Court of Appeal Summaries (October 13 – 17)

Civil Decisions

Christian Heritage Party of Canada v. Hamilton (City), 2025 ONCA 700

Keywords: Constitutional Law, Public Law, Administrative Law, Charter Rights, Freedom of Expression, Freedom of Conscience and Religion, Civil Procedure, Judicial Review, Interveners, Canadian Charter of Rights and Freedoms, ss. 2a), 2b) and 7, Rules of Civil Procedure, rr. 13.02 and 13.03(2), Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395., Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, Caruso v. Law Society of Ontario, 2025 ONCA 270, Animal Justice v. Ontario (Attorney General), 2024 ONCA 941, Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, Solmar Inc. v. Hall, 2025 ONCA 570, General Manager, OHIP v. K.S., 2024 ONSC 130 (Div. Ct.), Oakwell Engineering Limited v. Enernorth Industries Inc., 2006 CanLII 60327 (Ont. C.A.), Bowman v. Ontario, 2021 ONCA 795, Henry v. Zaitlen, 2023 ONCA 740, Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67

Becker v. Watgate, 2025 ONCA 696

Keywords: Real Property, Riparian Rights, Boundary Dispute, Civil Procedure, Abuse of Process, Collateral Attack, Orders, Variation, New Evidence, Rules of Civil Procedure, rr. 1.04(1), 37.14, 59.06 and 61.16(6.1), Wilson v. The Queen, [1983] 2 S.C.R. 594, Garland v. Consumers’ Gas Co., 2004 SCC 25, Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Behn v. Moulton Contracting Ltd., 2013 SCC 26, Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, Winter v. Sherman Estate, 2018 ONCA 703, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, Quinn v. British Columbia, 2018 BCCA 320, Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, Winter v. Sherman, 2017 ONSC 5492, Becker v. Toronto (City), 2020 ONCA 607, Las Vegas Strip Ltd. v. Toronto (City) (1996), 30 O.R. (3d) 286 (Gen. Div.), Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town), 2024 ONCA 884, Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840, Bowen v. JC Clark Ltd., 2023 ONCA 181, Sabourin and Sun Group of Companies v. Laiken, 2013 ONCA 530, Tsaoussis (Litigation guardian of) v. Baetz (1998), 41 O.R. (3d) 257 (C.A.), Midland Resources Holding Limited v. Shtaif, 2018 ONCA 33

Alli v. Shakur, 2025 ONCA 703

Keywords: Torts, Defamation, Civil Procedure, Summary Judgement, Fact-Finding Powers, Evidence, Admissibility, Hearsay, Rules of Civil Procedure, r. 20.04(2.1), Alli v. Shakur, 2024 ONSC 6934

Sharif v. Canada (Public Safety and Emergency Preparedness), 2025 ONCA 711

Keywords: Administrative Law, Immigration, Deportation, Civil Procedure, Judicial Review, Appeals, Stay Pending Appeal, Interim Injunctions, Judicial Review Procedure Act, RSO 1990, c J.1, s. 6(2), Courts of Justice Act, RSO 1990, c C.43, s. 134(2), Immigration and Refugee Protection Act, S.C. 2001, c. 27., s. 36(1)(a), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Ahani v. Canada (Attorney General) (2002), 155 O.A.C. 1 (C.A.), Sharif v. Minister of Public Safety and Emergency Preparedness, 2025 ONSC 5221

Short Civil Decisions

Lu v. Wang, 2025 ONCA 702

Keywords: Torts, Negligence, Breach of Contract, Breach of Fiduciary Duty, Damages, R. v. Reid, 2016 ONCA 524

OW Technologies, LLC v. OTO Coach Inc., 2025 ONCA 701

Keywords: Contracts, Forum Selection Clauses, Debtor-Creditor, Promissory Notes, Civil Procedure, Jurisdiction, Forum Non Conveniens, Rules of Civil Procedure, r. 17.02(f), Van Breda v. Village Resorts Ltd., 2012 SCC 17

2505151 Ontario Inc. v. Furney, 2025 ONCA 706

Keywords: Contracts, Real Property, Mortgages, Enforcement, Writs of Possession, Appeals, Perfection, Mootness

Bazar v. Bruce Trail Conservancy, 2025 ONCA 699

Keywords: Real Property, Adverse Possession, Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 4, Land Titles Act, R.S.O. 1990, c. L.5, s. 51, Kosicki v. Toronto (City), 2025 SCC 28, McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, Armstrong v. Moore, 2020 ONCA 49

Constantine Enterprises Inc. v. Mizrahi (128 Hazelton) Inc., 2025 ONCA 710

Keywords: Contracts, Agreements of Purchase and Sale of Land, Entire Agreement Clauses, Bankruptcy and Insolvency, Receiverships, Tercon Contractors Ltd. v. British Columbia (Minister of Transportation & Highways), 2010 SCC 4

CIVIL DECISIONS

Christian Heritage Party of Canada v. Hamilton (City), 2025 ONCA 700

[Gomery J.A. (Motion Judge)]

Counsel:

G. Milousis and J. Bieman, for the appellants/responding parties

S. Zacharias, for the respondent/responding party

E. Phillips, M. Dill and K. Chen, for the proposed intervener/moving party Egale Canada

L. Bildy, for the proposed intervener Free Speech Union of Canada

H. Kheir, for the proposed intervener Charter Advocates Canada

J. Persaud, for the proposed intervener Association for Reformed Political Action

Facts:

In 2023, the Christian Heritage Party of Canada (the “CHP”), a political party that describes itself as advancing Christian values, submitted an advertisement to the City of Hamilton (the City”) for display in the Hamilton transit system. The proposed advertisement featured a photo of a smiling woman and the statement, “Woman: An Adult Female. Bringing Respect for Life and Truth to Canadian Politics” as well as the CHP name and website. The City refused the advertisement, explaining in a letter that the proposed ad jeopardized its ability to provide a safe and welcoming transit system because of the harms it could generate for the transgender community.

The Divisional Court dismissed CHP’s application for judicial review of the City’s decision. It noted that the City consulted with CHP and other stakeholders and had invited CHP’s further feedback on its decision. Relying on the Baker factors, the Court found that the City’s process was procedurally fair, proportionate and reasonable, as it balanced the City’s statutory interest in providing a welcoming transit system with CHP’s Charter right to freedom of speech and expression. Moreover, the City’s decision complied with principles from Vavilov and Doré; it was internally coherent, contained a rational chain of analysis and provided justifications from the relevant facts and law. Finally, the Court found that the City did not treat CHP in a biased or discriminatory manner. CHP appealed to the Court of Appeal.

Egale Canada (“Egale”), the Association for Reformed Political Action (“ARPA”), the Free Speech Union of Canada (“FSUC”), and Charter Advocates Canada (“Charter Advocates”) all sought leave to intervene in CHP’s appeal as friends of the court pursuant to rr. 13.02 and 13.03(2) of the Rules of Civil Procedure.

Issues:

Should Egale be granted leave to intervene?
Should ARPA be granted leave to intervene?
Should FSUC be granted leave to intervene?
Should Charter Advocates be granted leave to intervene?

Holding:

Motions by Egale and ARPA granted. Motions by FSUC and Charter Advocates dismissed.

Reasoning:

Before addressing the four organizations’ submissions, the motion judge laid out the basic principles governing motions for leave to intervene. Gomery J.A. affirmed that in determining such motions courts consider the nature of the case, the issues involved and the likelihood that the leave applicant will usefully contribute to the appeal’s resolution without causing injustice to the parties. She commented that the test for granting leave to intervene is more relaxed in constitutional cases, which can impact the rights of actors beyond the immediate parties. The purpose of intervention is thus to provide affected groups and individuals with an opportunity to be heard and to offer the court perspectives on the historical and sociological context of the issues raised.

Per Greenhouse Gas, a proposed intervener in constitutional litigation must fulfil at least one of the following: 1) it has a real, substantial and identifiable interest in the litigation’s subject matter, 2) it brings an important perspective distinct from the parties, or 3) it is a recognized group with specialized expertise and a broadly identifiable membership base. Ultimately, the overarching consideration is whether the proposed intervener will assist the court by providing a different perspective not already addressed in the litigation. Intervention may be denied where the proposed intervener’s submissions merely duplicate the submissions of a party.

1. Yes.

The motion judge rejected CHP’s contrary submissions and granted Egale leave to intervene on appeal. Egale is a long-standing non-profit organization and frequent intervener that promotes equality and justice for LGBTQ2S+ persons. Gomery J.A. denied that Egale’s arguments duplicated the City’s, instead finding that Egale represented a distinct community with a real, identifiable interest in the litigation and could provide expertise regarding systemic disadvantages faced by trans people. Egale’s lack of indifference to the appeal’s outcome was not a reason to deny it leave, so long as it would make a useful contribution. Gomery J.A. declined to limit Egale’s participation based on CHP’s contention that Egale would advance s.7 Charter arguments not raised by the parties and would file additional evidence. While her order would forbid any interveners from supplementing the record, Gomery J.A. held that allowing Egale to make s.7 arguments did not prevent the appeal panel from declining to consider them.

2. Yes.

Gomery J.A. also granted ARPA leave to intervene, despite the City’s opposition. ARPA is a non-profit advocacy organization representing Reformed Christian perspectives which had intervened in 22 constitutional actions. The motion judge found that ARPA was a well-recognized group with special expertise, specific membership and a real interest in the litigation. Though ARPA’s views overlapped with CHP’s, its submissions were not duplicative. Much like Egale’s s. 7 submissions, the motion judge declined to limit ARPA from making s. 2a) freedom of religion arguments, as it was for the appeal panel to determine if these arguments were relevant. Finally, Gomery J.A. did not find ARPA precluded from intervening merely because it had been involved in similar actions against the City in the past. ARPA’s interest in the appeal’s outcome because of its own litigation did not disqualify it from assisting the Court. It was also not unusual or unacceptable that ARPA’s lawyer had acted for CHP in similar litigation.

3. No.

FSUC, an organization formed in 2024 to defend free expression in Canada, was denied leave to intervene. Gomery J.A. deemed FSUC’s factum duplicative in that it failed to explain FSUC’s membership, expertise or mission beyond advocating for Charter interpretations emphasizing free speech. A purely jurisprudential interest, without more, was insufficient to qualify FSUC for intervener status.

4. No.

Charter Advocates is a not-for-profit run by lawyers who provide pro bono legal services advocating for s. 2b) freedom of expression. As with FSUC, Charter Advocates’ desire to shape the law was insufficient to ground intervener status, since it failed to fulfill the Greenhouse Gas criteria.

Becker v. Watgate, 2025 ONCA 696

[Huscroft, George and Favreau JJ.A.]

Counsel:

S. Hutchison, J. Ayotte, and D. Postel, for the appellants

I. de Rijcke and R. Fenn, for the respondent

Facts:

The parties owned adjacent properties on lots in the Kawarthas. The appellants owned Lot 42, which is immediately to the west of the respondent’s Lot 41.

Prior to 1902, there was a “lumberman’s dam” on Jack Lake. In 1902, the Crown transferred a 152-acre parcel of Crown land. The parcel included Lots 41 and 42. The 1902 Crown patent did not make any distinction between the high water or low water mark, but it created a reservation for use of the navigable waters flowing through any part of the parcel. In 1910, the federal government decided to use Jack Lake for water storage. It replaced the lumberman’s dam with a dam with two sluices, which caused additional flooding above that of the lumberman’s dam. In 1958, Plan 33 was registered and subdivided the land into lots, including Lots 41 and 42. A survey done at that time shows a line between Lots 41 and 42 that stops at the limit of Jack Lake, which is indicated as the “High Water Mark”. The dividing line between the two parcels skews the water’s edge and strikes the lake at an oblique angle.

Since 1958, there have been further subdivisions of Lots 41 and 42, but the boundary between the parties’ properties remains the same. Surveys of Lot 41 conducted in 1978 and 1989 describe the water boundary as the “High Water Mark”. Surveys of Lot 42 dated 1987, 1991 and 2002 describe the water boundary as the “Normal Controlled High Water Level (“NCHWL”) Contour of Elevation 106.33 (feet)”. The 1987 and 1991 plans also state that “The Original High Water Mark of Jack Lake cannot be determined with any certainty”.

In 2015, the appellants brought an application in the Superior Court seeking a declaration that the lot line between Lots 41 and 42 terminates at its intersection with the NCHWL. For his part, the respondent sought an order that the lot line terminates at its intersection with the water’s edge of Jack Lake at the time of the Crown patent in 1902. The application judge accepted the appellants’ expert evidence and granted a judgment in favour of the appellants in this case.

Subsequently, the Court of Appeal allowed the respondent’s appeal. The Court found that the application judge erred in finding that the NCHWL was the “High Water Mark” referred to in Plan 33 and, thus, the boundary of the lots. Instead, the Court held that the boundary was the water’s edge at the time of the 1902 Crown patent. On this basis, the Court remitted the matter back to the Superior Court for the purpose of determining the location of the water’s edge in 1902. The Court further directed that the Superior Court was to determine the effects of erosion or accretion, if any, on that boundary since the time of the Crown patent, and any riparian rights.

Most recently, the appellants obtained another expert report prepared by BB. BB agreed with the respondent’s expert regarding the location of the water’s edge in 1902. He also agreed that there was no erosion or accretion that would affect the water’s edge. However, he expressed the opinion that there should be a 15-degree bend in the lot line between the NCHWL and the 1902 water’s edge. The net effect is that he would include the shoreline in dispute and the land under one of the appellants’ floating docks as part of their property on Lot 42.

Ultimately, the appellants chose to start a new application seeking an order that there is a 15-degree clockwise bend in the boundary between Lots 41 and 42, starting at its intersection with the NCHWL and ending at the 1902 lake level. The notice of application, filed in 2023, also requests that their original application and the new application be consolidated. The motion judge granted the respondent’s cross-motion to dismiss the appellants’ motion to have both applications heard together on the basis that the 2023 application was a collateral attack on the Court of Appeal’s 2020 order.

Issues:

Did the motion judge err in dismissing the appellants’ second application because the terms of the Court of Appeal’s 2020 order did not preclude them from arguing that there was a bend in the lot line?
In the alternative, should the Court of Appeal vary that 2020 order to allow the appellants to raise the bend issue as part of the issues the Court of Appeal remitted back to the lower court?

Holding:

Appeal and motion dismissed.

Reasoning:

No.

The appellants contended that the motion judge erred in concluding that their proposed application constituted a collateral attack on the court’s 2020 order. They argued that the prior order did not prevent them from asserting that the lot line between their and the respondent’s properties included a bend. They also urged the court to adopt a liberal and non-technical interpretation of the 2020 order under Rule 1.04 of the Rules of Civil Procedure and maintained that they should not be penalized for deficiencies in the work of their first expert. However, the Court rejected these arguments, holding that the motion judge was correct in substance—though the appellants’ conduct in bringing a second application was better characterized as an abuse of process rather than a collateral attack.

The Court explained that while the doctrine of collateral attack prevents challenges to binding orders in the wrong forum, that doctrine did not technically apply here because the appellants were not seeking to overturn or avoid compliance with the 2020 order. Instead, they were attempting to supplement the existing order by adding a new issue—the “bend theory”—to the matters previously remitted for trial. The Court emphasized that this attempt constituted an abuse of process, a broader and more flexible doctrine that exists to protect the integrity, consistency, and finality of the judicial process. The doctrine applied when litigation is pursued in a way that violates principles of judicial economy or reopens issues that could have been dealt with earlier.

The Court held that the appellants’ new application clearly met the criteria for abuse of process. They had the opportunity to advance the bend theory during the original application, particularly once the respondent had asserted that the lot line extended beyond the natural high-water line to the 1902 water’s edge. At that time, it was open to them to argue, as an alternative, that the lot line bent at that point. Their failure to do so, followed by an attempt to introduce a new theory a decade later, amounted to litigation by instalment—a practice the courts have consistently condemned as contrary to finality and fairness. The appellants’ strategic delay and new expert evidence did not justify reopening the issue.

In rejecting the appellants’ interpretation of the 2020 order, the Court found that the order and its accompanying reasons made clear that the issues referred back to trial were meant to conclusively determine the ownership of the disputed waterfront. The 2020 order expressly stated that determining the water’s edge and its effects on the boundary “will determine the terminus of the lot line,” implying that no further theories were contemplated. The Court also dismissed the appellants’ reliance on Rule 1.04(1), noting that it was not a question of procedural interpretation but of substantive finality. Likewise, the argument that the appellants should not be prejudiced by their expert’s earlier omissions was rejected, as this was not a minor or readily rectifiable error but an attempt to reopen fully litigated matters.

No.

The Court of Appeal has previously stated that its authority under r. 59.06 to reconsider a decision is limited and will be exercised sparingly and only where it is clearly in the interests of justice to do so. The appellants relied on the Court of Appeal’s power to vary an order when facts are discovered after the original order was made or if a party seeks to obtain relief other than was originally awarded.

The Court rejected the appellants’ argument that they discovered the “bend theory” only after the case was sent back for a new trial, finding that it was not a new fact but simply a new theory based on fresh expert opinion. It held that such opinion evidence did not qualify as newly discovered under Rule 59.06(2)(a) because it relied on facts already available during the original proceedings, noting that the appellants’ expert, BB, had conducted no new survey and relied solely on existing evidence and literature. The Court also dismissed the appellants’ attempt to invoke Rule 59.06(2)(d) to obtain “other relief,” explaining that the rule is narrowly confined and cannot be used to reopen a case to advance a new theory. Finally, the Court rejected the suggestion that finality was irrelevant because the matter had been remitted to trial, stressing that the principle of finality still applied and strongly weighed against permitting the appellants to proceed with the bend theory.

Alli v. Shakur, 2025 ONCA 703

[Lauwers, Dawe and Rahman JJ.A.]

Counsel:

O. Roslak, for the appellant

R. Haté, for the respondents

Keywords: Torts, Defamation, Civil Procedure, Summary Judgement, Fact-Finding Powers, Evidence, Admissibility, Hearsay, Rules of Civil Procedure, r. 20.04(2.1), Alli v. Shakur, 2024 ONSC 6934

Facts:

The appellant E.A. is the uncle of the respondents, Y.S. and S.A. E.A. started two defamation actions. The statements of claim in both actions were issued on the same day. Together, these actions formed the litigation. The appeal concerned the motion judge’s decision to dismiss one of the two actions on a motion for summary judgment.

In the first action, E.A. alleged that Y.S. and S.A. made two defamatory statements about him. The motion judge found that summary judgment was appropriate for both the alleged defamatory statements and that there was no genuine issue requiring a trial. In the second action E.A. sued S.A. and their mother, B.A. for related allegedly defamatory comments. The second action was not the subject of the summary judgment motion or this appeal.

The appeal related to the first action. That action and the appeal were limited to only the alleged text message accusing E.A. of sexual assault sent by Y.S. in 2019 and the alleged repetition of the contents of this text message by S.A. to B.M. in a telephone call.

The motion judge ordered cross-examinations of B.M. and S.A. S.A. denied possessing the text message. B.M. testified that she never saw the text message but heard of it from S.A., who told her about the text and its contents accusing E.A. of rape in a phone call. The motion judge accepted S.A’s evidence that he never made the alleged defamatory statement and rejected B.M’s evidence. The motion judge also found that B.M’s testimony that S.A. told her about the existence of the text message to be inadmissible hearsay evidence in relation to the action against Y.A.

Issues:

Did the motion judge err in not admitting B.M’s evidence about S.A’s statement under the principled exception to hearsay rule?
Did the motion judge err by dismissing the action against S.A. notwithstanding S.A’s admission that, in phone calls with family members, he mentioned someone else might come forward with accusations against E.A.?

Holding:

Appeal dismissed.

Reasoning:

(1) Did the motion judge err in not admitting B.M’s evidence about S.A’s statement under the principled exception to hearsay rule?

No, the motion judge did not err in not admitting B.M’s evidence about S.A’s statement under the principled exception to hearsay rule. The Court found that even if B.M’s evidence could be considered necessary, the motion judge was correct in finding that her evidence was not credible. Even if the motion judge had ruled that B.M’s evidence was admissible against Y.A., it was clear from her reasons for granting summary judgment in favour of S.A. that she found that evidence to be unreliable and would have placed no weight on it against either Y.A. or S.A.

The motion judge made credibility findings to which the Court deferred. The Court found that there was no admissible evidence to prove the existence of a text message in which the plaintiff was called a rapist. The telephones in question no longer existed, but the Court found that this did not defeat the motion judge’s finding that no admissible evidence of the text message existed.

(2) Did the motion judge err by dismissing the action against S.A. notwithstanding S.A’s admission that, in phone calls with family members, he mentioned someone else might come forward with accusations against E.A.?

No, the motion judge did not err in dismissing the action against S.A on the basis of a finding that S.A. never made the alleged defamatory statement.

E.A. argued the motion judge erred by dismissing the action against S.A. notwithstanding S.A’s admission that, in phone calls with family members, he mentioned someone else might come forward with accusations against E.A. E.A. argued that, in substance, this was the same allegation as the one contained in his pleadings, that S.A. repeated to B.M. an allegation of sexual assault about E.A. He submitted that the motion judge simply found the allegation came from a different source.

The would not give effect to E.A’s argument because it was inconsistent with his decision to narrow his claims on the summary judgment motion in the court below. The Court found that the motion judge properly granted summary judgment on the allegations that were the subject of the first action.

Finally, E.A. argued that the case was inappropriate for summary judgment because it required significant determinations of credibility to be made. The motion judge relied on her fact-finding powers at r. 20.04(2.1) of the Rules of Civil Procedure. Given the limited nature of the issues before the motion judge and the evidence relevant to those issues, and the distinct nature of the claims raised by the first and second actions, E.A. had not shown it was in the interest of justice to exercise these fact-finding powers only at a trial.

Sharif v. Canada (Public Safety and Emergency Preparedness), 2025 ONCA 711

[Dawe J.A.]

Counsel:

D. Shuhaibar and J. Chandrashekar, for the moving party

B. Assan and N, Shahbaz, for the responding party

Facts:

The Applicant was a 26-year-old Somali national and former permanent resident who had been resettled in Canada in 2019. He faced removal to Somalia following an October 2023 inadmissibility finding under s. 36(1)(a) of the Immigration and Refugee Protection Act. The finding arose from serious criminal convictions, including sexual assault committed during psychiatric hospitalization and drug trafficking. After the UN Human Rights Committee issued an Interim Measures Request (IMR) asking Canada to defer removal while it considered the Applicant’s complaint, the Minister of Public Safety decided to proceed with removal.

The Applicant sought judicial review under s. 6(2) of the Judicial Review Procedure Act. The Superior Court dismissed his application on September 18, 2025, but extended an existing injunction staying removal for 30 days to permit him to seek appellate relief.

He then moved in the Court of Appeal for an interim order under s. 134(2) of the Courts of Justice Act enjoining removal pending determination of his motion for leave to appeal and, if granted, the appeal. The Minister opposed an extension of the injunction.

Issues:

Should the Court grant an interim injunction preventing the Applicant’s removal to Somalia pending his motion for leave to appeal and, if granted, the appeal?

Holding:

Motion granted.

Reasoning:

Yes.

The Court held the injunction should continue. The Court applied the three-part test established by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General). This included: (1) a preliminary assessment of the merits of the case to ensure that there was a serious question to be tried; (2) determining whether the applicant would suffer irreparable harm if the application were refused; and (3) an evaluation of the balance of inconvenience to determine which party would experience greater harm from granting or refusing the remedy pending a decision on the merits.

On the first branch, the threshold is low: RJR-MacDonald, at p. 337. The Applicant’s proposed appeal was neither vexatious nor frivolous. The application judge himself recognized the judicial review raised “substantial issues.” It was unnecessary and inappropriate to assess the likelihood of success on the leave motion or appeal on this motion.

On the second branch, the removal before the leave motion or appeal would have deprived the Applicant of his appeal rights and caused him to suffer irreparable harm. The Minister’s contention that the UNHRC’s IMR was non-binding did not address the relevant harm. The Minister’s ordinary practice was to pause removals upon receipt of an IMR, and he had previously done so in the Applicant’s case. Ahani v. Canada (Attorney General) confirmed that deportation before appellate review could constitute irreparable harm. The Minister’s reliance on Ahani was misplaced. Given the Applicant’s personal circumstances, deportation could also have irreparably affected his health and safety.

On the balance of convenience, the scales favoured continuing the injunction. The Minister’s reliance on Federal Court jurisprudence emphasizing criminality was neither binding nor persuasive in this distinct factual and legal context, which concerned a different governmental decision and a separate judicial review. In the Federal Court proceedings, findings against the Applicant on the issues of serious question and irreparable harm had informed the balance of convenience. Here, the opposite conclusions were reached. The Applicant was in custody and likely to remain detained, which mitigated public safety concerns. Any delay if leave were refused would have been brief, and prior administrative delays by the Minister undermined the claim of a pressing necessity for immediate removal.

SHORT CIVIL DECISIONS

Lu v. Wang, 2025 ONCA 702

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

Counsel:

L. He, T.T. Fu and Y.F. Liu, for the appellant

C. Belsito, for the respondent

Keywords: Torts, Negligence, Breach of Contract, Breach of Fiduciary Duty, Damages, R. v. Reid, 2016 ONCA 524

OW Technologies, LLC v. OTO Coach Inc., 2025 ONCA 701

[Huscroft, Copeland and Rahman JJ.A.]

Counsel:

P. Leigh, for the appellant

C. Wetmore, for the respondents

2505151 Ontario Inc. v. Furney, 2025 ONCA 706

[Tulloch C.J.O., Hourigan and Zarnett JJ.A.]

Counsel:

A. Furney, acting in person

W. Kaufmann, for the respondent

Keywords: Contracts, Real Property, Mortgages, Enforcement, Writs of Possession, Appeals, Perfection, Mootness

Bazar v. Bruce Trail Conservancy, 2025 ONCA 699

[Hourigan, Sossin and Pomerance JJ.A.]

Counsel:

S. Nash and L. Schroeder, for the appellant

M. Kersten, for the respondents

Constantine Enterprises Inc. v. Mizrahi (128 Hazelton) Inc., 2025 ONCA 710

[Rouleau, Sossin and Pomerance JJ.A.]

Counsel:

M. O’Brien and N. Morrow, for the appellant DB

A. Merskey and L. Cloutier, for the respondent Constantine Enterprises Inc.

J. Renihan and L. Archibald, for the respondent KSV Restructuring Inc., in its capacity as court-appointed receiver of Mizrahi (128 Hazelton) Inc. and Mizrahi 128 Hazelton Retail Inc.

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 (October 13 – 17)

Table of Contents

Civil Decisions

Short Civil Decisions

CIVIL DECISIONS

SHORT CIVIL DECISIONS