Court of Appeal Summaries (March 24 – 28)

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of March 24, 2025.

In Sutherland Estate v Murphy, the Court confirmed that section 11(c) of the Charter (the right not to be compelled to testify against oneself) applies in the context of civil contempt. The Court allowed the appeal from a finding of contempt, determining that the motion judge infringed the appellant’s rights under s.11(c) by compelling him to testify in his own contempt proceeding and erred in relying on that testimony to find the appellant guilty of a contempt that was neither admitted nor proven on the requisite standard.

In Ross v. Luypaert, a sibling dispute over their parents’ property, the Court dismissed an appeal from an order for the sale of a property and for possession of another.

In Kassabian v Marcarian, the Court dismissed the appeal from the trial judge’s determination following a two day trial of the parties’ date of separation as being May 16, 2021, rather than December 10, 2014.

Civil Decisions

Sutherland Estate v. Murphy, 2025 ONCA 227

Keywords: Charter Breach, Injunctive Relief, Civil Contempt, Quasi-Criminal Proceedings, Anton Piller Order, Cryptocurrency, Fraud, Self-Incrimination, Rule 60.11(4), Canadian Charter of Rights and Freedoms, s.11(c), Rules of Civil Procedure, Family Law Rules, O. Reg. 114/99, r. 31(4), United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, Gordon v. Starr (2007), 42 R.F.L. (6th) 366 (Ont. S.C.), Kassay v. Kassay (2000), 11 R.F.L. (5th) 308 (Ont. S.C.), Pro Swing v. Elta Golf Inc., 2006 SCC 52, R. v. P. (M.B.), [1994] 1 S.C.R. 555, Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065, R. v. Wigglesworth, [1987] 2 S.C.R. 541, John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2025 SCC 6, Carey v. Laiken, 2015 SCC 17, Bassett v. Magee, 2015 BCCA 422, Fischer v. Milo (2007), 44 R.F.L. (6th) 134, Centre commercial Les Rivières ltée v. Jean Bleu inc., 2012 QCCA 1663, Oliveira v. Oliveira, 2022 ONCA 218, Martineau v. M.N.R., SCC 81, R. v. Fitzpatrick, [1995] 4 S.C.R. 154, R. v. D’Amour (2002), 166 C.C.C. (3d) 477 (Ont. C.A.), Sakab Saudi Holding Company v. Saad Khalid S Al Jabri, 2023 ONSC 2488, McClure v. Backstein (1987), 17 C.P.C. (2d) 242 (Ont. H.C.), R. v. Jarvis, 2002 SCC 73, R. v. Pearson, [1992] 3 S.C.R. 665, R. v. Lyons, [1987] 2 S.C.R. 309, R. v. MacDougall, [1998] 3 S.C.R. 45, R. v. J.F., 2022 SCC 17, R. v. Gardiner, [1982] 2 S.C.R. 368, Bell ExpressVu Limited Partnership v. Corkery, 2009 ONCA 85, R. v. Handy, 2002 SCC 56, R. v. W. (D.), [1991] 1 S.C.R. 742, R. v. McManus, 2017 ONCA 188, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, Oliveira v. Oliveira, 2023 ONCA 520

Ross v. Luypaert, 2025 ONCA 236

Keywords: Wills and Estates, Powers of Attorney, Real Property, Partition and Sale, Civil Procedure, Orders, Enforcement, Writs of Possession, Adjournments, Appeals, Jurisdiction, Courts of Justice Act, s. 6(2), Partition Act, R.S.O 1990, c. P.4, ss. 3 & 7, Rules of Civil Procedure, r. 60.10, Webster v. Groszman, 2021 ONCA 55, 2650971 Ontario Inc. v. Shameti, 2022 ONCA 62, Billimoria v. Mistry, 2022 ONCA 276, Graham v. Vandersloot, 2012 ONCA 60, The Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, Conway (Re), 2016 ONCA 918, Grand River Conservation Authority v. Ramdas, 2021 ONCA 815, Shemish v. Benarzi (2006), 47 R.P.R. (4th) 92 (Ont. S.C.)

Kassabian v. Marcarian, 2025 ONCA 239

Keywords: Family Law, Date of Separation, Family Law Act, R.S.O. 1990, c. F.3, ss. 4(1), 7(3), 33(9), Divorce Act, R.S.C., 1985, c. 3, ss. 8(1), 8(2), 8(3), 15.2(4), Family Law Rules, O. Reg. 114/99, r. 2, Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), Al-Sajee v. Tawfic, 2019 ONSC 3857, Taylor v. Taylor (1999), 5 R.F.L. (5th) 162 (Ont. S.C.), Strobele v. Strobele (2005), 34 R.F.L. (6th) 111, Warren v. Warren, 2019 ONSC 1751, Al-Fatlawi v. Al-Bajawi, 2019 ONSC 7210, Czepa v. Czepa (1988), 16 R.F.L. (3d) 191 (Ont. H.C.J.), Newton v. Newton (1995), 11 R.F.L. (4th) 251 (Ont. U.F.C.), Oswell v. Oswell (1990), 74 O.R. (2d) 15 (H.C.J.), M. v. H., [1999] 2 S.C.R. 3, Rosseter v. Rosseter, 2013 ONSC 7779, Neufeld v. Neufeld, 2019 ONSC 1277, Joanis v. Bourque, 2016 ONSC 6505, Torosantucci v. Torosantucci (1991) 32 R.F.L. (3d) 202, (Ont. U.F.C.), Greaves v. Greaves (2004), 4 R.F.L. (6th) 1, Tsarynny v. Topchiy, 2025 ONCA 175, O’Brien v. O’Brien, 2013 ONSC 5750, Letford v. Letford (2000), 12 R.F.L. (5th) 169, Chan v. Chan, 2013 ONSC 7465, Button v. Button (2000), 8 R.F.L. (5th) 20, Cheng v. Sze, 2020 ONSC 937, 38 R.F.L. (8th) 165, Mathers v. Crowley, 2019 ONSC 5088, Klimm v. Klimm, 2010 ONSC 1479, Cheng v. Sze, 2021 ONCA 346, Simioni v. Simioni (2009), 74 R.F.L. (6th) 202

Short Civil Decisions

Pateman v. Koolatron Corporation, 2025 ONCA 224

Keywords: Employment Law, Wrongful Dismissal, Damages, Mitigation, Lake v. La Presse, 2022 ONCA 742

Dalpha Technologies Inc. v. Farrage, 2025 ONCA 235

Keywords: Contracts, Real Property, Mortgages, Remedies, Damages, Power of Sale, Civil Procedure, Default Judgment, Evidence, Expert Evidence, SFC Litigation Trust v. Chan, 2019 ONCA 525

Benchwood Builders, Inc. v. Prescott, 2025 ONCA 238

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Costs, Courts of Justice Act, RSO 1990, c C.43, ss. 137.1, 137.1(8)

Van Hove v. Druyff,, 2025 ONCA 240

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Summary Judgment, Chan v. Mangal, 2022 ONSC 2068

CIVIL DECISIONS

Sutherland Estate v. Murphy, 2025 ONCA 227

[Sossin, Madsen and Pomerance JJ.A.]

Counsel:

A. Wray and J. Echavarria, for the appellant

N. Groot, E. Stoik and C. Leafloor, for the respondents

facts:

The central issue on appeal arose from the execution of an Anton Piller Order. The action is for damages based on allegations that the appellant ran a fraudulent cryptocurrency scheme. When the respondents executed the Anton Piller Order, the appellant refused to turn over his iPhone and subsequently deleted the data from the device. Following this, the respondents brought a motion requesting that the appellant be held in contempt of the Order and that he be required to attend at examinations for discovery where he could be asked about the location of assets, including the data. The motion judge agreed and ordered the appellant to attend at examinations. Following his first two attendances at the examination, the matter returned to the motion judge and the appellant consented to declarations of contempt based on his refusal to provide the phone and the deletion of the data. The motion judge then ordered that he attend at further examinations. Additionally, the motion judge implicitly found the appellant to be in contempt for failing to produce the deleted data. This finding was neither admitted nor proven on the requisite standard. The appellant claimed that he could no longer access the data, but the motion judge found the contrary, relying on evidence by the respondents’ data analyst who surmised that the appellant could not have permanently destroyed the data and must have kept it somewhere. The motion judge sentenced the appellant to five months in jail with no prospect of earned remission but ruled that the sentence could be reduced if the appellant purged his contempt and directed that the appellant attend before the court after his term of incarceration to determine if further sanction was warranted.

The appellant challenged the proceedings below, including that the proceedings infringed his rights under s. 11(c).

issues:

Does section 11(c) Charter apply to civil contempt proceedings? If so,

a. Is the scope of s. 11(c) tailored?

b. Does s. 11(c) apply where the predominant purpose of the contempt hearing is coercive rather than punitive?

c. Does s. 11(c) apply to the sentencing portion of proceedings?

holding:

Appeal allowed.

reasoning:

Yes.

The Court held that given the public character of the interests at stake, the objectives at issue, and the potential for penal sanction, civil contempt hearings are properly characterized as “quasi-criminal” for constitutional purposes. Thus, it follows that a person facing a contempt allegation is “charged with an offence” for purposes of s. 11 of the Charter and there can be no doubt that the prospect of imprisonment triggers the application of s. 11.

The Court noted that the civil contempt power is a fundamental feature of the administration of justice and is an important means by which the courts maintain and enforce the rule of law. Importantly, because of the public and penal dimensions of civil contempt, it attracts the constitutional protections in s. 11(c) of the Charter, which has been expressly recognized by the Supreme Court in Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc. The Court noted that Vidéotron was later affirmed by the Supreme Court in Pro Swing v. Elta Golf Inc., where it was reiterated that not only is an alleged contemnor not compellable, “but he or she is not competent to act as a witness for the prosecution”: Pro Swing, at para. 35. According to the Court, while a litigant who seeks a contempt declaration may derive a benefit from a positive finding of contempt, it implicates and vindicates broader societal interests: those associated with the administration of justice and the rule of law such that once a party to the litigation seeks a declaration of contempt against another, the character of the proceedings changes and a private dispute becomes a juridical creature that is simultaneously civil and criminal. The Court clarified that contempt: 1) must be proven on the criminal standard of proof; 2) attracts procedural requirements, from pleadings to the presentation of evidence, that are enforced rigorously; 3) grants a person charged with contempt a right to a fair hearing where he or she can make full answer and defence; and 3) grants the right not to be compelled to testify against oneself.

a. Yes.

The Court noted that s. 11(c) of the Charter does not forbid all compulsion. Rather, it concerns itself only with testimonial compulsion—the compulsion to speak—as opposed to the compulsion to produce pre-existing, tangible items of evidence, or the compulsion to attend court, which is compellable under various civil Rules. The Court clarified that s. 11(c) is prospective in that it does not reach back in time to protect statements or testimony that were offered before the contempt proceedings began. Therefore, the use of testimony compelled before the commencement of contempt proceedings through the normal operation of the Rules of Civil Procedure does not offend s. 11(c). The section is complemented by the residual protection against self-incrimination housed in s. 7 of the Charter. In this case, the Court found that s. 7 is engaged because the evidence used to prove contempt should not have been compelled in the first place. Thus, if the compulsion was unconstitutional, the fruits of the compulsion are similarly tainted.

b. Yes.

The Court held that while it may be important to distinguish between the coercive and punitive aspects of contempt in other contexts and for other purposes, the distinction does not affect the application of s. 11(c) of the Charter. The Court disagreed with the respondents’ argument that because the predominant objective in the case was coercion rather than punishment, compelling the appellant’s testimony was not constitutionally offensive. The Court held that when it comes to the protection against testimonial compulsion, the distinction neither reflects the prevailing jurisprudence, nor serves the interests of justice. The Court arrived at this finding for four reasons. Firstly, the distinction flies in the face of Pro Swing and Vidéotron, the effect of which was to declare that for purposes of s. 11(c), contempt is contempt, compulsion is compulsion, and the two should not co-exist. Secondly, the Court held that the distinction is largely unworkable because there are few, if any, bright lines between the twin objectives of coercion and punishment and many cases, including this one, will involve a combination of both. Thirdly, the Court noted that even when the original animating objective is coercion, the potential for punishment remains because if the threat of sanction does not elicit compliance, all the court can do is punish the contemnor. Finally, the Court noted that it will not always be clear whether coerced compliance is possible, particularly so when dealing with the digital realm. To this point, the Court noted that although the respondents through their data scientist asserted that the data “must” exist or that it “likely” exists, absent proof beyond a reasonable doubt that it does, there is no basis for a coercive remedy.

The Court concluded that s. 11(c) of the Charter applies to civil contempt hearings, whether the purported objective is coercing compliance or punishing non-compliance. In neither instance should the alleged contemnor be compelled to self-incriminate. The Court instructed that the party looking for hidden assets may employ any number of investigative tools, but those tools stop short of compelling speech from the person who faces potential penal sanction.

c. Yes.

The respondents claimed that even within the traditional domain of criminal law, the Charter applies differently to sentencing than to the determination of guilt or innocence. For this argument, the respondents relied on R. v. Jones, which addressed the admissibility of evidence at a dangerous offender hearing. The respondents argued that if a person convicted of an offence is not “incriminated” during sentencing, and if that is in part because they are no longer “charged with an offence” once they have been convicted, it follows that s. 11(c)’s protections end once a proceeding moves from the liability phase to the sentencing phase. The Court noted that since Jones the constitutional landscape has changed and the Supreme Court has more recently ruled that s. 11 applies post-verdict, and that it continues to apply until the end of the sentencing process. The Court noted that just as individuals cannot be forced to convict themselves with their own words, they should not be required to assist the moving party in seeking a harsher penalty. The Court concluded that s. 11(c), like s. 11(b), continues to apply for the duration of criminal or quasi-criminal proceedings, until the final order or sentence is imposed. In this case, once the respondents launched contempt proceedings, the appellant was “charged with an offence” and, until those proceedings concluded, enjoyed immunity from testimonial compulsion.

Conclusion and Remedy

The Court held that each time the appellant was compelled to attend the five separate examinations, his rights under s.11(c) were infringed. The Court noted that this error was compounded by other troubling aspects of the proceedings, including that the motion judge and the respondents failed to see that the third act of contempt had its own independent requirement of proof. The Court reiterated that proof of one act of contempt cannot serve as proxy for proof of another. The Court clarified that, as outlined in Carey, contempt requires proof of three elements: 1) the order allegedly breached “must state clearly and unequivocally what should and should not be done”; 2) alleged contemnor must have actually known about the order; and 3) they must have intentionally breached it. In this case, the third element is at issue as the appellant could only have intentionally failed to produce the data if the data existed in a form that could be produced. The Court held that the evidence tendered by the respondents did not prove this element and the evidentiary foundation crumbled completely when the compelled testimony was omitted.

The Court concluded that the motion judge erred in: a) compelling the appellant to testify in violation of s. 11(c) of the Charter; b) relying on the compelled testimony to find the appellant in contempt for failing to produce the deleted data; c) sentencing the appellant for failing to produce the deleted data when that act of contempt had not been proved; and d) requiring the appellant to purge the contempt in order to avoid further sanction, absent evidence that it was possible to do so. The Court set aside the finding of contempt for failure to produce the deleted data, and the sentence imposed by the motion judge. The Court remitted the matter back to the Superior Court for a sentencing hearing to determine the penalty for the acts of contempt admitted by the appellant and awarded costs of $15,000 to the appellant.

Ross v. Luypaert, 2025 ONCA 236

[Zarnett, Sossin and Copeland JJ.A.]

Counsel:

M. Odumodu, for the appellant

A. Bonnell, for the respondents

facts:

The respondents, acting as litigation guardians for their parents, sought orders to sell a jointly owned rental property (Galt Property) and gain possession of a property solely owned by their mother but occupied by the appellant (Bristol Property). The appellant, their brother, refused to comply. A prior court order set a strict deadline for the appellant to file responding materials, which he missed. Representing himself, the appellant requested an adjournment and tried to submit evidence, but the judge denied it due to the peremptory nature of the deadlines. The court granted the sale of the Galt Property, with proceeds held in court, and issued a writ of possession for the Bristol Property, dismissing the appellant’s arguments.

issues:

Did the Court have jurisdiction to hear the appeal?
Did the application judge err in refusing to grant an adjournment?
Did the application judge err in awarding relief under the Partition Act?
Did the application judge err in awarding the writ of possession?
Did the application judge err in refusing the challenge to the powers of attorney?

holding:

Appeal dismissed.

reasoning:

The Court rejected the respondents’ argument that it lacked jurisdiction, noting that while appeals under the Partition Act generally go to the Divisional Court, s. 6(2) of the Courts of Justice Act grants the Court of Appeal jurisdiction when an appeal in the same proceeding is properly before it. The Court agreed that, because the order also included a writ of possession for the Bristol Property under r. 60.10 of the Rules of Civil Procedure, the case was distinguishable from others where all relief flowed solely from the Partition Act. Relying on Billimoria v. Mistry, the Court agreed that it had jurisdiction to hear the entire appeal.

2. No.

The Court rejected the appellant’s argument that denying his adjournment request caused procedural unfairness. It affirmed that application judges have broad discretion in granting adjournments, with appellate courts reluctant to intervene. The Court agreed the application judge properly considered factors like the appellant’s failure to comply with prior orders, his earlier representation by counsel, and his delay in hiring new counsel. It rejected the claim that the appellant was a vulnerable self-represented litigant, noting his identification as a landlord and real estate investor with ample opportunity to obtain counsel. The Court found no error or unfairness in refusing the adjournment or late materials.

3. No.

The Court upheld the application judge’s finding that the Galt Property was jointly owned, and that any owner could seek partition and sale under the Partition Act. It rejected the appellant’s argument against the order, noting he failed to prove that the respondents engaged in malicious or oppressive conduct. The application judge protected the appellant’s rights by ordering that sale proceeds be paid into court. It dismissed the argument that the appellant was the beneficial owner of the entire property, finding no evidence of a bare trust. The Court found no error in the judge’s decision to allow the partition and sale.

4. No.

The Court agreed with the application judge’s finding that the appellant was the sole occupant of the Bristol Property without a tenancy agreement. It rejected the appellant’s argument that the application judge improperly relied on his own “unsworn statement,” noting the judge merely confirmed what was already evident in the record. There was no basis to interfere with the application judge’s decision to grant the writ of possession.

5. No.

The Court agreed with the application judge’s finding that there was no evidence to support the appellant’s allegation that the powers of attorney were obtained through false testimony. It rejected his argument that one of the powers of attorney was not fully executed, stating that even if it were incomplete, there was no reason to question S.D. and L.H.’s statuses as appropriate litigation guardians. The court found no basis for appellate intervention.

Kassabian v. Marcarian, 2025 ONCA 239

[Nordheimer, Madsen and Pomerance JJ.A.]

Counsel:

S. P. Kirby and G. Joseph, for the appellant

J. Rechtshaffen and K. Davis, for the respondent

facts:

The parties were married on September 6, 1998, in Toronto. The appellant is a physician and the respondent is a dentist. The parties have two children, now both adults. The parties’ marriage was difficult. The trial judge determined that the parties’ date of separation was May 16, 2021, as asserted by the respondent wife, rather than December 10, 2014, the date claimed by the appellant husband. The husband appealed.

issues:

Did the trial judge err in her determination of the parties’ date of separation?

holding:

Appeal dismissed.

reasoning:

No. The trial judge correctly set out the law in the context of determining not just the date of separation but the valuation date under s. 4(1) of the Family Law Act, citing the relevant caselaw. The Court found that she highlighted that a bad marriage, or a marriage that disappoints, does not necessarily mean that parties have separated. Further, the Court stated that the trial judge correctly noted that the way parties live their lives as married will inform the assessment of whether and when one or both parties consider themselves to be separated. In addition, the Court held that the trial judge correctly recited the factors as set out in Oswell and subsequent caselaw, noting that no one factor is determinative, and that the decision to separate must be communicated clearly.

While the Court agreed with the appellant that greater clarity regarding findings of fact and credibility versus recitation of evidence would have been helpful, the Court found that, in reading the reasons as a whole, the trial judge considered both parties’ evidence fully.

The Court rejected the suggestion that the trial judge misdirected herself in referring to the fact that the determination of the date of separation was linked with the limitation period in relation to any equalization claim. In the Court’s view, the trial judge was simply stating the obvious in the context of the materials before her. While this is not a factor in determining the date of separation itself, it is the context in which the determination frequently takes place and often the very reason for making it. Furthermore, the Court noted that financial motivations which could suggest a reason for manipulating the alleged date could be a consideration: Taylor.

The Court also rejected the appellant’s argument that what appeared to be a misstatement of whether the appellant continued to wear his wedding band after 2015 constituted a palpable and overriding error. The Court held that the trial judge explicitly considered the appellant’s evidence, and that even if she did misstate this factual issue, it did not amount to a palpable and overriding error.

In addition, the Court concluded that the trial judge’s lack of reference to certain evidence did not compromise her analysis, holding that she was not obliged to refer to each piece of evidence in her reasons. The Court noted that the fact that the evidence could have been weighed or interpreted differently did not amount to palpable and overriding error: Tsarynny.

Finally, the Court held that the trial judge did not err in addressing the date of separation within the context of a two-day trial. The Court stated that while the materials before the trial judge were voluminous, she concluded that she was able to consider the materials and oral evidence, and the reasons reflected that she adequately did so. Contrary to the appellant’s assertion, the Court concluded that the trial judge’s determination was in line with the framework set out in Simioni, which required that bifurcation serve the interests of justice. The Court explained that determining narrow issues such as the date of separation efficiently and proportionately can only assist in the overall effectiveness of moving family law cases to resolution within the spirit of r. 2 of the Family Law Rules.

SHORT CIVIL DECISIONS

Pateman v. Koolatron Corporation, 2025 ONCA 224

[Zarnett, Sossin and Copeland JJ.A.]

Counsel:

G. Smits, for the appellant

E. Nolan and M. Daly, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Damages, Mitigation, Lake v. La Presse, 2022 ONCA 742

Dalpha Technologies Inc. v. Farrage, 2025 ONCA 235

[Zarnett, Sossin and Copeland JJ.A]

Counsel:

J. Jeyaratnam and J. Perry-Daiter, for the appellant

D. Brooker, for the respondent

Keywords: Contracts, Real Property, Mortgages, Remedies, Damages, Power of Sale, Civil Procedure, Default Judgment, Evidence, Expert Evidence, SFC Litigation Trust v. Chan, 2019 ONCA 525

Benchwood Builders, Inc. v. Prescott, 2025 ONCA 238

[Lauwers, Brown and Coroza JJ.A.]

Counsel:

A. Zaya and S. J. Erskine, for the appellants

Sheldon Inkol, for the respondents

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Costs, Courts of Justice Act, RSO 1990, c C.43, ss. 137.1, 137.1(8)

Van Hove v. Druyff, 2025 ONCA 240

[Simmons, Wilson and Madsen JJ.A.]

Counsel:

D. Sinko, for the appellants

P. Karsten, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Summary Judgment, Chan v. Mangal, 2022 ONSC 2068

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.

Court of Appeal Summaries (March 24 – 28)

Table of Contents

Civil Decisions

Short Civil Decisions

CIVIL DECISIONS

SHORT CIVIL DECISIONS