In Cadieux v. Cadieux, the Court upheld the motion judge’s decision to approve a Pierringer agreement between the plaintiffs and the City of Ottawa, which would result in the non-settling defendants being jointly and severally liable only to the degree of their collective fault for a motor vehicle accident. The Court affirmed that Pierringer agreements do not inherently prejudice non-settling defendants and emphasized that allowing proportionate reductions in liability due to potential co-tortfeasor insolvency would discourage the public interest in encouraging settlements and conflict with the Negligence Act’s goal of making plaintiffs whole. The risk of one tortfeasor not being able to contribute their share of liability falls on the other jointly and severally liable tortfeasors who do have the ability to pay, not on the plaintiff.
In Metrolinx v. Amalgamated Transit Union, Local 1587, five employees were dismissed for sexual harassment, and the dismissals were grieved. The arbitrator ordered the reinstatement of the grievors; however, this decision was overturned on judicial review. The Court ultimately found the arbitration award to be unreasonable and dismissed the grievors’ appeal.
In Amirthalingam v. Ratnam, the Court dismissed the appeal, finding no error in the trial judge’s exercise of her trial management powers in refusing leave to withdraw the deemed admissions and in declining to permit the appellants to call a last-minute witness. The Court also upheld the trial judge’s finding that the respondent had established all the necessary elements for their claim of unjust enrichment.
Shanthakumar Estate v. Canada Border Services Agency explores police negligence, focusing primarily on the standard of care. The Court dismissed the appeal, finding that the trial judge did not apply an inappropriate standard of care as to whether the arresting officers were negligent in making the arrests in question.
Westmount-Keele Limited v. Nicholas C. Tibollo Professional Corporation was a professional negligence claim in which the Court partially allowed the plaintiff’s appeal and increased the amount of damages awarded against the solicitors.
Finally, Hesch v. Langford was a priority dispute between motor vehicle insurers in respect of contributing to a settlement with the estate of a victim of an accident and her family following a collision with an uninsured motorist.
Table of Contents
Civil Decisions
Cadieux v. Cadieux, 2025 ONCA 405
Keywords:Torts, Negligence, MVA, Joint and Several Liability, Contribution and Indemnity, Contracts, Civil Procedure, Pierringer Agreements, Enforcement, Negligence Act, R.S.O. 1990, c. N.1, s. 1, Insurance Act, R.S.O. 1990, c. I.8, Contributory Negligence Act, RSS 1978, c C-31, Pierringer v. Hoger, 124 N.W.2d 106 (Wis. S.C. 1963), M.(J.) v. B.(W.) (2004), 71 O.R. (3d) 171 (C.A.), Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, Endean v. St. Joseph's General Hospital, 2019 ONCA 181, Allianz v. Canada (Attorney General), 2017 ONSC 4484, Taylor v. Canada (Health), 2009 ONCA 487, Chinook Group Ltd. v. Foamex International Inc. (2004), 72 O.R. (3d) 381 (S.C.), Renaissance Leisure Group Inc. v. Frazer (2004), 242 D.L.R. (4th) 229 (Ont. C.A.), Moore v. Sweet, 2018 SCC 52, Report on Contribution Among Wrongdoers and Contributory Negligence, Toronto: Ministry of Attorney General, 1988
Metrolinx v. Amalgamated Transit Union, Local 1587, 2025 ONCA 415
Keywords: Arbitration, Employment, Labor, Sexual Harassment, Workplace Harassment Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”), Ontario Human Rights Code, R.S.O. 1990, Calgary (City) v. Canadian Union of Public Employees Local 37, 2019 ABCA 388, Metrolinx v. Amalgamated Transit Union
Amirthalingam v. Ratnam, 2025 ONCA 414
Keywords: Contracts, Debtor-Creditor, Unjust Enrichment, Civil Procedure, Deemed Admissions, Withdrawal, Procedural and Natural Justice, Rules of Civil Procedure, rr. 51.03(2), 51.05, 1.04(1), 2.01(1), Champoux v. Jefremova, 2021 ONCA 92, Kerr v. Baranow, 2011 SCC 10
Shanthakumar Estate v. Canada Border Services Agency, 2025 ONCA 422
Keywords: Torts, Negligence, Police, Charter Claims, Wrongful Arrest, Arbitrary Detention, Standard of Care, Civil Negligence Jurisprudence, Canadian Charter of Rights and Freedoms, rr. 8, 9, Criminal Code, R.S.C. 1985, c. C-46 rr. 380(1), 145(4), 495(1), 766, Customs Act, R.S.C. 1985, c. 1 s. 106(1), Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1, Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, R. v. Storrey, [1990] 1 S.C.R. 241, R. v. Tim, 2022 SCC 12, R. v. Beaver, 2022 SCC 54, 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, Payne v. Mak, 2018 ONCA 622, Kolosov v. Lowe’s Companies Inc., 2016 ONCA 973, R. v. Gerson-Foster, 2019 ONCA 405, R. v. Robinson, 2016 ONCA 402, R. v. Kossick, 2018 SKCA 55, R. v. Williams, 2024 ONCA 69, R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), R. v. Chehil, 2013 SCC 49, R. v. Harris, 2007 ONCA 574, R. v. Wilson, [2006] O.J. No. 4461 (C.A.), R. v. Harris, 2006 ONCJ 106, R. v. Wilson, [2003] O.J. No. 4465, R. v. J.F.R., [1991] Y.J. No. 235 (Terr. Ct.), Lord v. Canada, 2001 BCSC 212, Khadikin v. The Corp. of the City of Nelsonet al, 2003 BCSC 1987, Dao v. Hamilton (City) Police Services Board, [2009] O.J. No. 2240 (S.C.)
Westmount-Keele Limited v. Nicholas C. Tibollo Professional Corporation, 2025 ONCA 401
Keywords: Contracts, Torts, Solicitors Negligence, Damages, Mitigation, Civil Procedure, Limitation Periods, Discoverability, Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, Cassandro v. Glass, 2019 ONCA 654, Martin v. Goldfarb (1998), 41 O.R. (3d) 161 (C.A.), Westmount-Keele Limited v. Royal Host Hotels and Resorts, 2018 ONSC 5170
Hesch v. Langford, 2025 ONCA 404
Keywords: Contracts, Interpretation, Contra Proferentem, Insurance, Motor Vehicle, Uninsured Motorist Coverage, Ontario Automobile Policy OAP-1, 44R Endorsement, Priority, Insurance Act, R.S.O. 2000, c. I.8, s. 277, Family Law Act, R.S.O. 1990, c. F.3, Kahlon v. ACE INA Insurance, 2019 ONCA 774, Parslow v. Old Republic Insurance Co. of Canada, 2002 CarswellOnt 5176 (Ont. S.C.), Pilot Insurance Company v. Sutherland, 2007 ONCA 492, Benson v. Walt, 2018 ONCA 172, McGrath v. Arshad (2008) 158 (Ont. S.C.), The Standard Automobile Policy Annotated, Toronto: Butterworths, 1986, Auto Insurance Coverage Law in Ontario, 2nd ed., Toronto: LexisNexis Canada, 2021
Short Civil Decisions
Johnson-Emanuel v. Emanuel, 2025 ONCA 402
Keywords: Family Law, Property, Equalization of Net Family Property, Child Support, Special or Extraordinary (Section 7) Expenses, Civil Procedure, Appeals, Perfection, Extension of Time, Panel Reviews, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Federal Child Support Guidelines (SOR/97-175), Hillmount Capital Inc. v. Pizale, 2021 ONCA 364
Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Assignments, Termination, Damages, Prejudgment Interest, Post-judgment Interest, Civil Procedure, Cross-Appeals, Rules of Civil Procedure, r. 61.07(1)
Ontario Federation of All Terrain Vehicle Clubs v. Ireland, 2025 ONCA 411
Keywords: Torts, Defamation, Defences, Truth, Fair Comment, Civil Procedure, Applications, Misnomer, Notices of Appearance, Procedural Fairness, Rules of Civil Procedure, rr. 38.07 and 5.04(2), Ormerod v. Strathroy Middlesex General Hospital (2009), 97 O.R. (3d) 321 (C.A.), Foulidis v. Ford, 2014 ONCA 530
Keywords: Contracts, Real Property, Condominiums, Civil Procedure, Evidence, Credibility
Gallant v. Johnson, 2025 ONCA 419
Keywords: Contracts, Interpretation, Duty of Good Faith, Real Property, Commercial Leases, Rules of Civil Procedure, Rule 14.05(3)(d)
Oliveria Jr. v. Mencel, 2025 ONCA 420
Keywords: Civil Procedure, Appeals, Perfection, Extension of Time, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131
CIVIL DECISIONS
Cadieux v. Cadieux, 2025 ONCA 405
[George, Favreau and Gomery JJ.A.]
Counsel:
D. A. Zuber and P. Essig, for the appellants
I.W. Furlong, D.R. Merkur, R.M. Ben and A.N. Williams, for the respondents K.C. by his litigation guardian, L.S., L.S. and J.C. by his litigation guardian L.S.
S. Doucet, for the respondent City of Ottawa
W. Colin Empke, for the respondent P.C.
J.Y. Obagi and E.A. Quigley, for the Intervener Ontario Trial Lawyers Association
Keywords: Torts, Negligence, MVA, Joint and Several Liability, Contribution and Indemnity, Contracts, Civil Procedure, Pierringer Agreements, Enforcement, Negligence Act, R.S.O. 1990, c. N.1, s. 1, Insurance Act, R.S.O. 1990, c. I.8, Contributory Negligence Act, RSS 1978, c C-31, Pierringer v. Hoger, 124 N.W.2d 106 (Wis. S.C. 1963), M.(J.) v. B.(W.) (2004), 71 O.R. (3d) 171 (C.A.), Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, Endean v. St. Joseph's General Hospital, 2019 ONCA 181, Allianz v. Canada (Attorney General), 2017 ONSC 4484, Taylor v. Canada (Health), 2009 ONCA 487, Chinook Group Ltd. v. Foamex International Inc. (2004), 72 O.R. (3d) 381 (S.C.), Renaissance Leisure Group Inc. v. Frazer (2004), 242 D.L.R. (4th) 229 (Ont. C.A.), Moore v. Sweet, 2018 SCC 52, Report on Contribution Among Wrongdoers and Contributory Negligence, Toronto: Ministry of Attorney General, 1988
Facts:
The defendant, P.C., collided with one of the appellants’ tractor trailers after entering an intersection on a red light. P.C.’s two minor children, who are respondents, were passengers in his vehicle and suffered catastrophic injuries from the collision.
The City of Ottawa (“Ottawa”) was named as a defendant in the statement of claim in which it was alleged that the City was negligent in designing the intersection where the accident occurred. The plaintiffs and Ottawa entered into a Pierringer Agreement (“Agreement”). It provided that the plaintiffs would amend their claims such that the non-settling defendants would remain jointly and severally liable only to the degree of their collective fault. The trial court accordingly had full authority to apportion liability among all defendants, including Ottawa. The agreement aimed to eliminate any crossclaim for contribution and indemnity against Ottawa.
The appellants objected to the Agreement’s approval, arguing that it substantially prejudiced them because they would have to pay a higher portion of P.C.’s share of damages along with their share than they would without the Agreement. The plaintiffs’ Cost of Care Report for K.C. estimated that his future care costs exceeded the combined insurance coverage for the defendant and one of the appellants, United Petroleum.
The motion judge rejected the appellants’ argument and approved the Agreement, granting leave to amend the statement of claim pursuant to its terms. The motion judge found the alleged prejudicial harm speculative, outweighed by the policy goal of encouraging settlements in complex multi-party litigation, and better addressed at trial once the Agreement’s effects were known. The appellants also requested procedural orders regarding Ottawa’s participation at trial. The motion judge decided to leave those issues to the trial judge or case management judge.
The non-settling parties appealed the motion judge’s decision, asking the Court to decline to approve the agreement or allow them to argue that a proportionate reduction be made to their share of the underfunded amount to reflect their degree of fault compared to Ottawa’s. The non-settling appellants also appealed the motion judge’s decision on the procedural orders regarding Ottawa’s participation at trial. The intervenor made submissions regarding the implications of Pierringer agreements in multi-party litigation.
Issues:
1. Did the motion judge err by approving the Pierringer Agreement?
2. What procedural orders, if any, should be made to facilitate Ottawa’s participation at trial?
Holding:
Appeal dismissed.
Reasoning:
1. No.
The motion judge did not err in rejecting the appellants’ claim of prejudice, nor in declining to grant the appellants permission to argue for a proportionate reduction.
It is only appropriate for a court to decline to approve a Pierringer agreement in two circumstances: (i) when it significantly prejudices a non-settling defendant by materially reducing the non-settling defendant’s ability to know and present their case or to pursue their own settlement; and (ii) when the prejudice outweighs the strong public interest in encouraging settlements. The Court noted that the prejudice must be more than the inherent disadvantages to a non-settling defendant in a basic Pierringer agreement, such as their defence no longer being assisted by the settling defendant or the settling defendant no longer sharing in any joint and several liability. The Court upheld the longstanding principle that the risk of insolvent or impecunious tortfeasors falls onto other joint tortfeasors, and not the victim, and this cannot itself give rise to prejudice that would justify declining to enforce a Pierringer settlement.
The Court dismissed the appellants’ argument that they should be allowed to seek a proportionate sharing of the underfunded amount caused by a co-tortfeasor’s insolvency as an equitable form of restitution. Such an argument is precluded by the Negligence Act because it could result in the plaintiffs receiving less than the total judgment obtained. This would go against the Act’s objective, which is to make plaintiffs whole despite the risk that a tortfeasor may be required to pay more than their share of liability. For a plaintiff to be made whole, a tortfeasor may have to pay all of the plaintiff’s damages and recover no indemnity from co-tortfeasors who are not pursued by cross-claim, third-party action, or separate action, or are not creditworthy or insured. The Court referenced the decision in Renaissance Leisure Group Inc. v. Frazer, highlighting that the Ontario Legislature has not yet legislated risk spreading in insolvency or impecuniosity situations, nor does the Negligence Act contemplate it. Further, the Court found that the appellants’ argument failed because putting Ottawa into a position of joint liability through proportionate reduction would remove an important incentive for defendants in multi-party litigation to settle and would undermine the public interest in encouraging settlements.
The Court rejected the appellants’ argument that they suffered substantive prejudice by losing the opportunity to make a restitution claim. The Court noted that when the settling defendant no longer shares joint liability through a Pierringer agreement, the non-settling defendant is free from any liability for the fault of the settling defendant. Thus, these agreements do not inherently prejudice non-settling defendants.
2. None.
The Court agreed with the motion judge’s decision to leave the appellants’ procedural order requests to the trial judge or the case management judge, while noting that some of the proposals made seemed sensible.
Metrolinx v. Amalgamated Transit Union, Local 1587, 2025 ONCA 415
[Lauwers, Nordheimer and Wilson JJ.A.]
Counsel:
K. Ensslen and E. Home, for the appellant
B.R. Jones and R. Khan, for the respondent
Keywords: Arbitration, Employment, Labor, Sexual Harassment, Workplace Harassment Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”), Ontario Human Rights Code, R.S.O. 1990, Calgary (City) v. Canadian Union of Public Employees Local 37, 2019 ABCA 388, Metrolinx v. Amalgamated Transit Union
Facts:
Five (5) Metrolinx employees, who were members of the Amalgamated Transit Union, Local 1587 were dismissed for sexual harassment. They were part of an online WhatsApp texting group on their personal cellphones in which they made derogatory and sexist comments about other employees. The Union grieved the dismissals.
An arbitrator allowed the grievances and ordered the reinstatement of the dismissed employees. Metrolinx subsequently sought judicial review of the arbitration award. The Divisional Court found the arbitrator’s decision to be unreasonable. The Divisional Court accordingly granted the judicial review application, and remitted the matter to the Grievance Settlement Board for reconsideration by a different arbitrator.
The Union then sought leave to appeal the Divisional Court’s decision.
Issues:
1. Was the arbitration award reasonable?
a. Did the Arbitrator meaningfully address Metrolinx’s statutory obligations?
b. Does the evidence establish that “the impact of the harassment and/or discrimination is being manifested within the workplace”, as required under the Policy and does Metrolinx have authority over the Grievors’ conduct while they are off duty?
Holding:
Appeal dismissed.
Reasoning:
1. No.
The Court held that although the Arbitrator correctly stated the governing principles, he made an error in applying those principles to the facts of the case. The specific errors are discussed in the sub-issues outlined below.
a. No.
The Court held that under section 32.0.7 of the Occupational Health and Safety Act, R.S.O. 1990 (OHSA), employers are required to investigate incidents and complaints of workplace harassment even if a formal complaint has not been filed. The Arbitrator erred in law by concluding that when the alleged victim declined to file a complaint, and no other active employee came forward, the matter should end. Although Metrolinx’s internal policy states that the investigative process is initiated by a complaint, this policy cannot limit the employer’s statutory obligations under the OHSA.
Moreover, the Court disagreed with the Arbitrator’s view that Metrolinx became the complainant by conducting the investigation and thereby created a conflict of interest. The Court emphasized that no complainant is necessary for an investigation to proceed. Therefore, a victim’s reluctance to file a complaint does not relieve an employer of its statutory duty to investigate when incidents of sexual harassment are brought to its attention.
The Court further found that the Arbitrator erred in concluding that the victim’s reluctance to pursue a complaint meant the impugned behavior did not have a negative impact on her in the workplace. The Supreme Court’s caution against relying on presumptions and stereotypes about how victims of sexual assault are expected to behave applies equally to arbitrators deciding sexual harassment grievances (see Calgary (City) v. Canadian Union of Public Employees Local 37, [1992] 2 S.C.R. 122). In this case, the Arbitrator’s reasoning depended on discredited myths and stereotypes about an employee’s response, rendering the decision unreasonable.
b. Yes.
The Court held that the Arbitrator’s conclusion that the impact of the impugned behavior was not manifested in the workplace was inconsistent with the facts. Regardless of where the conduct originated, it entered the workplace when victims became aware of the text messages and experienced emotional distress at work. Additionally, the messages were circulated among other employees. Accordingly, the Court determined that this was a workplace issue. The Court further held that off-duty conduct may warrant discipline if its effects manifest within the workplace, as was the case here.
Amirthalingam v. Ratnam, 2025 ONCA 414
[Copeland, Monahan and Rahman JJ.A.]
Counsel:
T.W. Khan, for the appellants
K.S. Randhawa, for the respondent
Keywords: Contracts, Debtor-Creditor, Unjust Enrichment, Civil Procedure, Deemed Admissions, Withdrawal, Procedural and Natural Justice, Rules of Civil Procedure, rr. 51.03(2), 51.05, 1.04(1), 2.01(1), Champoux v. Jefremova, 2021 ONCA 92, Kerr v. Baranow, 2011 SCC 10
Facts:
The respondent issued a claim against the appellants in December 2015 for $160,000 claiming the repayment of funds advanced. A judicial pre-trial was initially scheduled for February 10, 2021, but ended up being held on August 17, 2021. An order was made setting various deadlines to prepare for the trial, which was scheduled for March 14, 2022, but the trial could not proceed for various reasons.
Another pre-trial was then conducted on March 16, 2022, where the judge made an order setting new deadlines in preparation for trial (“the March order”). Within the March order, the following terms were included: the trial was scheduled for the week of October 11, 2022; requests to admit must be served by July 30, 2022; the evidence in chief for all witnesses at trial would be by affidavit and the trial affidavits must be served and filed by September 12, 2022.
The respondent served a request to admit in compliance with the March order. These facts were deemed admitted by the appellants because the appellants did not serve a response. The respondent filed his affidavits for trial in accordance with the March order. The appellants did not and served their trial affidavits five days before the trial week.
On the first day of the trial, the appellants appeared with new counsel and requested leave to file their late-served affidavits and to withdraw the deemed admissions without having brought a motion to do so. The trial judge heard the motion the next day after it was filed and denied leave to withdraw the deemed admissions. She allowed the appellants’ trial affidavits to be filed but struck out the portions of the affidavits that contradicted the deemed admissions.
The trial judge ultimately ruled in favour of the respondent, finding that the funds were extended as a loan (rather than a gift) that was not repaid. The ruling was based on unjust enrichment, rather than contract. While the trial judge was unable to find that there was an agreement about the term of the loans and the interest rate, she found that the elements necessary for a claim of unjust enrichment were made out.
Issues:
1. Did the trial judge err in refusing leave to withdraw the deemed admissions and in redacting the appellants’ trial affidavits?
2. Did the trial judge err in refusing to permit the appellants to call a witness?
3. Did the trial judge err in her unjust enrichment analysis?
Holding:
Appeal dismissed.
Reasoning:
1. No.
The trial judge correctly set out the test from Champoux v. Jefremova for leave to withdraw deemed admissions: In considering whether to allow the withdrawal of a deemed admission, a court must first consider whether the admission is one of purely fact, law, or mixed fact and law. The court must then apply a three-part test: (i) whether there is a triable issue regarding the truth of the admission; (ii) whether there is a reasonable explanation for the withdrawal, such as inadvertence or wrong instructions; and (iii) whether the party wishing to withdraw the admission has established that the withdrawal will not result in any prejudice that cannot be compensated for in costs.
The Court deferred to the trial judge’s assessment of the applicants’ evidence on the motion and accepted her finding that the appellants’ request to withdraw the deemed admissions failed on the second and third branches of the test. The trial judge found that the appellants’ evidence on the motion was insufficient to demonstrate a reasonable explanation for the withdrawal. Additionally, the trial judge was not convinced that there would be no prejudice to the respondent, noting factors such as the age of the claim, that this was a second trial date and that the respondent was prepared for trial. The Court also held that the order to redact the portion of the appellants’ trial affidavits that contradicted the deemed admissions was a corollary of her refusal to allow the withdrawal of the deemed admissions.
The Court rejected the appellants’ argument that the trial judge erred in the deemed admissions ruling by failing to consider rules 1.04(1) and 2.01(1) of the Rules of Civil Procedure, noting that the interests of justice concerns expressed in those rules are incorporated into the test set out in Champoux.
2. No.
The Court upheld the trial judge’s refusal to allow the appellants to call K.L. as a witness, finding that allowing the appellants to a witness at the last minute would be unfair. The appellants failed to include K.L. on the witness list, contrary to the order of August 17, 2021. In addition, the appellants’ late filing of their trial affidavits meant that the respondent heard of K.L. for the first time on the eve of the trial. The Court found no error in the trial judge’s exercise of her trial management powers when the appellants failed to comply with the earlier court orders setting deadlines governing preparation for trial.
3. No.
The Court upheld the trial judge’s unjust enrichment analysis, finding that it correctly outlined the required elements for a claim of unjust enrichment set out in Kerr v. Baranow (an enrichment of the defendant by the plaintiff; a corresponding deprivation of the plaintiff; and the absence of a juristic reason for the enrichment). The trial judge found that all elements were satisfied: the appellants had been enriched based on her finding that the respondent advanced $160,000 in loan funds to the appellants; there was a corresponding deprivation to the respondent because the loan funds were not repaid; and finally, there was no juristic reason for the enrichment.
Shanthakumar Estate v. Canada Border Services Agency, 2025 ONCA 422
[Miller, Trotter and Copeland JJ.A.]
Counsel:
Rafal Szymanski, for the appellant
P.M. Callahan, for the respondents
J. Barrow, for the intervener Canadian Association of Chiefs of Police
S. Choudhry and M. Kakkar, for the intervener of South Asian Legal Clinic of Ontario
Keywords: Torts, Negligence, Police, Charter Claims, Wrongful Arrest, Arbitrary Detention, Standard of Care, Civil Negligence Jurisprudence, Canadian Charter of Rights and Freedoms, rr. 8, 9, Criminal Code, R.S.C. 1985, c. C-46 rr. 380(1), 145(4), 495(1), 766, Customs Act, R.S.C. 1985, c. 1 s. 106(1), Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1, Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, R. v. Storrey, [1990] 1 S.C.R. 241, R. v. Tim, 2022 SCC 12, R. v. Beaver, 2022 SCC 54, 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, Payne v. Mak, 2018 ONCA 622, Kolosov v. Lowe’s Companies Inc., 2016 ONCA 973, R. v. Gerson-Foster, 2019 ONCA 405, R. v. Robinson, 2016 ONCA 402, R. v. Kossick, 2018 SKCA 55, R. v. Williams, 2024 ONCA 69, R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), R. v. Chehil, 2013 SCC 49, R. v. Harris, 2007 ONCA 574, R. v. Wilson, [2006] O.J. No. 4461 (C.A.), R. v. Harris, 2006 ONCJ 106, R. v. Wilson, [2003] O.J. No. 4465, R. v. J.F.R., [1991] Y.J. No. 235 (Terr. Ct.), Lord v. Canada, 2001 BCSC 212, Khadikin v. The Corp. of the City of Nelson et al, 2003 BCSC 1987, Dao v. Hamilton (City) Police Services Board, [2009] O.J. No. 2240 (S.C.)
Facts:
In 2012, the respondents returned to Ontario from the United States via the Queenston-Lewiston Bridge in Niagara. A Canada Border Services Agency (CBSA) officer stopped the pair because the officers believed they attempted to enter Canada without stopping for inspection. The CBSA officer conducted a Canadian Police Information Centre (“CPIC”) search on them. The CPIC system is used to share crime-related information that must not be acted upon without verification from the originating agency. The search stated that the couple had been charged by the RCMP with fraud, contrary to s. 380(1) of the Criminal Code. The CPIC system showed the couple was released from custody on undertakings that required them to stay in Ontario. However, the Crown stayed the proceedings against the respondents weeks before. The undertakings were vacated, but the RCMP did not update the CPIC system. The CBSA officer arrested the respondents for failing to comply with their undertakings, and the Niagara Police Service (“NPS”) transported the respondents to a detachment. The respondents were released when the RCMP verified that the respondents’ claims that the charges against them had been stayed.
The respondents sued the CBSA, the Regional Municipality of Niagara Police Services Board, and the Attorney General of Canada (on behalf of the RCMP). The trial judge found Niagara Police Service (NPS) and the Attorney General liable in negligence and they violated one of the respondents’ rights under s. 9 of the Charter. The trial judge awarded damages in the following amounts to each respondent: (a) $25,000 in general damages and $5,000 in punitive damages to be paid by the RCMP; and (b) $15,000 in general damages and $5,000 in punitive damages to be paid by the NPS. The trial judge held that the respondents’ claim against CBSA was statute-barred because they missed the limitation period. Had the claim not been statute-barred against the CBSA, he would have ordered $15,000 in general damages and $5,000 in punitive damages. NPS appealed.
Issues:
1. Was the trial judge’s development of the standard of care inconsistent with criminal jurisprudence?
a. Should the standard of care in cases of police negligence set a higher bar for police conduct than the relevant criminal standard?
b. Did the CBSA and NPS officers meet the requirements to make an arrest under criminal law?
c. Could the NPS have had reasonable and probable grounds to arrest and maintain custody without first verifying the CPIC information?
2. Were the trial judge’s conclusions inconsistent with the civil negligence jurisprudence applicable to the conduct of police officers?
3. Was the trial judge’s development of the standard of care inconsistent with the totality of the evidence?
Holding:
Appeal dismissed.
Reasoning:
1. No.
The trial judge did not insist that having a prima facie case is a requirement for a lawful arrest. This is not inconsistent with criminal law requirements.
a. No.
Following the finding of a reasonable officer standard in Hill, the Court found that the bar for standard of care in alleged police negligence cases should not be higher than the relevant Criminal Code standard.
b. No.
At all material times the appellant was subject to three criminal standards: First, in order to make an arrest under s. 495(1)(a) of the Criminal Code, the police must subjectively have reasonable and probable grounds to believe a person has or is about to commit an indictable offence. These grounds must be justifiable from an objective point of view. Tim and Beaver clarified that the objective point of view “is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer.” This does not, however, mean that police are necessarily excused from making further inquiries prior to arresting based on CPIC information.
Second, the requirement of reasonable and probable grounds does not oblige the police to have a prima facie case for conviction before making an arrest. Verifying the CPIC information as an additional step does not obligate the officer to assume they had a prima facie case; rather, it aligns with the requirements of s. 495(1).
Third, whether the police must verify CPIC information that they use to form the reasonable and probable ground for an arrest will depend on the circumstances. In Kossick, the Court had stated that reliance on incorrect information by an arresting officer will not be objectively reasonable if, in the circumstances, the police could reasonably have made inquiries resulting in the identification of defects. This means that the submission of reliance on a mistaken CPIC may provide reasonable and probable grounds for an arrest, but not always. An officer must consider all available information and is entitled to disregard only that which they have legitimate grounds to believe is unreliable.
The Court also did not accept the submission that this was not the state of the law when the respondents were arrested in 2012 because cases such as Harris, Wilson, and Storrey were decided before that point.
c. No.
The CBSA and NPS officers had enough time (nearly two hours) to verify the information, especially since the respondents had told her that their charges had been stayed. The CBSA officer did not acknowledge any duty to verify the accuracy of the CPIC information, and her supervisor testified that this was her mistake. The NPS officer incorrectly believed that he had no duty to verify the CPIC results before making the arrest. He fell below the standard of a reasonable police officer in the circumstances. Since the NPS officer lacked reasonable grounds to arrest the respondents, there was tortious liability in relation to both respondents, and a s. 9 Charter violation as it relates to one of the respondents.
2. No.
The Court did not accept this submission. It agreed with the trial judge that it was not reasonable to arrest someone based only on CPIC system information before verifying it. This is a case-specific inquiry.
3. No.
The trial judge did not unduly focus on the Memorandum of Understanding and the CPIC Policy Manual in developing the standard of care. The documents provide context for the evaluation of the actions of the CBSA, NPS and RCMP, explain the nature of the relationships between law enforcement agencies, and outline the requirements of engaging with CPIC. In addition, the Court did not accept the appellant’s submission that the trial judge erred in only discussing the evidence of three of the seven officers who testified. The trial judge did not need to mention, accept or rely upon all of the evidence given by all of the parties.
Westmount-Keele Limited v. Nicholas C. Tibollo Professional Corporation, 2025 ONCA 401
[Huscroft, George and Favreau JJ.A.]
Counsel:
K. Borg-Olivier, for the appellant
S. Dewart and M. Bélanger, for the respondents
Keywords: Contracts, Torts, Solicitors Negligence, Damages, Mitigation, Civil Procedure, Limitation Periods, Discoverability, Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, Cassandro v. Glass, 2019 ONCA 654, Martin v. Goldfarb (1998), 41 O.R. (3d) 161 (C.A.), Westmount-Keele Limited v. Royal Host Hotels and Resorts, 2018 ONSC 5170
Facts:
The respondents represented the appellant in a prior litigation concerning a real estate transaction gone wrong: Westmount-Keele Limited v. Royal Host Hotels and Resorts, 2018 ONSC 5170. The appellants alleged that the sellers failed to deliver vacant possession, removed equipment, and caused property damage. However, most of the appellant’s claims were dismissed through summary judgment because they were statute-barred due to missed limitation periods. During the litigation, the appellant's former counsel (2008–2016) withdrew for medical reasons, requiring them to retain new counsel. The appellant later sued the respondents for solicitors negligence. At trial, they were awarded costs related to the summary judgment motion and fees billed by the lawyer who handled that motion and the appeal. However, costs were not awarded for the fees charged by former counsel (who did much of the work related to the motion), for the fees paid to the respondents, or for lost opportunity damages related to the delayed delivery of vacant possession.
Issues:
1. Did the trial judge base her reasons on factual findings that are palpably incorrect, which had a material impact on the quantum of damages awarded?
a. Did the trial judge err in refusing to award damages for legal fees paid by the appellant to the respondents?
b. Did the trial judge err in declining to award damages for the delay in delivery of vacant possession and associated construction delays?
2. Did the trial judge misapprehend or ignore critical evidence?
a. Did the trial judge err in finding that the appellant could not recover legal fees owed to their former counsel from the respondents?
b. Regarding the removal of equipment and chattels from the property?
3. Did the trial judge fail to consider all of the appellant’s claims or provide sufficient reasons for their dismissal?
4. Did the appellant’s omission to plead equitable set-off in prior litigation constitute a failure to mitigate their damages against the respondents.
Holding:
Appeal allowed in part.
Reasoning:
1.
a. Yes.
The trial judge erred in refusing to award damages for legal fees paid by the appellant to the respondents. Although the trial judge concluded that the respondents had provided “value” to the appellant via their legal work, she overlooked the fact that the respondents’ negligence rendered the bulk of the work irrelevant. Accordingly, the Court varied the judgment to include an additional $29,441.85 in legal fees that had been paid to the respondents.
b. No.
The Court upheld the trial judge’s decision to deny damages for the 15-day delay in the delivery of vacant possession. The Court found the appellant did not provide sufficient evidence of the consequences resulting from the delay. Aside from the testimony of one witness, the appellant’s claim relied on carrying cost calculations prepared by an individual lacking direct knowledge of the delays. This individual was neither qualified nor tendered as an expert witness. Accordingly, the trial judge was not required to accept his methodology or the figures presented. The Court found that the trial judge made reasonable findings in this regard based on the evidence that was available at the time.
2.
a. Yes.
The trial judge erred in concluding that the appellant could not recover legal fees owed to their former counsel from the respondents. Pursuant to s. 4 of the Limitations Act, 2002, claims must generally be commenced within two years of discovery. The appellant’s former lawyer made a verbal agreement with them not to pursue payment until the conclusion of the negligence action against the respondents. The trial judge viewed this as a mere “promise to forbear,” which did not suspend the limitation period. The Court held that the trial judge erred in this regard, as the lawyer could not have suffered any loss that would meet the definition of a discoverable claim under s. 5 of the Limitations Act, 2002 until after the present action against the respondents concluded. Accordingly, the lawyer would still had an enforceable claim against the appellant, and they were therefore entitled to recover that amount from the respondents. Accordingly, the Court varied the judgment to include $47,455 for the legal fees the appellant owes to its previous counsel.
b. No.
The Court agreed with the trial judge that the appellant had failed to prove their damages by not introducing evidence about the value of the lost assets, which could and should have been advanced at trial. It was open to the trial judge to reject the values asserted as speculative, as they were based on the information provided from an auctioneer who had been involved many years prior and who was not tendered as a witness at trial. The Court further rejected the appellant’s reliance on Martin v. Goldfarb, clarifying that while approximation is sometimes permitted, it applies only where damages are inherently difficult to assess. Here, the value of the equipment and chattels in question was not inherently difficult to assess. The appellant could have easily produced evidence that accurately quantified those damages: Cassandro v. Glass at para. 38, but failed to do so.
3. Yes.
The trial judge erred by not addressing the appellant’s request for reimbursement of municipal property taxes it paid while the seller remained in possession of the property. The record equipped the Court to decide the issue and thus avoid remitting the matter back to trial for consideration. Ultimately, the Court declined to award damages related to property taxes as it found that the evidence tendered by the appellant on that issue was weak.
4. No.
The Court rejected the respondents’ argument that the appellant’s failure to plead equitable set-off in prior litigation should be viewed as a failure to mitigate damages. Although equitable set-off is not subject to a limitation period, the Court found no authority supporting the notion that time-barred claims can be revived through such a pleading. Simply raising equitable set-off as a defence would not have necessarily allowed the appellant to circumvent the statutory bar on their claims. Accordingly, the Court concluded that the respondents had not established this as a reasonable mitigation step the appellant needed to take.
Hesch v. Langford, 2025 ONCA 404
[Paciocco, Monahan and Wilson JJ.A.]
Counsel:
S.J. Smith, for the appellant
B. Mitchell, for the respondent
Keywords: Contracts, Interpretation, Contra Proferentem, Insurance, Motor Vehicle, Uninsured Motorist Coverage, Ontario Automobile Policy OAP-1, 44R Endorsement, Priority, Insurance Act, R.S.O. 2000, c. I.8, s. 277, Family Law Act, R.S.O. 1990, c. F.3, Kahlon v. ACE INA Insurance, 2019 ONCA 774, Parslow v. Old Republic Insurance Co. of Canada, 2002 CarswellOnt 5176 (Ont. S.C.), Pilot Insurance Company v. Sutherland, 2007 ONCA 492, Benson v. Walt, 2018 ONCA 172, McGrath v. Arshad (2008) 158 (Ont. S.C.), The Standard Automobile Policy Annotated, Toronto: Butterworths, 1986, Auto Insurance Coverage Law in Ontario, 2nd ed., Toronto: LexisNexis Canada, 2021
Facts:
An uninsured motorist collided with another vehicle and killed the driver. The deceased’s spouse, dependent children, mother, stepfather, and brother brought claims for loss of care, guidance, and companionship under the Family Law Act.
Two insurers were named: Pafco Insurance Company (“Pafco”, the deceased’s insurer) and Kent and Essex Mutual Insurance Company (“Kent”, the deceased’s spouse’s insurer), each providing 44R family protection coverage endorsement. Pafco paid a settlement to the plaintiffs and sought contribution from Kent.
The motion judge dismissed Pafco’s motion against Kent, finding the deceased was not an “insured person” under her spouse’s 44R endorsement. Pafco appealed on the sole ground that the motion judge misinterpreted s. 1.6(a)(ii) of the 44R endorsement.
Issues:
Did the motion judge err in his interpretation of s. 1.6(a)(ii) of the 44R endorsement by finding the deceased was not an “insured person” under her spouse’s policy?
Holding:
Appeal allowed.
Reasoning:
Yes.
The motion judge erred in interpreting s. 1.6(a)(ii) of the 44R endorsement by treating it as containing two separate exclusions. The Court found that when properly interpreted, it contains one exclusion: coverage is denied where the person owns or leases the vehicle, unless family protection is in force on that vehicle. Since the deceased had family protection coverage on her own vehicle, she qualified as an “insured person” under her spouse’s policy with Kent. This interpretation is consistent with Parslow v. Old Republic Insurance Co. of Canada, which confirms that ownership does not exclude coverage if family protection is present.
The motion judge’s interpretation was grammatically flawed. The word “unless” modifies the ownership clause, not the provision in entirety. Had two exclusions been intended, the clause would have said “or”, not “unless”. Other provisions in the 44R (ss. 1.6(b), 7(i), and 18) supported this reading by assuming coverage exists when both vehicles have family protection. Section 22 of the 44R gives it priority over the OAP-1, so Special Condition 5 in the OAP-1 does not apply. Kent’s reliance on s. 277 of the Insurance Act was misplaced. That section governs primary liability policies, not 44R endorsements. Similarly, s.7(1) does not exclude coverage. It addresses how much is available to a claimant, not whether coverage exists.
For these reasons, the Court found that the deceased was insured under both policies and that all plaintiffs were eligible claimants under both 44R’s. Under s. 18(a)(ii), the spouse’s policy with Kent solely covers his excess damages. For the remaining plaintiffs, s. 18(d) applies and Kent and Pafco must share liability pro rata.
SHORT CIVIL DECISIONS
Johnson-Emanuel v. Emanuel, 2025 ONCA 402
[Copeland, Monahan and Rahman JJ.A.]
Counsel:
J. E., in person
C. J.-E., in person
Keywords: Family Law, Property, Equalization of Net Family Property, Child Support, Special or Extraordinary (Section 7) Expenses, Civil Procedure, Appeals, Perfection, Extension of Time, Panel Reviews, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), -Federal Child Support Guidelines (SOR/97-175), Hillmount Capital Inc. v. Pizale, 2021 ONCA 364
[Copeland, Monahan and Rahman JJ.A.]
Counsel:
J. Chen, for the appellant
D. Myers, for the respondents
Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Assignments, Termination, Damages, Prejudgment Interest, Post-judgment Interest, Civil Procedure, Cross-Appeals, Rules of Civil Procedure, r. 61.07(1)
Ontario Federation of All Terrain Vehicle Clubs v. Ireland, 2025 ONCA 411
[Miller, Paciocco and Coroza JJ.A.]
Counsel:
D.J. Spiller, for the appellant
H. Crawhall-Duk and C. R. Daoust, for the respondent
Keywords: Torts, Defamation, Defences, Truth, Fair Comment, Civil Procedure, Applications, Misnomer, Notices of Appearance, Procedural Fairness, Rules of Civil Procedure, rr. 38.07 and 5.04(2), Ormerod v. Strathroy Middlesex General Hospital (2009), 97 O.R. (3d) 321 (C.A.), Foulidis v. Ford, 2014 ONCA 530
[Huscroft, Trotter and Favreau JJ.A.]
Counsel:
J. Clark, for the appellant
J. Levitt, for the respondent
Keywords: Contracts, Real Property, Condominiums, Civil Procedure, Evidence, Credibility
Gallant v. Johnson, 2025 ONCA 419
[Huscroft, Trotter and Favreau JJ.A.]
Counsel:
W. McLennan, for the appellant
D.M. Fulton, for the respondents
Keywords: Contracts, Interpretation, Duty of Good Faith, Real Property, Commercial Leases, Rules of Civil Procedure, Rule 14.05(3)(d)
Oliveria Jr. v. Mencel, 2025 ONCA 420
[Huscroft, Trotter and Favreau JJ.A.]
Counsel:
M.O., in person
M. Saad, for the responding party, J. M.
M. Wright and Y. Kodsy, for the responding parties J.O. and J.M.
A. Iggers, for the responding parties S.G., R.G., R.G., G.G., and A.C.
Keywords: Civil Procedure, Appeals, Perfection, Extension of Time, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131
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