Court Of Appeal Summaries (July 28, 2025 - August 1, 2025)

Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of July 28 to August 1, 2025.

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Congratulations to Blaneys' very own Eric Golden and Summer Xia for the result they obtained in Hermina Developments Inc. v. Epireon Capital Limited. The Court dismissed a motion by the debtor whose only asset was the farmland in question to stay an order permitting the sale of that land by a mortgagee pending an appeal from that sale order. The Court found no irreparable harm, no unique characteristics of the property, and held that if the appellant is successful on appeal, any losses could be remedied by an award of damages. The balance of convenience also favored the respondent mortgagee.

The Court also dismissed a motion to stay an order permitting the sale of farmland pending an appeal in Stewart Estate v. Stewart. The order in that case authorized an estate trustee to sell farmland to pay outstanding debts owed to CRA. The motion had been brought by the beneficiaries under a will.

A majority of the Court in Purolator Inc. v. Canadian Union of Postal Workers dismissed a motion by Purolator to quash CUPW's appeal from an order enjoining it from conducting secondary picketing at a Purolator facility. The motion judge found that s. 102 of the Courts of Justice Act did not apply to the motion and granted the injunction under s. 101. Section 102 applies to injunctions in "labour disputes". The Court found s. 102 clearly applied, and that the judge erred in finding it did not. The appeal was therefore from an order under s. 102, and therefore there was an appeal under that section as of right to the Court, and no leave was required to appeal to the Divisional Court. In dissent, Gomery J. was of the view that the issue of whether the motion judge erred in finding that s. 102 did not apply was for the court hearing the appeal, not the Court on this motion to quash the appeal for want of jurisdiction. Since the injunction was only granted under s. 101 (the motion judge having rejected the application of s. 102), it was not an order made under s. 102. Therefore, it was an interlocutory order, the Court did not have jurisdiction to hear the appeal from that order and leave to appeal it was required from the Divisional Court.

In Ontario (Transportation) v. J & P Leveque Bros. Haulage Ltd., the Court allowed an appeal from an order that dismissed an action as out of time pursuant to a contractual limitation period. The contract contemplated that a referee's decision on any disputes between the parties would be made during the two-year contract. However, the referee's decision was made outside those to years. The motion judge's decision effectively immunized the referee's decision from scrutiny because it was delivered later. The Court concluded that this outcome resulted in a commercial absurdity. It determined that since the referee's decision was not made within the two years contemplated by the contract, the contractual limitation period did not apply at all and, instead, the statutory limitation period applied.

In Paradigm Change Consulting Inc. v. Boparai, the appellant persuaded the respondents (his parents and sister) to invest in various real estate schemes. The appellant fraudulently misrepresented the investment information and did not return most of the funds. The respondents obtained a Mareva injunction to prevent the sale of all the appellants' assets. The motion judge also granted the respondents' motion to amend their statement of claim and partial summary judgment and maintained the injunction. The appellants claimed that the motion judge erred in her decision and made reversible errors regarding evidence, credibility, and reasoning. The Court dismissed the appeal as having no merit and awarded substantial indemnity costs in favour of the respondents.

North House Foods Ltd. (Re) discussed in detail the application of s. 193 of the BIA to determine whether there is an appeal as of right or whether leave is required. A contractor sought leave to appeal the valuation at zero of its construction lien over the leasehold interest of the debtor that had made a proposal in bankruptcy. While leave to appeal was granted, the appeal was dismissed.

In Solmar Inc. v. Hall, the Court dismissed a motion by the Centre for Free Expression to intervene as a friend of the court in an appeal from the dismissal of an anti-SLAPP motion.

In Galati v. Toews, the Court dismissed a prominent lawyer's appeal from an order dismissing his defamation action under the anti-SLAPP provisions in s. 137.1 of the Courts of Justice Act. The dispute related to public criticism of the lawyer's handling of class action litigation against governments for COVID-19 pandemic policies, which resulted in the lawyer suing his critics.

Wishing all our readers an enjoyable Simcoe Day long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Hermina Developments Inc. v. Epieon Capital Limited, 2025 ONCA 559

Keywords: Contracts, Real Property, Mortgages, Enforcement, Power of Sale, Civil Procedure, Appeals, Stay Pending Appeal, Rules of Civil Procedure, r. 63.02, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Wilfert v. McCallum, 2017 ONCA 895, Cavalho Estate v. Verma, 2024 ONCA 222, Zafar v. Saijid, 2017 ONCA 919, M & M Homes Inc. v 2088556 Ontario Inc., 2020 ONCA 134, RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 S.C.R. 311

Stewart Estate v. Stewart, 2025 ONCA 575

Keywords: Wills and Estates, Estate Liabilities, Trustees, Powers, Sale of Trust Property, Civil Procedure, Appeals, Stay Pending Appeal, Rules of Civil Procedure, r.63.02(1), Hale v. Stewart, 2025 ONSC 2275, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311

Purolator Inc. v. Canadian Union of Postal Workers, 2025 ONCA 565

Keywords: Labour and Employment, Secondary Picketing, Constitutional Law, Freedom of Expression, Civil Procedure, Orders, Injunctions, Ex Parte (Without Notice), Appeals, Jurisdiction, Canadian Charter of Rights and Freedoms, s. 2(b), Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 101, 102, 19(1), Judicature Act, R.S.O. 1960, c. 197, s. 17(1), R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, Maple Leaf Sports & Entertainment Ltd. v. Pomeroy (1999), 49 C.L.R.B.R. (2d) 285 (Ont. Gen. Div.), Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R., Ontario Power Generation Inc. v. Society of Energy Professionals, [2005] O.J. No. 3822 (Ont. S.C.), Georgian Downs Limited v. Ontario Harness Horse Racing Association, 2007 CanLII 1341 (Ont. S.C.), AirTime Express Inc. v. Teamsters Local Union No. 419, 2017 ONSC 5401, Canadian Pacific Railway Company v. Gill et al., 2013 ONSC 256, Southern Sanitation Inc (Wasteco) v. Fiore, 2009 CanLII 35724 (Ont. S.C.), Metro Ontario Inc. v. Teamsters Local 938, [2019] O.J. No. 2060, Stamos v. Belanger, [1994] O.J. No. 2780 (Ont. C.A.), J. N. v. Durham Regional Police Service, 2012 ONCA 428, 284 C.C.C. (3d) 500, Paulpillai Estate v. Yusef, 2020 ONCA 655, Prescott & Russell (United Counties) v. David S. Laflamme Constructions Inc., 2018 ONCA 495, Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP, 2024 ONCA 251, Dal Bianco v. Deem Management Services Limited, 2020 ONCA 585, RREF II BHB IV Portofino, LLC v. Portofino Corporation, 2015 ONCA 906, per Gomery J.A. (dissenting), Hordo v. Zweig, 2021 ONCA 893, Ontario Medical Assn. v. Miller (1976), 14 O.R. (2d) 468 (C.A.), Deltro Group Ltd. v. Potentia Renewables Inc., 2017 ONCA 784, Laurentian Plaza Corp. v. Martin (1992), 7 O.R. (3d) 111 (C.A.), Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932, Wang v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 605, Report of the Royal Commission Inquiry into Labour Disputes, (Toronto: Frank Fogg Queen's Printer, 1968)

Ontario (Transportation) v. J & P Leveque Bros. Haulage Ltd., 2025 ONCA 573

Keywords: Contracts, Contract Interpretation, Civil Procedure, Construction Law, Summary Judgment, Standard of Review, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, 22, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, 2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 273, Toronto (City) v. W. H. Hotel Ltd., [1966] S.C.R. 434, Kentucky Fried Chicken Canada v. Scott's Food Services Inc. (1998), 114 O.A.C. 357, Boyce v. The Co-Operators General Insurance Company, 2013 ONCA 298

Paradigm Change Consulting Inc. v. Boparai, 2025 ONCA 569

Keywords: Torts, Fraudulent Misrepresentation, Civil Procedure, Partial Summary Judgment, Mareva Injunctions, Substantial Indemnity Costs, Rules of Civil Procedure, r. 20.04(2.1)

North House Foods Ltd. (Re), 2025 ONCA 563

Keywords: Bankruptcy and Insolvency, Proposals, Construction Liens, Valuation of Security, Civil Procedure, Appeals, Jurisdiction, Appeals as of Right, Leave to Appeal, Bankruptcy and Insolvency Act R.S.C. 1985, c. B-3, ss. 50, 50.1, 50.5, 58, 193, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6, Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, Construction Act, R.S.O. 1990 c. C30, Bankruptcy and Insolvency General Rules, C.R.C, c. 368, rr. 3, 31(2), Rules of Civil Procedure, r. 61.08(3), Re Mernick (1994), 24 C.B.R. (3d) 8 (Ont. Gen. Div.), Workgroup Designs Inc. (Re), 2008 ONCA 214, Ting (Re), 2021 ONCA 425 and [2021] SCCA No. 307, Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Company Ltd., 2012 ONCA 569, Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, Giardino (Re), 2011 ONCA 312, First National Financial GP Corporation v. Golden Dragon HO 10 Inc., 2019 ONCA 873, J.N. v. Durham Regional Police Service, 2012 ONCA 428, Ravelston Corp. (Re) (2005), 24 C.B.R. (5th) 256 (Ont. C.A.), Elias v. Hutchison, 1981 ABCA 31, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611, Comfort Capital Inc. v. Yeretsian, 2023 ONCA 282, Cosa Nova Fashions Ltd. v. The Midas Investment Corporation, 2021 ONCA 581, Peakhill Capital Inc. v. 1000093910 Ontario Inc., 2024 ONCA 558, KingSett Mortgage Corporation v. 30 Roe Investments Corp., 2022 ONCA 479, Crown Capital Private Credit Fund v. Mill Street & Co. Inc., 2022 ONCA 194, BCIMC Construction Fund Corporation v. 33 Yorkville Residences Inc., 2023 ONCA 1, 2003945 Alberta Ltd v. 1951584 Ontario Inc, 2018 ABCA 48, Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500, Isabelle v. The Royal Bank of Canada, 2008 NBCA 69, Downing Street Financial Inc v. 1000162497 Ontario Inc., 2024 ONCA 639, Romspen Investment Corporation v. Courtice Auto Wreckers Limited, 2017 ONCA 301, Kaiser (Re), 2012 ONCA 838, St. Anne-Nackawic Pulp Co. (Trustee of) v. New Brunswick (Minister of Business), 2005 NBQB 99, Bankruptcy of Woodland Windows Ltd., 2003 BCSC 497, Ontario Energy Savings L.P. v. 767269 Ontario Ltd., 2008 ONCA 350, Frohlich v. Ferraro, 2017 ONCA 978, Kaiman v. Graham, 2009 ONCA 77, Costanza v. Desjardin Financial Security Life Insurance Company, 2023 ONCA 54, Farber v. Goldfinger, 2011 ONSC 2044, Intercity Realty Inc. v. PricewaterhouseCoopers Inc. et al., 2024 ONSC 2400, Royal Bank of Canada v. Chesswood Group Ltd. et al., 2025 ONSC 1577

Solmar Inc. v. Hall, 2025 ONCA 570

Keywords: Torts, Defamation, Libel, Constitutional Law, Freedom of Expression, Civil Procedure, Anti-SLAPP, Appeals, Intervenors, Friends of the Court, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Rules of Civil Procedure, r. 13.02, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Animal Justice v. Ontario (Attorney General), 2024 ONCA 941, Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, Stolove v. Waypoint Centre for Mental Health Care, 2025 ONCA 246, Oakwell Engineering Limited v. Enernorth Industries Inc., 2006 CanLII 60327 (ON CA), Baldwin v. Imperial Metals Corporation, 2021 ONCA 114, 17044604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Stadium Corp. of Ontario Ltd. v. Toronto (City) (1992), 10 O.R. (3d) 203 (Div. Ct.)

Galati v. Toews, 2025 ONCA 568

Keywords: Torts, Defamation, Defences, Truth, Fair Comment, Malice, Conspiracy, Civil Procedure, Anti-SLAPP, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Supreme Court Civil Rules, B.C. Reg 168/2009, r. 9-5, Constitution Act, 1867, s. 92(13), Law Society Act, R.S.O. 1990. c. L.8, s. 4.2, Tai v. Canada (Citizenship and Immigration), 2010 FC 788, Galati v. Harper, 2014 FC 1088, Action4Canada v. British Columbia (Attorney General), 2022 BCSC 1507, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 25, Bent v. Platnick, 2020 SCC 23, Burjoski v. Waterloo Region District School Board, 2024 ONCA 811, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, Marcellin v. London (Police Services Board), 2024 ONCA 468, Hamalengwa v. Duncan (2005), 202 O.A.C. 233, Heydary Hamilton PC v. Muhammad, 2013 ONSC 4938, Byrne v. Maas, [2007] O.J. No. 4457 (S.C.), Kanak v. Riggin, 2017 ONSC 2837, Guergis v. Novak, 2013 ONCA 449, Grant v. Torstar Corp., 2009 SCC 61, Hansman v. Neufeld, 2023 SCC 14, Slavutych v. Baker et al., [1976] 1 S.C.R. 254, Teneycke v. McVety, 2024 ONCA 927, Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129

Short Civil Decisions

1461043 Ontario Limited (Nuvo Iron) v. Soldan Fence & Metals (2009) Ltd., 2025 ONCA 571

Keywords: Breach of Trust, Bankruptcy and Insolvency, Debts Surviving Bankruptcy, Civil Procedure, Orders, Default Judgments, Variation, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 178(1)(d), Yanic Dufresne Excavation Inc. v. Saint Joseph Developments Ltd., 2022 ONCA 556

CIVIL DECISIONS

Hermina Developments Inc. v. Epieon Capital Limited, 2025 ONCA 559

[Monahan J.A.]

Counsel:

Abela and C. Copland, for the moving party

Eric Golden and Summer Xia, for the responding party

Keywords: Contracts, Real Property, Mortgages, Enforcement, Power of Sale, Civil Procedure, Appeals, Stay Pending Appeal, Rules of Civil Procedure, r. 63.02, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Wilfert v. McCallum, 2017 ONCA 895, Cavalho Estate v. Verma, 2024 ONCA 222, Zafar v. Saijid, 2017 ONCA 919, M & M Homes Inc. v 2088556 Ontario Inc., 2020 ONCA 134, RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 S.C.R. 311

Facts:

The appellant and moving party purchased a 26.7-acre parcel of land in 1999. In 2008, the appellant registered two mortgages on the property, the first in favour of a non-party and the second in favour of the respondents in the principal amount of $4.25 million, with an annual interest rate of 14.875%. The appellants defaulted on both mortgages in January 2009. The respondents delivered a notice of sale under the second mortgage in March 2009. The sale process was interrupted when the director of the appellant damaged the For Sale signs and threatened to burn them.

The respondents obtained summary judgment on the second mortgage for approximately $4.77 million, plus interest, and possession of the property. Despite this, the appellants had not paid any amounts since 2009. As of February 3, 2025, $14,365,000 was outstanding.

After various efforts to sell the property between 2009 and 2021, the respondents issued a second notice of sale in October 2021 and entered into an agreement of purchase and sale (the "APS") with a third party. The transaction under the APS was scheduled to close on August 1, 2025.

Upon learning of the sale contemplated by the APS, the moving party sought an order preventing the closing of the transaction. The motion judge dismissed the motion and permitted the sale to proceed and imposed a sealing order on the APS and on the related valuation materials until closing.

The moving party sought a stay of the motion judge's order permitting the respondents to sell the Property, pending the determination of its appeal of the order. It argued that it met the test for a stay pending appeal under r. 63.02 of the Rules of Civil Procedure, which requires consideration of the following factors: 1) is there is a serious question to be tried on appeal; 2) will the moving party suffer irreparable harm if the application is refused; and 3) does the balance of inconvenience favour granting the stay.

If the stay was granted, the moving party also sought an order under s. 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 requiring the respondents to provide counsel for the moving party with the information sealed by the motion judge.

Issues:

Should the appellants be granted a stay of the motion judge's order permitting the respondents to sell the property?

Holding:

Motion dismissed.

Reasoning:

No.

The appellants failed to establish irreparable harm if the stay was not granted, and the balance of convenience militated against granting the stay.

The appellants argued that closing the sale transaction would render the appeal moot and cause irreparable harm, relying on M & M Homes Inc. v 2088556 Ontario Inc. However, the Court held that irreparable harm is harm that "either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other": RJR-MacDonald Inc. v Canada (Attorney General). Thus, the relevant question is not whether the moving party will be able to recover the property if successful on appeal but, rather, whether any losses resulting from the closing of the APS could be quantified and cured through an award of damages.

The Court stated that monetary damages might be insufficient if the Subject Property had some unique or distinctive characteristics. However, the Subject Property had no unique characteristics. The appellant failed to show that any potential losses resulting from the closing of the APS could not be quantified and cured through an award of damages or that the respondents lacked the financial ability to satisfy a monetary judgment.

The balance of convenience also militated against granting the stay. The appellant had no other asset. The respondents attempted to sell the property since 2009. The total amount owing exceeded the sale price, and with no prospect that the respondents would ever be able to recover such amounts from the appellant. On the other hand, if the sale transaction proceeded but is later found to have been in breach of the moving party's rights, such losses could be properly compensated through an award of damages against the respondents.

Stewart Estate v. Stewart, 2025 ONCA 575

[Lauwers J.A. (Motions Judge)]

Counsel:

J.M Fischer, for the moving party (M56133) and the responding party (M56136), L.S

R.W. Scriven, for the moving party (M56136) and the responding party (M56133), W. C. S

Lobl and A. Chen, for the responding parties (M56133 & M56136), J.H in her capacity as Estate Trustee of the Estate of W.A.S and in her capacity as Estate Trustee of the Estate of E.M.S, and E. S in his capacity as Estate Trustee of the Estate of E.M.S

Keywords: Wills and Estates, Estate Liabilities, Trustees, Powers, Sale of Trust Property, Civil Procedure, Appeals, Stay Pending Appeal, Rules of Civil Procedure, r.63.02(1), Hale v. Stewart, 2025 ONSC 2275, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311

Facts:

W.A.S.'s 1989 will granted his wife, E.M.S., a life interest in two farms, after which the farms were to pass to their sons—one farm ("R.S Farm") to R.S. for $50,000 and the other ("W.S Farm") to W.S. for $90,000. When E.M.S. died in 2018, the farms had escalated dramatically in value (to about $617,500 and $1,120,000 respectively) and the estates owed roughly $600,000 in tax and other debts, for which the Canada Revenue Agency had registered liens and threatened seizure. The estate trustee, J.H., sought court approval to sell the farms to satisfy these liabilities. L.S. (R.S.'s widow) and W.S. opposed the sales, maintaining they should be allowed to purchase the farms at the will's prices without regard to estate debts. The application judge authorized the sales, finding the trustee's discretion allowed her to liquidate or otherwise deal with the properties to pay the estate's obligations. L.S. and W.S. brought a motion to stay that order pending appeal.

Issues:

Should a stay pending appeal be granted?

Holding:

Motion dismissed.

Reasoning:

No.

In determining whether a stay pending appeal is in the interests of justice, the Court will consider (i) a preliminary assessment of the merits to ensure that there is a serious question to be tried; (ii) whether the applicant would suffer irreparable harm if the application were refused; and (iii) an assessment of the balance of inconvenience as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

The Court held that there was no serious question to be decided. The moving parties sought to have the trustee exercise her discretion not to sell both properties outright. Instead, they wanted her to enter into an agreement that would allow them to receive the properties while still enabling the estate to pay all of its debts. Although the moving parties believed they had the best chance of achieving this outcome if the estate trustee remained in possession of the farms, thereby allowing them to exercise their options to purchase under the Will, the Court concluded that they had not raised a serious question to be determined on appeal that would justify granting a stay.

The Court disagreed with the moving parties' assertions of irreparable harm, as they could not overcome the fact that both farms were rented to third parties. The Court held that as the farms were not "unique", on these facts, and the issues appeared to be merely financial, there was no irreparable harm.

The Court found that the balance of convenience also favoured the estate trustee's position. While L.S argued for maintaining the status quo, claiming the estate would not be harmed by waiting for the appeal, the estate trustee warned that further delays could increase costs and risk the CRA seizing the farm properties altogether to cover tax liabilities.

Purolator Inc. v. Canadian Union of Postal Workers, 2025 ONCA 565

[Gillese, Gomery and Pomerance JJ.A.]

Counsel:

C.J. Rae and A. Gilani, for the moving party/respondent

S.J. Moreau and R. White, for the responding party/appellant

Keywords: Labour and Employment, Secondary Picketing, Constitutional Law, Freedom of Expression, Civil Procedure, Orders, Injunctions, Ex Parte (Without Notice), Appeals, Jurisdiction, Canadian Charter of Rights and Freedoms, s. 2(b), Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 101, 102, 19(1), Judicature Act, R.S.O. 1960, c. 197, s. 17(1), R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, Maple Leaf Sports & Entertainment Ltd. v. Pomeroy (1999), 49 C.L.R.B.R. (2d) 285 (Ont. Gen. Div.), Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R., Ontario Power Generation Inc. v. Society of Energy Professionals, [2005] O.J. No. 3822 (Ont. S.C.), Georgian Downs Limited v. Ontario Harness Horse Racing Association, 2007 CanLII 1341 (Ont. S.C.), AirTime Express Inc. v. Teamsters Local Union No. 419, 2017 ONSC 5401, Canadian Pacific Railway Company v. Gill et al., 2013 ONSC 256, Southern Sanitation Inc (Wasteco) v. Fiore, 2009 CanLII 35724 (Ont. S.C.), Metro Ontario Inc. v. Teamsters Local 938, [2019] O.J. No. 2060, Stamos v. Belanger, [1994] O.J. No. 2780 (Ont. C.A.), J. N. v. Durham Regional Police Service, 2012 ONCA 428, 284 C.C.C. (3d) 500, Paulpillai Estate v. Yusef, 2020 ONCA 655, Prescott & Russell (United Counties) v. David S. Laflamme Constructions Inc., 2018 ONCA 495, Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP, 2024 ONCA 251, Dal Bianco v. Deem Management Services Limited, 2020 ONCA 585, RREF II BHB IV Portofino, LLC v. Portofino Corporation, 2015 ONCA 906, per Gomery J.A. (dissenting), Hordo v. Zweig, 2021 ONCA 893, Ontario Medical Assn. v. Miller (1976), 14 O.R. (2d) 468 (C.A.), Deltro Group Ltd. v. Potentia Renewables Inc., 2017 ONCA 784, Laurentian Plaza Corp. v. Martin (1992), 7 O.R. (3d) 111 (C.A.), Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932, Wang v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 605, Report of the Royal Commission Inquiry into Labour Disputes, (Toronto: Frank Fogg Queen's Printer, 1968)

Facts:

The Canadian Union of Postal Workers (CUPW) picketed outside a Purolator facility during Canada Post's nationwide strike in November 2024, significantly impacting Purolator's operations. Purolator brought an urgent ex parte interim injunction to restrain the picketing. The motion judge held that s. 102 of the Courts of Justice Act (CJA) (which covers the procedure for dealing with injunction applications in "labour disputes") did not apply because there was no labour dispute between Purolator and the Union's picketers. The CUPW disagreed and moved to set the injunction aside, arguing that CJA s. 102 did apply because there was a connection between secondary picketing and a labour dispute. The motion judge set aside the CUPW's motion and extended Purolator's injunction for another 30 days.

CUPW simultaneously filed for leave to appeal the orders to the Divisional Court and appealed to the Court of Appeal. Purolator brought its own motion to ONCA to quash the appeal under lack of jurisdiction because CUPW's appeal lay only to the Divisional Court, with leave.

Issues:

Did the Court have jurisdiction to hear the appellant's appeal of the injunctions?

Holding:

Motion dismissed.

Reasoning:

Majority: Yes.

The Court held that the secondary picketing in this case to be connected to a labour dispute. Accordingly, CJA s. 102 applied, and therefore under that section, there was an automatic right of appeal to the Court without leave. The section explicitly provided that the parties did not need to be in an employer-employee relationship.

The Court explored the legislative intent behind broadening the definition of "labour dispute". The intent was evidently to ensure a uniform standard applied to all forms of picketing, including secondary picketing. This broadening also aimed to limit ex parte injunctions in labour contexts.

The Court then applied the Supreme Court's Pepsi-Cola decision that found secondary picketing was generally lawful and did away with the distinction between primary and secondary picketing, as supporting the view that s. 102 applied to secondary picketing. While protection from economic harm is an important value capable of justifying limitations on freedom of expression, it cannot be accorded pre-eminent importance over all other values, including free expression.

Gomery, J.A. (dissenting): No.

The appeal route is determined by the nature and substance of the order. If it is an order made under s. 101 of the CJA, then an appeal lies with leave to the Divisional Court under s. 19(1)(b) of the CJA. If made under s. 102, then the appeal is to the Court as of right. The motion judge explicitly rejected that s. 102 applied and made his order under s. 101. Therefore, the order was made under s. 101, not 102, and leave to appeal to the Divisional Court was required. The Court had no jurisdiction to hear the appeal. It was not for the Court on this motion to determine whether the motion judge was wrong to find that s. 102 applied. That is for the Court hearing the appeal to determine.

Ontario (Transportation) v. J & P Leveque Bros. Haulage Ltd., 2025 ONCA 573

[Roberts, Miller and Pomerance JJ.A.]

Counsel:

W.R. MacLarkey and A. Jin, for the appellant

E.A.F. Grigg and F.R. Lozon, for the respondent

Keywords: Contracts, Contract Interpretation, Civil Procedure, Construction Law, Summary Judgment, Standard of Review, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, 22, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, 2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 273, Toronto (City) v. W. H. Hotel Ltd., [1966] S.C.R. 434, Kentucky Fried Chicken Canada v. Scott's Food Services Inc. (1998), 114 O.A.C. 357, Boyce v. The Co-Operators General Insurance Company, 2013 ONCA 298

Facts:

A contract between the appellant, MTO, and the respondent, Leveque, required Leveque to rehabilitate 27 kilometres of Highway 60. The general conditions set out a detailed, multi-step claims review process. A party contesting the final step in the process—the referee decision—was required to file a notice of protest and engage in alternative dispute resolution ("ADR") before commencing litigation. These steps were to be completed within two years of the date of contract completion.

That did not happen in this case. The referee decision, which ruled against MTO, was not released until after the two-year period had expired. The question therefore was whether, in these circumstances, the parties were bound by the contractual two-year period.

Once the referee decision was released, MTO acted quickly to register its notice of protest and invoke ADR. It subsequently commenced a civil action by filing a statement of claim against Leveque, seeking recovery of the $1.8 million awarded to Leveque by the referee panel. Leveque brought a motion for summary judgment. It argued that the contractual two-year deadline ousted the two-year limitation period under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, and that MTO was therefore out of time to bring its claim, having commenced litigation more than two years after contract completion. The motion judge agreed and awarded Leveque summary judgment.

MTO appealed, arguing that the motion judge erred in his interpretation of the contract.

Issues:

Holding:

Appeal allowed.

Reasoning:

1. The standard of review on the interpretation of the contractual limitation period in this case was the non-deferential standard of correctness because (i) the contract at issue was a standard form contract, (ii) the Court's interpretation had precedential value, and (iii) no factual matrix specific to the parties existed to guide the interpretive process. The standard of review from the motion judge's findings of fact was the deferential standard of palpable and overriding error.

2. Yes.

The Court first reviewed the application principles of contractual interpretation. Contractual interpretation must be grounded in the text and read in light of the entire contract. The contract must be read as a whole, "giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract": Sattva, at para. 47. Given that the contract in this case contains standard form clauses, there are few "surrounding circumstances" bearing on the analysis. The surrounding circumstances are those relating to the overarching commercial objective. Postponing the claims review process, and any ensuing litigation, until after contract completion allowed the necessary work to be done without the distraction of outstanding or ongoing disputes. Finally, a commercial contract is to be interpreted in keeping with sound commercial principles and good business sense, so as to avoid commercial absurdity: 2484234 Ontario Inc. v. Hanley Park Developments Inc., at para. 64; Toronto (City) v. W. H. Hotel Ltd., at p. 440. Commercial contracts are to be construed in accordance with sound commercial principles and good business sense, objectively rather than from the perspective of one contracting party: Kentucky Fried Chicken Canada v. Scott's Food Services Inc., at para. 27.

The motion judge considered the parties' conduct during the claims review process. He focused on whether they could have completed the process within the designated two-year period. He found that they could have, but for 118 days of delay caused by MTO. He found that it was "not inevitable" that the referee decision would be issued outside of the time limit and that, therefore, "the plain meaning of [the limitation clause] plainly works".

Whatever the respective delays caused by each of the parties, the Court not view this case as turning on a minute parsing of time periods, or an assignment of blame for delay. The Court agreed with MTO that the ultimate question was not whether the claims review process might have been, or could have been, completed within the two-year period. Nor was it whether one party was more at fault for the delay than the other. Rather, the question was how to interpret the language of the contract when, for whatever reason, the claims review process was not completed within that period.

The contract set a time limit of two years from contract completion. The plain language of the contract, viewed as a whole, contemplated that the referee decision would be released during that period. It followed that the two-year period did not bind the parties when the referee decision was delivered outside of the two-year period.

The contract stipulated that the referee decision was provisionally binding on the parties and that the parties were to abide by the decision, such compliance being without prejudice to protest it. The parties cannot be provisionally bound by a decision that does not exist. Nor can a party protest a decision that has not been released. Without a decision, there is no way of knowing who should protest and on what basis. There is similarly no ability to engage in meaningful ADR before litigation. If one accepts the premise that a decision cannot be protested until it is released, and if, as here, the decision is released after the two-year period has expired, compliance with the two-year contractual period is impossible. To apply the contractual two-year limitation in the circumstances of this case would be to effectively deprive MTO of any meaningful ability to challenge the referee decision and any ability to commence litigation.

These consequences were not merely unpalatable; they were contrary to common sense and led to commercial absurdity. It is commercially absurd to require a party to protest a decision that has not yet been released, just as it is absurd to conclude that a decision rendered late is, for that reason alone, final and binding on the parties.

The motion judge's determination that the contractual limitation period had also ousted the statutory limitation period under s. 22 of the Limitations Act, 2002 was also rejected. The contract in this case was a business agreement. For purposes of s. 22 of the Limitations Act, 2002, it may lengthen the limitation period beyond that set by statute. This is because the plain language of the contract postpones the resolution of disputes and does not start the clock until contract completion. If a contract takes five years to complete, the claims review process will not commence until the five-year mark, and then will allow two years for the steps to be completed. In that instance, the limitation period may well exceed the two years set by statute. The language of the contract explicitly authorizes this departure from the statutory limitation period. The general conditions of the contract did not, conversely, expressly authorize a reduction of the statutory period. Nor did they provide that a decision released outside of the two-year period was effectively immune from review. "A court faced with a contractual term that purports to shorten a statutory limitation period must consider whether that provision in 'clear language' describes a limitation period, identifies the scope of the application of that limitation period, and excludes the operation of other limitation periods": Boyce v. The Co-Operators General Insurance Company, at para. 20. No such clear language appeared in the contract in this case. It followed that where a decision that is part of the claims review process is released outside of the two-year contractual period, that two-year period will no longer bind the parties. Instead, the statutory limitation period will apply. MTO's claim was therefore not statute-barred.

Paradigm Change Consulting Inc. v. Boparai, 2025 ONCA 569

[Roberts, Pomerance and Rahman JJ.A.]

Counsel:

N.S.B, acting in person

S. Bhangu, for the appellants

S. Kamalie and M. Campbell, for the respondents

Keywords: Torts, Fraudulent Misrepresentation, Civil Procedure, Partial Summary Judgment, Mareva Injunctions, Substantial Indemnity Costs, Rules of Civil Procedure, r. 20.04(2.1)

Facts:

The appellant, NSB, is a former mortgage broker who had his license revoked due to fraudulent dealings with clients. He is the sole owner and officer and/or director of the corporate appellants, whose primary purpose was to purchase real estate holdings for NSB. NSB is related by marriage to the respondents, a married couple in their 70s (the "parents") and their adult daughter. He persuaded the respondents to invest over $1 million in various investment schemes through his corporation. The respondents' investment funds included $600,000 obtained through a home equity loan on the parents' residence and substantial funds provided by their daughter through her company, the corporate respondent, Paradigm Change Consulting Inc.

Once the initial investment in a private mortgage loan came due, the appellants convinced the respondents to reinvest in a condominium development in North Bay, Ontario, which included 744 Lakeshore Road ("the Lakeshore Property", wholly called "the North Bay project"). The development did not come to fruition and the respondents later discovered that the development was owned by two of the corporate appellants. The respondents provided NSB with another $400,000, believing it would be placed in a family trust. The appellants did not return any funds, other than $95,200 to help cover the parents' home equity loan interest.

The respondents initiated legal action to recover their losses and obtained a Mareva injunction to prevent the sale of all the appellants' assets, including the North Bay Project. They brought a motion for summary judgment and to amend their statement of claim. The appellants brought a motion to dissolve the Mareva injunction entirely, or, in the alternative, to permit the sale of the Lakeshore property only as an exception to the injunction. The motion judge granted the respondents' motion to amend their statement of claim, partially granted the summary judgment motion, and continued the Mareva injunction over the North Bay project, declining to allow the sale of the Lakeshore Property. The motion judge found that NSB's actions were fraudulent, as he appeared to have received and re-invested the original investment funds, when he never actually received the funds. The respondents suffered damages due to the false assurances and promises NSB made to defraud them. The motion judge ordered the appellants to repay $1,617,679.53 to the respondents and directed that there be a trial of the issues of what further damages are owed to the respondent. She awarded the respondents costs in the amount of $89,205.16 payable within 30 days due to NSBs "reprehensible, scandalous and outrageous conduct".

Issues:

Holding:

Appeal dismissed.

Reasoning:

There were no triable issues or issues of credibility concerning the amounts that the appellants admitted owing to the respondents which required a trial, nor was there a remote possibility that ordering a trial of the discrete remaining issues would result in inconsistent findings or any prejudice to the appellants.

The Court rejected the appellants' argument that the motion judge erred in continuing the Mareva injunction and in not permitting the sale of the Lakeshore property. Her findings regarding NSB's past fraudulent conduct and the risk of further harm to the respondents justified maintaining the injunction.

The motion judge acted within her powers under r. 20.04(2.1) of the Rules of Civil Procedure, and there was sufficient evidence to make factual findings and apply the law fairly. She found that NSB engaged in fraudulent misrepresentation in his dealings with the respondents, causing the respondents to suffer damages. The Court did not see any reversible error in the motion judge's reasoning, as it was firmly rooted in the record, and it adequately explained how and why she made her decision.

The appellants did not identify any errors in principle or law but rather challenged the motion judge's findings of fact and sought to have the evidence reweighed, which is not the role of the Court.

Since the appeal had no merit and the appellants repeated the same arguments rejected by the motion judge, the respondents were entitled to substantial indemnity costs, as the Court noted that they should not have been put to the expense of responding to this appeal.

North House Foods Ltd. (Re), 2025 ONCA 563

[Tulloch C.J.O., Pepall and Pomerance JJ.A.]

Counsel:

D. Debenham, for the appellant, Seabrook Bros. Mechanical Ltd.

J. Siwiec, for the respondent, North House Foods Ltd.

E.P. Shea, for the respondent Proposal Trustee, Doyle Salewski Inc.

Keywords: Bankruptcy and Insolvency, Proposals, Construction Liens, Valuation of Security, Civil Procedure, Appeals, Jurisdiction, Appeals as of Right, Leave to Appeal, Bankruptcy and Insolvency Act R.S.C. 1985, c. B-3, ss. 50, 50.1, 50.5, 58, 193, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6, Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, Construction Act, R.S.O. 1990 c. C30, Bankruptcy and Insolvency General Rules, C.R.C, c. 368, rr. 3, 31(2), Rules of Civil Procedure, r. 61.08(3), Re Mernick (1994), 24 C.B.R. (3d) 8 (Ont. Gen. Div.), Workgroup Designs Inc. (Re), 2008 ONCA 214, Ting (Re), 2021 ONCA 425 and [2021] SCCA No. 307, Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Company Ltd., 2012 ONCA 569, Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, Giardino (Re), 2011 ONCA 312, First National Financial GP Corporation v. Golden Dragon HO 10 Inc., 2019 ONCA 873, J.N. v. Durham Regional Police Service, 2012 ONCA 428, Ravelston Corp. (Re) (2005), 24 C.B.R. (5th) 256 (Ont. C.A.), Elias v. Hutchison, 1981 ABCA 31, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611, Comfort Capital Inc. v. Yeretsian, 2023 ONCA 282, Cosa Nova Fashions Ltd. v. The Midas Investment Corporation, 2021 ONCA 581, Peakhill Capital Inc. v. 1000093910 Ontario Inc., 2024 ONCA 558, KingSett Mortgage Corporation v. 30 Roe Investments Corp., 2022 ONCA 479, Crown Capital Private Credit Fund v. Mill Street & Co. Inc., 2022 ONCA 194, BCIMC Construction Fund Corporation v. 33 Yorkville Residences Inc., 2023 ONCA 1, 2003945 Alberta Ltd v. 1951584 Ontario Inc, 2018 ABCA 48, Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500, Isabelle v. The Royal Bank of Canada, 2008 NBCA 69, Downing Street Financial Inc v. 1000162497 Ontario Inc., 2024 ONCA 639, Romspen Investment Corporation v. Courtice Auto Wreckers Limited, 2017 ONCA 301, Kaiser (Re), 2012 ONCA 838, St. Anne-Nackawic Pulp Co. (Trustee of) v. New Brunswick (Minister of Business), 2005 NBQB 99, Bankruptcy of Woodland Windows Ltd., 2003 BCSC 497, Ontario Energy Savings L.P. v. 767269 Ontario Ltd., 2008 ONCA 350, Frohlich v. Ferraro, 2017 ONCA 978, Kaiman v. Graham, 2009 ONCA 77, Costanza v. Desjardin Financial Security Life Insurance Company, 2023 ONCA 54, Farber v. Goldfinger, 2011 ONSC 2044, Intercity Realty Inc. v. PricewaterhouseCoopers Inc. et al., 2024 ONSC 2400, Royal Bank of Canada v. Chesswood Group Ltd. et al., 2025 ONSC 1577

Facts:

North House Foods Ltd. ("North House") is a manufacturer, co-packer, and distributor of natural and organic food and beverage products. It operated from a rented building that was being renovated, but the COVID-19 pandemic caused construction delays and there were cost overruns. On March 16, 2023, North House started formal insolvency proceedings by filing a Notice of Intention to Make a Proposal. Later, on May 30, 2023, it filed a Division I Proposal which was accepted by its unsecured creditors on June 23, 2023, and then approved by the court on July 7, 2023. Doyle Salewski Inc. (the "Proposal Trustee") is the trustee under the proposal. North House made these proposals under the Bankruptcy and Insolvency Act ("BIA"). The BIA provisions help insolvent businesses to restructure so that when the proposal is accepted and approved by the court, the business will continue to operate.

In its proposal, North House estimated that its assets were worth about $3,658,897.31 and its liabilities around $11,439,174. The largest secured creditor, Centurion Financial Trust, was owed more than half of North House's total liabilities. North House also owed at least around $1,127,005 to the general contract, Robert Construction General Contractor Inc ("Robert Construction"), which later went bankrupt.

The appellant was a subcontractor of Robert Construction, worked on the leasehold premises, and holds a judgment for $291,467.31 against Robert Construction. The appellant also registered and perfected a construction lien for that amount against North House's leasehold interest, after receiving a lifting of the stay of proceedings to do so.

In its proposal, North House valued the appellant's lien at nil. The Proposal Trustee accepted the appellant's claim in the full amount but found the proposed assessed value of nil to be reasonable. This meanτ the appellant would be an unsecured creditor, rather than a secured or partially secured creditor for the purposes of the proposal.

The appellant asked the motion judge for an order that the proposed assessed value of its security be amended and to be treated as a secured creditor for the full amount of its claim. The motion judge dismissed the application, finding that the appellant failed to show the lien against North House's leasehold interest had any realizable value. The judge concluded that, even if a sale of the lease were possible, it was highly unlikely to generate any net value for the appellant due to competing claims, the condition of the lease, and the nature of the security. The appellant's expert also lacked relevant experience and the proposed valuation was theoretical, so he declined to revise the assessed value of the security.

Issues:

Holding:

Appeal dismissed.

Reasoning:

While there was no appeal as of right, leave to appeal should be granted.

The Court then went into some detail review Section 193 of the BIA. It provides for appeals as of right in the following types of cases, (a) if the point at issue involves future rights, (b) if the order or decision is likely to affect other cases of a similar nature in the bankruptcy proceedings, (c) if the property involved in the appeal exceeds in value ten thousand dollars, (d) from the grant of or refusal to grant a discharge if the aggregate unpaid claims or creditors exceed five hundred dollars, and (e) in any other case by leave of a judge of the Court of Appeal.

The appellant relied on (a), (b), and (c) to support its position that leave to appeal was not required. The respondents did not oppose the request for leave and agreed that the appeal fell under ss. 193(b) and (c). Jurisdiction must be present under one of (a) through (d) or must be sought under (e).

Under s. 193(a), the primary question is whether the rights engaged in an appeal are future rights or presently existing rights that are exercisable in the future. Future rights are those which could not presently be asserted but will come into existence in the future. They do not include procedural rights or commercial advantages or disadvantages that may accrue from the order challenged on appeal. The rights engaged by this appeal crystallized before the order under appeal, specifically, the appellant had already registered a construction lien against North House's leasehold interest. This is an existing right rather than a future right, therefore the appellant does not have a right of appeal under s. 193(a).

In terms of s. 193(b), the order under appeal "must concern 'real disputes' likely to affect other cases raising the same or similar issues in the same bankruptcy or receivership proceedings" (2403177 Ontario Inc). The cases must be in the same proceeding and the same or similar issues in this proceeding were not brought to the court's attention in other cases. The argument that this appeal will broadly impact lien claimants in bankruptcy proceedings was insufficient to trigger a right of appeal under this section. Therefore, s. 193(b) could not ground the court's jurisdiction.

S. 193(c) has been narrowly interpreted, as the $10,000 qualification is broad, and most cases would meet that description. Accordingly, in addition to the monetary requirement, an appellant must meet three criteria: the order under appeal must be (i) more than procedural in nature, (ii) involve the value of the debtor's property, and (iii) result in a loss to the appellant. In this case, the appellant cannot establish the third required criterion. The Court considered the operative effect of the order sought to be appealed and questioned whether it resulted in a loss. Rather than looking at the total value of the property involved in the dispute, the Court looks at the value of the actual loss that resulted from the order under appeal. In this case, the operative effect of the order under appeal did not result in a loss. The proposed assessed value of the appellant's security was nil. The motion judge did not disturb the nil valuation, and so there was no loss. Therefore, the appellant does not have an appeal as of right.

To be successful in a request for leave to appeal under s. 193(e), an appellant must address the procedural hurdle presented by rule 31(2) of the Bankruptcy and Insolvency General Rules (the "BIA Rules") and satisfy the substantive test for leave. As outlined in Pine Tree Resorts, the substantive test for leave to appeal under s. 193(e) is whether the proposed appeal (a) raises an issue that is of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole, and is one that the Court should therefore consider and address, (b) is prima facie meritorious, and (c) would unduly hinder the progress of the bankruptcy/insolvency proceedings. These are not hard and fast requirements, but rather are factors to consider in the exercise of discretion.

One requirement is that the notice of appeal must include the application for leave to appeal. Typically, motions for leave to appeal under s. 193(e) are to be brought to a single judge in chambers but, in some circumstances, a motion may be heard by a panel. Additionally, in the past the Court has been inclined to grant leave under s. 193(e) where the appeal raised a matter of statutory interpretation of some importance and where it would be helpful for the Court to resolve the questions raised by the parties. The appellant did not follow the procedural requirements, as it did not bring a motion for leave before a single judge or a panel and only did so at the hearing in response to the panel's question regarding whether this was an appeal as of right or whether leave was required. Additionally, the notice of appeal did not include an application for leave to appeal, as required by s. 31(2) of the BIA Rules. The BIA Rules do not acknowledge the consequences of failure to comply, but generally, in these circumstances, leave should be refused. However, in rare cases, rule 61.08(3) of the Rules of Civil Procedure and Rule 3 of the BIA Rules are used to address such situations.

All parties were of the view that there was an appeal as of right from the order of the motion judge and were unopposed to the Court hearing the appeal. This is a factor to take into account, as well as the substantive test for leave to appeal under s. 193(e). The Court was of the view that reliance on Rule 3 of the BIA Rules and r. 61.08(3) of the Rules of Civil Procedure was warranted. This case appears to represent the first time that the application of s. 50.1(4) of the BIA has been considered by an appellate court and raises an issue that is of general importance to the practice of bankruptcy. The appeal was arguable and there was no suggestion that hearing it at this stage would unduly hinder the progress of bankruptcy proceedings. The Court was satisfied that, in the unique circumstances of this case, an order permitting the appellant to amend its notice of appeal to leave nunc pro tunc to seek leave to appeal was appropriate. The court also granted leave to appeal under s. 193(e) of the BIA.

The motion judge did not err in his interpretation and application of s. 50.1(4) of the BIA.

The appellant first submitted that the motion judge erred in placing the onus on the appellant to value its security and its underlying collateral, arguing that it only needed to prove the amount of debt and the existence of security. The Court disagreed, finding that under s. 50.1(4) of the BIA, it was the appellant who must bring the application to challenge the assessed value. It was not enough to simply prove the debt and the existence of security. The appellant had to establish, on a balance of probabilities, that it could realize more money by enforcing its security in comparison with the proposed assessed value set out in the Proposal.

Second, the appellant submitted that the motion judge failed to apply a broad, liberal interpretation to the provisions of the Construction Act. The motion judge found that the appellant had no right to seize and sell the leasehold interest as it had no lien judgment and, in any event, an order for sale pursuant to such a judgment was discretionary in nature. The motion judge also noted that if fairness were the primary concern, the court would have also been required to consider whether it would be fair to give the appellant priority over the general body of unsecured creditors, many of whom were owed far more than the appellant. The Court rejected this submission.

Third, the appellant argued that the motion judge's consideration of North House's leasehold interest was flawed. As noted by the motion judge, two of the impediments to realizing value on a forced sale of the leasehold interest in this case are that: (a) the lease provides that it may not be assigned without consent of the landlord who has the sole and unfettered discretion to refuse, and (b) the premises are "cut up" into food preparation sections such that a new tenant would likely have to gut the premises before installing its own leasehold improvements. The motion judge accepted that the court may have the right to override, but he reasoned that "the fact that the lease may not be assigned without either the consent of the landlord or by litigating this question must be taken into account." The appellant also did not present evidence from any willing buyer or expressions of interest from any potential purchaser of an assignment of the lease, even assuming some of the limitations embedded in such a purchase could be overcome. The Court agreed with the motion judge and dismissed this argument.

The appellant's fourth submission was that the letter from PH to the Proposal Trustee's was inadmissible as expert evidence. No objection was made to the admission of PH's letter before the motion judge. The appellant did not seek to cross-examine the Proposal Trustee, nor did it pose any written questions of the Proposal Trustee on its report. Therefore, it was reasonable for the motion judge to accept that assessment.

Solmar Inc. v. Hall, 2025 ONCA 570

[Roberts J.A.]

Counsel:

M. Donald, for the proposed intervener, Centre for Free Expression

W. C. McDowell and D. Knoke, for the respondents/responding parties (plaintiffs)

No one appearing for the defendant/appellant, SH]

Keywords: Torts, Defamation, Libel, Constitutional Law, Freedom of Expression, Civil Procedure, Anti-SLAPP, Appeals, Intervenors, Friends of the Court, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Rules of Civil Procedure, r. 13.02, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Animal Justice v. Ontario (Attorney General), 2024 ONCA 941, Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, Stolove v. Waypoint Centre for Mental Health Care, 2025 ONCA 246, Oakwell Engineering Limited v. Enernorth Industries Inc., 2006 CanLII 60327 (ON CA), Baldwin v. Imperial Metals Corporation, 2021 ONCA 114, 17044604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Stadium Corp. of Ontario Ltd. v. Toronto (City) (1992), 10 O.R. (3d) 203 (Div. Ct.)

Facts:

The plaintiffs brought a defamation action against the defendant because of the defendant's public posts on Facebook commenting on and criticizing the plaintiffs. Specifically, the defendant accused the plaintiffs of corrupt practices, including a history of bribing public officials in exchange for development approvals. In response to demands from plaintiff's counsel, the defendant removed the post but did not apologize, stating that he would bring a motion under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act ("CJA") to dismiss the action if the plaintiffs sued him.

The plaintiffs sued the defendant and his anti-SLAPP motion was dismissed. The motion judge applied the criteria under s. 137.1 and, while he accepted that the defendant's Facebook posts were related to a matter of public interest, he ultimately found that there were grounds to believe that the posted allegations were defamatory to the plaintiffs and that there were no grounds to believe the defendant had a valid defence to the action.

The defendant appealed, challenging the motion judge's factual findings and s. 137.1 analysis. The appeal has been perfected.

On this motion, the proposed intervener, Centre for Free Expression ("CFE"), sought leave to intervene as a friend of the court under r. 13.02 of the Rules of Civil Procedure. The plaintiffs opposed the motion.

Issues:

Should CFE be granted leave to intervene in the appeal as a friend of the Court?

Holding:

Motion dismissed.

Reasoning:

No.

The following factors should be considered in determining whether to grant leave to intervene as a friend of the Court: the nature of the case; the issues which arise; and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties. To meet this test, the proposed intervener usually has to satisfy at least one of the following three criteria: (1) the proposed intervener has a real, substantial and identifiable interest in the subject matter of the proceedings; (2) the proposed intervener has an important perspective distinct from the immediate parties; or (3) the intervener is a well-recognized group with a special expertise and a broadly identifiable membership base. The overarching consideration is whether the proposed intervener can be of assistance to the court in providing a different perspective that was not already addressed by the parties.

Even though CFE met the first two criteria, intervention should be granted sparingly and only where it can be of real assistance to the court. While constitutional cases may provide a larger scope for intervention, that was not the case for private disputes, even if those disputes have public interest components.

Additionally, CFE was proposing to expand and reframe some of the issues in the case beyond the pleaded issues, which the Court found unnecessary for the motion's proper adjudication. The Court also found that many of CFE's submissions essentially repeated the defendant's submissions.

Galati v. Toews, 2025 ONCA 568

[Harvison Young, Zarnett and Favreau JJ.A.]

Counsel:

P. Slansky, for the appellant

T. Gleason and A. Rauff, for the respondents

Keywords: Torts, Defamation, Defences, Truth, Fair Comment, Malice, Conspiracy, Civil Procedure, Anti-SLAPP, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Supreme Court Civil Rules, B.C. Reg 168/2009, r. 9-5, Constitution Act, 1867, s. 92(13), Law Society Act, R.S.O. 1990. c. L.8, s. 4.2, Tai v. Canada (Citizenship and Immigration), 2010 FC 788, Galati v. Harper, 2014 FC 1088, Action4Canada v. British Columbia (Attorney General), 2022 BCSC 1507, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 25, Bent v. Platnick, 2020 SCC 23, Burjoski v. Waterloo Region District School Board, 2024 ONCA 811, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, Marcellin v. London (Police Services Board), 2024 ONCA 468, Hamalengwa v. Duncan (2005), 202 O.A.C. 233, Heydary Hamilton PC v. Muhammad, 2013 ONSC 4938, Byrne v. Maas, [2007] O.J. No. 4457 (S.C.), Kanak v. Riggin, 2017 ONSC 2837, Guergis v. Novak, 2013 ONCA 449, Grant v. Torstar Corp., 2009 SCC 61, Hansman v. Neufeld, 2023 SCC 14, Slavutych v. Baker et al., [1976] 1 S.C.R. 254, Teneycke v. McVety, 2024 ONCA 927, Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129

Facts:

The appellant, RG, a well-known lawyer, acted as counsel in two actions that challenged COVID-19 measures: an action on behalf of Vaccine Choice Canada (the "VCC Action") and an action on behalf of Action4Canada and others (the "A4C Action").

Canadian Society for the Advancement of Science and Public Policy ("CSASPP") also commenced a proposed class action proceeding to challenge COVID-19 measures. The respondents (CSASPP and its officers), were not parties to the VCC Action or the A4C Action, nor did they have any professional relationship with the appellant.

CSASPP received various enquiries as to whether it was involved with the appellant or the organizations he represented. After CSASPP commenced its action, the respondents sent an email to a journalist and made statements on the CSASPP website stressing the lack of connection between CSASPP and the appellant. The statements pointed out criticisms that had been made of the appellant and commented negatively on the way the VCC Action was pleaded and its lack of progress.

Another respondent, D.T., was also not a party to either the VCC action or the A4C Action. However, she made financial donations to both actions to assist them in their efforts. D.T. submitted a complaint about the appellant to the Law Society of Ontario ("LSO") regarding the lack of transparency concerning the use of donations made to the VCC action and the A4C Action and the lack of progress.

The appellant commenced an action against the abovementioned respondents, alleging that their statements caused him harm and that the respondents were liable to him on several bases, including defamation, conspiracy, unlawful means, intentional infliction of mental suffering and harassment. The respondents brought a motion under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act to dismiss the action.

The motion was granted and the motion judge dismissed the appellant's action, finding that the expressions related to a matter of public interest and that the appellant had failed to establish that there were grounds to believe that (i) his proceeding had substantial merit, (ii) the respondents had no valid defence, and (iii) the public interest in permitting the action to continue outweighed the public interest in protecting the respondents' expressions.

The appellant appealed both the dismissal of his action and the costs award against him.

Issues:

Holding:

Appeal dismissed.

Reasoning:

The Court emphasized that a motion judge's decision on a s. 137.1 motion is entitled to deference absent an error of law or a palpable and overriding error or fact or mixed fact and law.

1. Did the motion judge err in finding that the appellant's action against the respondents arose from expressions that related to a matter of public interest?

No.

The Court found that the motion judge's conclusion that the respondents had satisfied the requirement under s. 137.1(3), that the expression related to a matter of public interest, was free of reversible error.

Two components must be met by a moving party seeking to establish that a proceeding arises from an expression that relates to a matter of public interest under s. 137.1(3): (1) the proceeding must arise from an expression made by the moving party; and (2) the expression that gave rise to the proceeding must relate to a matter of public interest.

For the first component, regardless of the cause of action asserted, it will be satisfied if the expression is causally connected to the claim, there is a nexus between them, the expression grounds the claim, and the claim targets the expression. The Court found that the first component was clearly met in this case. As the motion judge addressed, even though the appellant's proceeding asserted causes of action in addition to defamation, those causes of action were "derivative" of the defamation claim.

For the second component, the Court stated that the motion judge's conclusions were entitled to deference. Members of the public had a genuine interest in information about a lawyer acting in litigation that challenged the government's response to the pandemic and in the quality of legal representation and how their donated funds were used. Additionally, the Court also found that D.T.'s complaint was an expression made in relation to a matter in the public interest because her complaint went beyond her private interest in her donations. Her complaint raised questions about whether donations had been remitted to the appellant and about the progress of litigation for which substantial funds had been solicited from the public.

2. Did the motion judge err in finding that there were insufficient grounds to believe that the action had substantial merit and that the respondents had no valid defence?

No.

The appellant made multiple assertions as to where he believed the motion judge specifically erred. Overall, the Court found that the motion judge clearly referenced the need for evidence throughout and upheld the motion judge's interpretation of the evidence, emphasizing that his findings were entitled to deference.

Although the Court agreed with the appellant's argument that the motion judge failed to separate the question of whether the claim had substantial merit from the question of whether there were valid defences, the Court ultimately found that the error was not germane. In a defamation action, the plaintiff's burden is to make a prima facie case of defamation, which is the "substantial merit" question under s. 137.1(4)(a)(i). If the plaintiff does so, the words spoken are presumed to have been false and the burden shifts to the defendant to provide a defence, which is the "valid defence" question under s. 137.1(4)(a)(ii). But regardless, both s. 137.1(4)(a)(i) and s. 137.1(4)(a)(ii) must be met. Though the motion judge may not have adequately addressed the former question, the appellant failed to show an absence of grounds to believe that the respondents had valid defences.

The Court also rejected the appellant's arguments regarding the validity of the respondents' defences of absolute privilege and fair comment. The appellant argued that the motion judge erred in finding that absolute privilege was a valid defence because absolute privilege does not apply to causes of action other than defamation. The Court disagreed. A defence of absolute privilege that would defeat a defamation claim cannot be avoided by asserting a conspiracy claim derivative of defamation.

The appellant also argued that the motion judge erred in concluding that the defence of fair comment had a reasonable chance of success with respect to the statements made in the email, stating that the appellant wanted "far too much money to get started" and that "nothing much had been accomplished in Ontario" since the VCC Action was started. The Court held that the motion judge applied the right test for the defence of fair comment from Grant v. Torstar Corp.: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment must be recognizable as comment; (d) the comment must satisfy the objective test, that any person could honestly express that opinion on the proven facts; and (e) even though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. Accordingly, the Court did not find any errors with the motion judge's application of the test and his conclusion.

3. Did the motion judge err in concluding that there were insufficient grounds to believe that the harm suffered by the appellant as a result of the respondents' expressions was sufficiently serious that the public interest in permitting his proceeding to continue outweighed the public interest in protecting that expression?

No.

The Court concluded that in conducting the weighing exercise between harm and public interest, the motion judge made no reversible error under s. 137.1 in concluding that the harm to the public in limiting expression outweighed any harm that the appellant would suffer if the action was not permitted to continue.

In considering harm, the motion judge found that the appellant failed to establish that he suffered any, much less serious harm, because of the expressions. There was no evidence that his reputation was adversely affected, that he lost any clients or income, and he continued to act in the VCC Action and A4C Action. Additionally, the motion judge found that for the harms that the appellant could refer to, there was insufficient evidence to establish causation.

In considering public interest, the motion judge emphasized the strong public interest in the evaluation of a lawyer's services in the context of class action litigation that may affect the public, especially where public donations to support the litigation have been solicited.

4. Did the motion judge err in his costs award?

No.

Again, the Court emphasized the discretionary nature of a motion judge's award of costs. The Court stated that though costs of a s. 137.1 motion should not generally exceed $50,000 on a full indemnity basis, there are exceptions and motion judges always have the power to award less or more, as they see fit in the circumstances of each case]

SHORT CIVIL DECISIONS

1461043 Ontario Limited (Nuvo Iron) v. Soldan Fence & Metals (2009) Ltd., 2025 ONCA 571

[Gomery, Wilson and Rahman JJ.A.]

Counsel:

M.A. Katzman, for the appellant

No one appearing for the respondent, Soldan Fence & Metals (2009) Ltd.

J.P.E. Hardy and M. Ng, for the respondent, T.V.

Keywords: Breach of Trust, Bankruptcy and Insolvency, Debts Surviving Bankruptcy, Civil Procedure, Orders, Default Judgments, Variation, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 178(1)(d), Yanic Dufresne Excavation Inc. v. Saint Joseph Developments Ltd., 2022 ONCA 556

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