge stated that he would not have certified aggregate or punitive damages as a common issue, nor the claims by the DPs for breach of a duty of good faith, unjust enrichment, or negligence.

Issues:

1. Did the motion judge err in his certification analysis?

a. Did the motion judge err in finding no common issues, by failing to apply the “some basis in fact standard” and by ignoring the evidence of common control that Amazon exercised over all class members?

b. Did the motion judge err in finding that it was “plain and obvious” that the common employer doctrine could not encompass this case?

Holding:

Appeal dismissed.

Reasoning:

The Court did not consider whether the motion judge erred in granting a stay and decided that the proper application of the doctrine of unconscionability to contracts of adhesion in the employment context would be dealt with at another time.

1. No.

The Court saw no error with the motion judge’s certification analysis.

a. No.

The Court concluded that whether a proposed class action satisfies the “some basis in fact” standard under the Class Proceedings Act, 1992 (CPA) is contextual and subject to significant deference. When analyzing the pleadings, they should be read in a generous and purposive manner in order to give effect to the goals of the CPA. These goals include “promoting access to justice, encouraging behavior modification and promoting the efficient use of judicial resources.” The motion judge correctly applied the low evidentiary threshold relevant to the certification analysis, recognizing that the moving party must demonstrate “some basis in fact” to meet the certification requirements other than establishing a cause of action.

b. No.

The motion judge determined that the “plain and obvious” test for disclosing a cause of action, as stated in Hunt, applied. Under this framework, a claim is considered to have a reasonable cause of action unless it has a fundamental flaw. The appellant’s main argument was that “Amazon and Amazon DSPs should be treated as one employer for the purposes of [Employment Standards Act, 2000] [ESA] and Equivalent Legislation and the Plaintiff Class members’ entitlement to statutory minimum payments under it and their entitlements at common law.” The motion judge could not conclude that Amazon was the common employer for all members of the class action. This conclusion was reached by analyzing the two prongs to establish a common employer, as outlined in O’Reilly: first, there must be a significant degree of interrelationship and/or common control between the alleged common employers, and second, the Court must assess whether the employee held a reasonable expectation that each of the alleged common employers were parties to the employment arrangement governing the employee at the relevant times. The motion judge found that it was plain and obvious that Amazon and the Amazon DSPs were their own respective businesses, and not a singular enterprise. Based on the written agreements and other material facts, the motion judge determined that it was plain and obvious that there was no reasonable basis to infer an intention for Amazon to be a party to the employment agreements between the DSPs and their drivers. Amazon also did not assume obligations as an employer toward the workers of the DSPs. In addition, the motion judge stated that the claim was not properly constituted because the appellant did not name the DSPs as defendants, and they were necessary parties. The appellants’ argument that the use of Flex App constituted a common issue was also rejected by the motion judge.

The Court did not see an error with the motion judge’s findings. The Court found that the finding that Amazon was not a common employer disposed of the entire class action, meaning that it was not necessary to consider the motion judge’s other findings. Due to this, the Court also found that the motion judges’ consideration of preferable procedure was moot and unassailable.

Islamic Food and Nutrition Council of Canada v. Islamic Food and Nutrition Council of America, 2025 ONCA 425

[Simmons, Wilson and Madsen JJ.A.]

Counsel:

J. Picone, S. Voudouris, and L. Cloutier, for the appellant/respondent by way of cross-appeal

D. Urquhart and S. Kesar, for the respondent/appellant by way of cross-appeal

Facts:

This dispute arose between two not-for-profit corporations providing Halal certification services: the Islamic Food and Nutrition Council of Canada (“Canadian corporation”) and the Islamic Food and Nutrition Council of America (“US corporation”). The Canadian corporation was incorporated in 2007 under Ontario’s Corporations Act by Letters Patent. The 2007 Letters Patent stipulated the three applicants of the Canadian corporation as its original members, but did not create any classes of membership. The Letters Patent accordingly granted voting rights to each member of the corporation.

In 2015, the Canadian corporation held its annual general meeting at the US corporation’s HQ in Chicago. The US corporation at the meeting sought membership in the Canadian corporation and proposed Bylaw 2015-1 (2015 Bylaw). This created two classes of members: “Corporate Members” (with voting rights) and “Director Members” (without voting rights but with meeting attendance rights). This effectively removed voting rights from the Canadian corporation’s personal members while granting sole voting control to the US corporation as the only Corporate Member.

In 2021, the Canadian corporation filed Articles of Continuance under the Canada Not-for-profit Corporations Act (“federal Act”) without evidence of notifying the US corporation. The Articles specified one class of members with each member entitled to vote. This change to the 2015 Bylaw would have restored voting rights to individual members.

In 2023, there was a dispute about membership and voting rights following Board meetings. The application judge rejected the Canadian corporation’s claims regarding the 2015 Bylaw’s validity, while also considering the ambiguity of the US corporation’s voting structure. The application judge concluded any amendments to the membership classes required a special resolution among the members. The amendments were invalid because there was no special resolution. The Canadian corporation appealed and the US corporation cross-appealed.

Issues:

1.Did the application judge err in finding the 2015 Bylaw valid?

a. Did the application judge err in rejecting the signatories’ claim that they were duped?

b. Did the application judge err in finding that the meeting minutes were ambiguous as to whether one of the directors participated, post Articles of Continuance, as the representative of a single-tier member or of the sole voting member in a two-tier structure?

c. Did the application judge err in his interpretation of the federal Act?

d. By finding the 2015 Bylaw valid, did the application judge err in ignoring bedrock principles of corporate law?

2. Did the application err by failing to consider the US corporation’s application was barred under the Limitations Act, 2002?

3. Did the application judge err in failing to grant the ancillary relief requested by the US corporation?

Holding:

Appeal and cross-appeal dismissed.

Reasoning:

1. No.

The Court agreed with the application judge’s finding that the 2015 Bylaw was properly passed and valid. There was no palpable and overriding error in the application judge’s factual findings.

a. No.

The Court agreed with the application judge’s conclusion that the directors had not been duped. All directors attended the Chicago meeting and signed the bylaw circulated in advance of the meeting. Officers and directors were obligated to read documents before signing. The membership structure changes were clear and “not buried” in the documentation.

b. No.

The Court upheld the application judge’s conclusion that the meeting minutes were ambiguous. It was not clear whether the director in charge of taking minutes was physically present at the meeting, or whether the minutes had been formally approved.

c. No.

The Court agreed with the application judge’s interpretation of sections 211(2) and 197(1)(f) of the federal Act. When a corporation continues under federal incorporation, it can amend its articles without stating so in the continuance articles. However, such amendments must comply with the same requirements as original federal incorporations. Changing the designation of any class or group (e.g., elevation of non-voting members to voting status and the demotion of the sole voting member to minority status) indeed required a special resolution of the members. This special resolution was never obtained.

d. No.

The Court upheld the application judge’s holding that there was no corporate law violation. The amendments contravened the federal Act’s requirements applicable to the 2015 Bylaw. The amendments were ultra vires the corporation and accordingly ineffective.

2. No.

The Canadian corporation did not pursue this claim in its oral argument for the application judge. In the absence of further submissions on the point, the Court accepted the US corporation’s submission that there was no limitation period for its claim for relief because it was limited to declaratory relief (for which there is no limitation period).

3. No.

The Court agreed with the application judge that the federal Act’s provisions applicable to the US corporation’s submission were discretionary. The US corporation acknowledged in oral argument that it could likely obtain the relief it sought on its own based on the declaration that was granted. There was therefore no basis on which to interfere with the application judge’s discretionary decision.

Ontario (Labour, Immigration, Training and Skills Development) v. Benevides, 2025 ONCA 426

[Paciocco J.A.]

Counsel:

S. MacDonald and W. Wilson, for the moving party

K. Davidson and H. Toor, for the responding party

Facts:

A 4000-pound load fell 300 feet from a crane operated by Hardwell Construction Limited (“Hardwell”). A Hardwell employee was charged with four counts under section 28(1)(a) of the Occupational Health and Safety Act (“OHSA”) and ss.37(1) and 172(1)(a)-(c) of Ontario Regulation 213/91: Construction Projects. There was no evidence his actions contributed to the accident. The trial judge granted a motion for a directed verdict of acquittal on all four charges, which was upheld on appeal. The Crown sought leave to the Ontario Court of Appeal.

Issues:

1. Should leave to appeal be granted to argue that the directed verdict test was misapplied?

2. Should leave to appeal be granted to argue that the appeal judge misconceived how responsibility for the obligations under the OHSA is to be determined?

3. Should leave to appeal be granted to argue that a private business contract was misused to identify the Hardwell employees’ responsibilities?

4. Should leave to appeal be granted to argue that the trial judge erred by considering due diligence and foreseeability when resolving the directed verdict motion?

Holding:

Motion granted.

Reasoning:

1. Yes.

The Court granted leave to appeal on the issue of whether the directed verdict test was misapplied due to a misunderstanding of the actus reus under the OHSA and ss. 37(1) of Ontario Regulation 213/91: Construction Projects.

The Crown argued that liability arises under ss. 28(1)(a) of the OHSA even if a worker’s specific acts did not create or contribute to a danger. The trial judge disagreed, requiring a direct link between the worker’s actions and the hazard. The Court was of the view that this raised an important legal question about the scope of worker obligations and the proper interpretation of the obligations of workers is best left to a panel of the Court.

2. Yes.

The Court granted leave to appeal on whether the lower courts erred by focusing on why the load failed and who was responsible, rather than on whether the Hardwell worker breached his own duties under the OHSA. The Crown argued this violated the “belt and braces” principle, which holds that the OHSA duties are overlapping and concurrent. Given the close connection of this argument to the actus reus issue, the Court allowed it as a companion ground of appeal.

3. Yes.

The Court granted leave to appeal on whether the trial judge erred by relying on a private contract to assess the Hardwell employee’s safety obligations under the OHSA. The Crown argued statutory duties must be determined by the OHSA, not private agreements. The Court agreed this could be an error if the Crown’s interpretation of the actus reus is correct, but found the issue sufficiently connected to the broader appeal and granted leave to appeal on this issue.

4. Yes.

The Court declined to grant leave to appeal on whether the trial judge erred by considering due diligence and foreseeability in the directed verdict motion. It found that the appeal decision had correctly applied the law and that even if the trial judge mentioned those concepts, their decision did not turn on them. There was no legal error or risk of injustice; therefore, the Court denied leave to appeal on this ground.

Metske v. Metske, 2025 ONCA 418

[Lauwers, Zarnett and Pomerance JJ.A.]

Counsel:

D. Wozniak and J. Virtue, for the appellants/respondents by way of cross-appeal

R. Scriven and G.E. Oldfield, for the respondents/appellants by way of cross-appeal

Facts:

M and R owned and operated a 152-acre home farm with dairy barn and other properties including Langside farm. Between 2003 and 2011, M’s son, T, worked on the farm. M told T “the farm would be his someday” but this was inconsistent and not well-defined. T eventually moved out and began living with A.

In early 2012, M and R planned to sell their cows and dairy quota. T and A met with M and R in March 2012 to discuss acquiring the dairy farm “in stages”. M mentioned a $2 million price ($1M for quota, $1M for land), but there was no solid commitment. At most, the parties discussed a framework where T and A would: (i) first purchase the dairy herd, (ii), then acquire quota and land at market value over time, and (iii) purchase the land in five years’ time.

Later in 2012, T and A obtained a $90,000 bank loan (co-signed by M) to purchase the dairy herd. T and A then left their jobs and moved to Langside farmhouse. A prepared a business plan stating they would lease quota in 2012, buy quota in 2013 for $1.12 million, and then buy “M.’s dairy barn” in 2018. T and A operated the dairy farm while M and R continued other farming operations. There was the understanding of a monthly rent arrangement. A would provide lists for barn/quota rent and feed costs, while R issued cheques for milk revenue minus expenses.

Eventually, two sources of friction emerged that broke down the relationship: (i) There was disagreement over who pays repair costs (ultimately T and A paid), and (ii) M and R’s criticism of T and A’s dairy management. Despite unsuccessful attempts to secure bank financing for quota purchase, there were no further discussions on succession between 2013 and 2017. The relationship continued to deteriorate until April 2018, when T and A left the farm. They were forced to sell their herd and equipment at a considerable loss.

T and A brought an action against M and R claiming $1,300,000 for unjust enrichment based on the improvements and repairs that they made to the farm. The trial judge mostly dismissed this claim because the lost gains could not be realized without ignoring M and R’s autonomy and freedom of choice. He nevertheless awarded T and A $400,000 as compensation for lost opportunity costs and value from the forced sale. M and R appealed.

Issues:

1. Did the trial judge err in awarding T and A $405,000 in damages based on proprietary estoppel?

2. Did the trial judge properly dismiss most of T and A’s unjust enrichment claims?

3. Did the trial judge err in rejecting M and R’s claim for equitable set-off regarding alleged quota rent underpayments?

Holding:

Appeal allowed in part.

Reasoning:

1. Yes.

On proprietary estoppel, the Court found the trial judge committed palpable and overriding error in concluding that M and R had assured transfer of the farm on “favourable, but undefined, terms.” The evidence showed only tentative discussions that never crystallized into a concrete plan. Essential terms (e.g., how to determine fair market value) remained entirely undefined, and succession that depended on future negotiations that never happened. The Court distinguished Cowper-Smith v. Morgan by noting that that case involved an express quid pro quo promise; the case at bar only had an “agreement to agree” to potentially negotiate a future sale. The Court upheld the trial judge’s assessment that the transfer would not be a gift. The evidence considered involved several factors, such as cultural norms, financial assistance, etc. These factors nevertheless did not reinforce the required donative intent.

Following Hawes v. Dave Weinrauch, the Court of Appeal held that wanting to negotiate does not constitute an enforceable promise for proprietary estoppel purposes. T and A could not reasonably rely on succession expectations when they knew that they lacked financing ability and also that succession discussions had stopped by 2013.

2. Yes.

Unjust enrichment ultimately failed because of the rental agreement’s juristic reason for the defendants’ enrichment from the increased value of the milk quota. The Court rejected claims for quota premiums and farm value increases that could be realized only by forcing an unwanted sale. This would respect M and R’s autonomy to remain on their property. Nevertheless, the Court upheld awards of $5,000 for a furnace and $28,700 for property improvements as incontrovertible benefits.

3. No.

The Court found no error in dismissing the claim for equitable set-off. M and R had agreed to lower quota rent payments by accepting them without complaint for four years despite knowing of quota increases. The fact that M and R accepted modified payment terms over a longer period constituted acquiescence. The Court accordingly dismissed the claim because it would be inequitable for M and R to resurrect underpayment claims.

Chitaroni Estate v. Coleman (Township), 2025 ONCA 424

[Simmons, Wilson and Madsen JJ.A.]

Counsel:

M. Vernon and J. Friedman, for the appellants

D. Boghosian, G. Pakozdi, and S. Gordon, for the respondent the Corporation of the Township of Coleman

Facts:

The appellants issued a claim for a declaration that a disputed portion of a specific road (“Road A”) connecting to a developed subdivision is either a public road, a common road, or an access road. They also claimed damages against the respondent, the Township of Coleman (the “Township”), for alleged public misfeasance/malfeasance in not taking certain steps earlier to assume the disputed portion of Road A.

The Township brought a motion for summary judgment which the motion judge heard and decided in three parts. In Part 1, the motion judge determined that summary judgment was the appropriate process, addressed the use of partial summary judgment, and dismissed the appellants’ claim for a declaration that the disputed portion of Road A is a public road. In Part 2, the motion judge dismissed the appellants’ claim that the disputed portion of Road A was a common road, while permitting the access road and misfeasance claims to proceed to trial. In Part 3, the motion judge made rulings with respect to specific allegations related to the access road issue and the misfeasance claim, both of which had already been ordered to proceed to trial. Some of the rulings specified that the appellants were precluded from advancing aspects of their misfeasance claim at trial. In April 2024, costs of $33,000 were ordered payable to the Township.

The appellants appealed from the orders made in Part 1, Part 2 and Part 3, and sought a leave to appeal the costs order. Additionally, both the appellants and the Township brought a motion seeking the admission of fresh evidence on appeal.

Issues:

1. Should the two motions seeking the admission of fresh evidence on appeal granted

2. Did the motion judge err in determining that this matter was appropriate for partial summary judgment?

3. Did the motion judge err in concluding that the disputed portion of Road A was neither a public road nor a common road?

4. Did the motion judge err in requiring that a minimum amount of expenditure of public money was required to meet the definition of “common road”?

5. Did the motion judge err in his exercise of discretion in relation to costs?

Holding:

Appeal and motions dismissed.

Reasoning:

A preliminary issue was raised concerning the timeliness of the appeal of Part 1 and 2 because the appeal was not commenced until after the Part 3 decision and no order was taken out until after the costs decision. The Court found that the parties’ decision to delay the appeals until the final order led to inefficiency and unnecessary delay. Although r. 3.02(4)[2] of the Rules of Civil Procedure may have permitted them to file a written consent to delay the appeal period, they did not comply. The Court concluded that it should ultimately decide the appeal on the merits.

1. No.

By way of an unsolicited letter sent without the appellants’ consent, the Township sought to file additional evidence after the hearing of the appeal (the “supplementary evidence”). This fresh evidence purported to confirm that Road A is now a public road, thereby rendering the appeal moot.

The appellants did not oppose the introduction of the Township’s fresh evidence so long as their own fresh evidence was also admitted. They argued that the appeal had not been rendered moot because the status of Road A before becoming a public road remained intertwined with the claims proceeding to trial.

The Court dismissed the Township’s fresh evidence motion. The unsolicited letter the Township sought to introduce was violation of r. 1.09[4] of the Rules of Civil Procedure. Moreover, the supplementary evidence was apparently available prior to the completion of Part 3 of the summary judgment motion and could have been filed in the court below. The Court concluded that it was not open to the Township to attempt to supplement its fresh evidence motion after the appeal hearing with evidence that had not been provided to the appellants beforehand.

It was unnecessary to address the appellants’ fresh evidence motion.

2. No.

The Court highlighted the purposes of partial summary judgment set out in Hryniak v. Mauldin (access to justice, proportionality, efficiency, and cost-effectiveness). The Court deferred to the motion judge’s determination of the appropriateness of partial summary judgment in this case, finding that it was apparent from his reasoning that he had these principles in mind. Additionally, the Court emphasized that the analysis of the propriety of the summary judgment process is not undertaken retrospectively. Rather, it is undertaken in consideration of the materials and evidence that were placed before the motion judge by counsel.

3. No.

The appellants argued that they were entitled to a declaration that the disputed portion of Road A was a public road based on the common law doctrine of dedication and acceptance. This was applied until 2003, when the Municipal Act came into effect. The parties advanced conflicting positions concerning the required elements of the acceptance branch of the test. The motion judge found that the appellants’ claim failed, regardless of how the test was formulated, because they could neither show acceptance by the Township or the public, nor could they show dedication.

The Court upheld the motion judge’s analysis, finding that he: (i) correctly set out the law, (ii) considered the breadth of the authorities and the conflicting positions on the law advanced, (iii) made findings of fact available to him on the evidence, and (iv) reasonably applied the law to those facts.

4. No.

The appellants argued that if the disputed portion of Road A was not a public road, then it was a common road. This means “an access road on which public money has been expended for its repair or maintenance”, as per the Road Access Act. They asserted that the provision of sand by the Municipality at the entrance of the road “once in a blue moon” was sufficient to render the road a common road. The Court disagreed and upheld the motion judge’s finding that not every courtesy extended by a municipality towards the users of a road will result in a finding that the road is a common road.

5. No.

The Court deferred to the motion judge’s discretion with respect to costs and further held that the appellants failed to meet the high threshold articulated in Canadian Tire Corporation, Limited v. Eaton Equipment Ltd. for granting leave to appeal a costs order.

720443 Ontario Inc. v. 2682543 Ontario Inc., 2025 ONCA 432

[Lauwers, Miller and George JJ.A.]

Counsel:

S.N. Zeitz, for the appellants

A. Blumenfeld, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Possession, Fixturing Period, Joint Occupancy, Repudiation, TNG Acquisition Inc. (Re), 2011 ONCA 535

Facts:

The parties signed a commercial lease for a space that required significant repairs before the appellant tenant could take possession. Once the respondent landlord’s work on the premises was sufficiently underway, the tenant was informed that it could take possession and begin fixturing. When the tenant did not complete their fixtures by the set deadline, the landlord accepted this as a repudiation and terminated the lease. The trial judge found that the appellant tenant owed damages to the landlord for the repudiation of the lease and that the lease permitted a period of joint occupancy by the landlord and tenant.

Issues:

1. Did the trial judge err in finding that the lease permitted a period of joint occupancy by the landlord and tenant?

2. Did the trial judge err in finding that the tenant repudiated the lease, and that the landlord’s acceptance of the tenant’s repudiation was a proper way for the landlord to terminate the lease?

Holding:

Appeal dismissed.

Reasoning:

1. No.

The Court rejected the appellant’s submission that the lease’s silence on joint occupancy precluded its implication. It found that the lease required the landlord only to complete its work to a state sufficient for the tenant to begin fixturing, and expressly allowed the landlord to require the tenant to commence its work before the landlord’s work was complete. Accordingly, the Court held that the lease permitted both parties to carry out work on the premises concurrently, thereby upholding the trial judge’s finding of joint occupancy.

2. No.

The Court held that there was no distinction between termination and repudiation on the facts of this case. Repudiation occurs when one party indicates by words or conduct, that they no longer intend to honour their obligations when they fall due in the future: TNG Acquisition Inc. (Re), at para. 34. The appellant argued that its efforts to work with the landlord to preserve the lease after receiving notice showed it did not intend to repudiate the contract. However, the tenant was duly notified of the fixturing and possession commencement date, was granted an extension, and was ultimately given a final deadline to remedy its default by taking possession and beginning fixturing. Despite this, the tenant failed to do so. Accordingly, the Court found no palpable or overriding error regarding the finding that the tenant repudiated the lease by refusing to take possession and commence fixturing.

Kirby v. Woods, 2025 ONCA 437

[Madsen J.A.]

Counsel:

M. McCarthy and N. Burrows, for the appellant

M.P. Melito, for the respondent

R. Austin, C. Tempesta, and C. Robinson, for the Office of the Children’s Lawyer

Facts:

Note that to protect their identities and that of the child in question, the Court randomly generated the names of the appellant and respondent.

Parent 1 (Kirby) appealed a Superior Court order requiring the return of a child to their habitual residence under the Hague Convention on International Child Abduction. The Superior Court found that the child was wrongfully retained in Canada and rejected the “serious harm” exception to mandatory return. The Immigration and Refugee Board (IRB) had previously granted the child refugee status.

The Court considered Parent 1’s motion for confidentiality restrictions including: (i) file initialization, (ii) non-publication order protecting identities, and (iii) sealing of IRB documents. The Office of the Children’s Lawyer supported the motion. Parent 2 (Woods) opposed most restrictions except initialization and child identity protection. The case involved serious allegations of violence between parents and against the child. The child feared for physical safety if identifying information became public.

Issues:

1. Should confidentiality restrictions be imposed on court files to protect a child’s privacy and safety in the context of refugee proceedings and family law litigation?

a. Do children’s privacy interests constitute an “important public interest” sufficient to limit court openness?

b. Was restricting court openness necessary and proportionate to protect the child’s privacy in this case?

2. Should the Court consider giving notice to the parties, media, and other directly affected individuals before implementing limitations on court openness?

Holding:

Motion granted.

Reasoning:

1. Yes.

The Court ordered certain restrictions on access to protect the child’s interests. It considered the importance of court openness while acknowledging the contexts where limitations on court openness may be appropriate. The Court decided that protection of children to be a worthy justification.

By examining constitutional values and legislation, the Court found a non-family law basis for the discretion in limiting court openness. It then applied this justification to the protection of children in a family law context.

a. Yes.

The Court held that children’s privacy is a sufficient justification to limit court openness. Children have particularly heightened vulnerability requiring special protection. International jurisdictions acknowledge refugee children in particular. In light of such vulnerability, Canadian legislation provides heightened protection to children, including to their privacy. The Court held that children’s privacy constitutes an important public interest, especially when the child’s privacy breach threatens dignity and reveals their “biographical core”.

In the case at bar, the child expressed fear for her physical safety. Since physical safety concerns constituted a recognized important public interest, the Court limited court openness because the case background involved intimate details about the child’s experiences.

b. Yes.

The Court held that it was appropriate to restrict court openness to protect the child’s privacy in this case. Courts may on a fact-specific basis balance the protection of children’s privacy with limiting court openness.

The Court considered the test from Sherman Estate to justify the discretionary limitations on court openness. The requirements are: (i) court openness poses a serious risk to an important public interest; (ii) the order sought is necessary to prevent this serious risk to the identified interest because there are no reasonable alternatives; and (iii) the benefits of the proposed order outweigh its negative effects.

Despite the evidently serious risk to the child’s safety as a public risk, the Court found it overly broad and unnecessary to completely seal the file. It instead found that anonymization and selective sealing sufficiently incorporated a tailored approach. Further, the Court affirmed that the party seeking restrictions on court openness must demonstrate the benefits sought outweigh the deleterious effects. The Court held based on the facts that protecting the child’s identity was not pivotal to the judicial process because hiding her identity was not found to be legally relevant information to the public. It accordingly granted the child and her family anonymization and initialization as appropriate measures.

2. Yes.

The Court confirmed that courts should always consider giving notice to directly affected parties. However, the hearing judge has ultimate discretion of if and when that notice is required.

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.

Table of Contents

Civil Decisions

CIVIL DECISIONS