Court Of Appeal Summaries (December 1 – 5, 2025) - Civil Law

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Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of December 1, 2025.

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Congratulations to Blaneys' very own Reeva Finkel and Brendan Jones for the outcome they achieved for our client Hydro One Remote Communities Inc., in 1401380 Ontario Limited (Wilderness North Air) v. Hydro One Remote Communities Inc. The Court allowed our client's appeal in part by enforcing the contract's limitation of liability clause, thereby reducing the judgment against our client from over $2.7 million to only $50,000. The Court dismissed Wasaya's appeal and left in place the finding that Wasaya was liable for inducing breach of contract.

In David v. Loblaw Companies Limited, the Court held that the prior refusal to certify the bread price-fixing class action against Maple Leaf on the no cause of action ground had been a final determination with res judicata effect, barring the representative plaintiffs' attempt to revive the claims through amended pleadings or by invoking the Class Proceedings Act, 2002. The Court confirmed that the Rules of Civil Procedure do not permit amendments to circumvent a final order and that any discretion not to apply res judicata in court proceedings was limited and not engaged here.

In Robson v. Fedex, a proposed class action alleged that FedEx misrepresented its brokerage fees as government-imposed taxes and charged consumers for unsolicited customs services. The Court upheld certification of the class action, finding the pleadings disclosed viable claims under Ontario consumer protection legislation and that the legality of FedEx's standardized billing practices could be determined on a class-wide basis. The class definition properly constituted all Canadian consumers since 2016, notwithstanding jurisdictional and limitation period arguments, which were to be determined at later stages of the proceeding.

In West Whitby Landowners Group Inc. v. Elexicon Energy Inc., the Court allowed an appeal from the Divisional Court's dismissal of a judicial review application for lack of jurisdiction. The Court held that the Ontario Energy Board's letters, in the absence of a hearing, constituted a binding decision resolving the parties' dispute under s. 105 of the Ontario Energy Board Act and interpreting the Distribution System Code under the Board's exclusive authority in s. 19. The Court held the decision was of a sufficiently public character to attract judicial review and was both amenable to certiorari under s. 2(1)1 of the Judicial Review Procedure Act and an exercise of a "statutory power of decision" affecting legal rights under ss.1 and 2(1)2. Since the Court only decided that the Divisional Court did have jurisdiction to hear the judicial review application and did not address the merits of the judicial review application itself, it appears that the matter will need to be remitted to the Divisional Court to decide the matter on the merits.

Sorrentino v. Certas Home and Auto Insurance Company is a dispute about whether SABS should be paid to retrofit the home of a 92-year old insured's daughter to allow the insured to live with her daughter rather than in a long-term care facility. The insurers obtained an extension of time to file leave materials until after the reasons for decision of the Divisional Court are released. However, its motion to stay the order of the Divisional Court requiring it to pay for the retrofit was dismissed. Even though there was a risk the insurer might not recover the cost of the retrofit if it succeeded on the appeal, the balance of convenience favoured the insured, who was 92 and in ill-health and who may never get the benefit of the SABS before the appeal was determined.

In Proex Logistics Inc. (Re), the Court dismissed an appeal after granting leave under s. 193(e) of the BIA to decide the issues on their merits. The Court confirmed that the Trustee alone determines the value of proofs of claim filed under the BIA. The appellant filed no timely proof of claim or challenge to the Trustee's valuation of any claim under s. 135(5). That, and the fact he had unpaid costs orders and there was evidence of dissipation of assets meant he had no standing under s. 37 or s. 135 of the BIA.

In M.E. v. Children's Aid Society of Toronto, the Court dismissed M.E.'s request for leave to file a notice of appeal from the dismissal of her action for delay, finding her proposed appeal frivolous and repeating the same deficiencies that had led to a prior leave restriction.

In Lau v. Tao, the Court upheld the trial judge's equalization and property findings, except for a minor agreed upon correction.

Other topics covered included security for costs of an appeal.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

1401380 Ontario Limited (Wilderness North Air) v. Hydro One Remote Communities Inc., 2025 ONCA 827

Keywords: Contracts, Interpretation, Duty of Good Faith, Limitation of Liability, Torts, Inducing Breach of Contract, Defences, Justification, Mutual Mistake, Damages, Mitigation, Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, s. 48.1(1), Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Amberber v. IBM Canada Ltd., 2018 ONCA 571, Bhasin v. Hrynew, 2014 SCC 71, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7, Spina v. Shoppers Drug Mart Inc., 2024 ONCA 642, Drouillard v. Cogeco Cable Inc., 2007 ONCA 322

David v. Loblaw Companies Limited, 2025 ONCA 830

Keywords: Competition Law, Price-Fixing, Consumer Protection, Civil Procedure, Class Proceedings, Certification, No Reasonable Cause of Action, Amending Pleadings, Adding Parties, Res Judicata, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1), 8, 8(3), 12, ss. 8(3), 12, Competition Act, R.S.C., 1985, c. C-34, Rules of Civil Procedure, r. 26.02, Obodo v. Trans Union of Canada, Inc., 2022 ONCA 814, 71122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, V.K. Mason Construction Ltd. v. Canadian General Insurance Group Limited (1998), 42 O.R. (3d) 618 (C.A.), The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, Turner v. York University, 2011 ONSC 6151, Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Hislop v. Canada (Attorney General), 2009 ONCA 354, Hollick v. Toronto (City), 2001 SCC 68, Bisaillon v. Concordia University, 2006 SCC 19, Ontario New Home Warranty Program v. Chevron Chemical Co. (1999), 46 O.R. (3d) 130 (S.C.), Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, G.M. (Canada) v. Naken, [1983] 1 S.C.R. 72, Risorto v. State Farm Mutual Automobile Insurance Co. (2009), 72 C.C.L.I. (4th) 60 (Ont. Div. Ct.), Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848

Robson v. Federal Express Canada Corporation, 2025 ONCA 831

Keywords: Contracts of Adhesion, Shipping, Consumer Protection, Unfair Practices, Misrepresentation, Civil Procedure, Class Proceedings, Certification, Jurisdiction, Conflict of Laws, Limitation Periods, Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A, ss. 13, 14 and 15, Class Proceedings Act, 1992, S.O. 1992, c. 6., s. 5(1)(a), Rules of Civil Procedure, r.21.01(1)(b), Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Wright v. United Parcel Service Canada Ltd., 2011 ONSC 5044, aff'd 2015 ONSC 2220 (Div. Ct.), Davis v. Amazon Canada Fulfillment Services, 2025 ONCA 421, Condon v. Canada, 2015 FCA 159, Dewey v. Corner Brook Pulp and Paper Limited, 2025 NLCA 8, Carcillo v. Ontario Major Junior Hockey League, 2025 ONCA 652, Catalyst Capital Group Inc. v. Veritas Investment Research Corp., 2017 ONCA 85, Bowman v. Ontario, 2022 ONCA 477, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Bear v. Merck Frosst Canada & Co., 2011 SKCA 152, Hoy v. Expedia Group Inc., 2022 ONSC 6650, Bernstein v. Peoples Trust Company, 2017 ONSC 752, Sankar v. Bell Mobility, 2013 ONSC 5916, Graham v. Imperial Parking Canada Corporation, 2010 ONSC 4982, Magill v. Expedia, Inc., 2013 ONSC 683, Smith v. Inco Ltd., 2011 ONCA 628, Stenzler v. TD Asset Management Inc., 2020 ONSC 111, Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58, Amyotrophic Lateral Sclerosis Society of Essex v. Windsor (City), 2015 ONCA 572, Hollick v. Toronto (City), 2001 SCC 68, Chadha v. Bayer Inc. (2003), 63 O.R. (3d) 22 (C.A.), Webster v. Robbins Parking Service Ltd., 2016 BCSC 1863, Vallance v. DHL Express (Canada), Ltd., 2024 BCSC 140, Live Nation Entertainment, Inc. v. Gomel, 2023 BCCA 274, Ramdath v. George Brown College of Applied Arts and Technology, 2015 ONCA 921, Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57

West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2025 ONCA 821

Keywords: Administrative Law, Judicial Review, Jurisdiction, Standard of Review, Remedies, Certiorari, Ontario Energy Board Act, 1998, S.O. 1998, c. 15, Sched. B, ss 1(1)1, 2(1)2, 4.3(8), 19, 33(1), 57- 60, 66, 70.1, 78, 105, 107, 112.2(1), 112.2(6), 112.3-112.5, Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2, Energy Consumer Protection Act, 2010, S.O. 2010, c. 8, s. 38(22), Arbitration Act, 1991, S.O. 1991, c. 17, Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Air Canada v. Toronto Port Authority, 2011 FCA 347, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Khorsand v. Toronto Police Services Board, 2024 ONCA 597, Martineau v. Matsqui Institution, [1980] 1 S.C.R. 602, Ontario Place Protectors v. Ontario, 2025 ONCA 183, Setia v. Appleby College, 2013 ONCA 753, Biztech v. Accreditation Canada, 2025 ONSC 2689 (Div. Ct.), Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, The Conservative Party of Canada v. Trost, 2018 ONSC 2230 (Div. Ct.), leave to appeal to Ont. C.A. refused, Strauss v. North Fraser Pretrial Centre (Deputy Warden of Operations), 2019 BCCA 207, Graff v. New Democratic Party, 2017 ONSC 3578, West Toronto United Football Club v. Ontario Soccer Association, 2014 ONSC 5881, Piekut v. Canada (National Revenue), 2025 SCC 13, Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43, O.P.S.E.U. v. Seneca College of Applied Arts & Technology (2006), 80 O.R. (3d) 1 (C.A.), Bennet v. Hydro One Inc., 2017 ONSC 7065 leave to appeal to Ont. C.A. refused, Vista Waterloo Hotel Inc. v. 1426398 Ontario Inc., & Ontario Energy Board, 2021 ONSC 2724, Graywood Investments Ltd. v. Ontario Energy Board (2005), 194 O.A.C. 241 (Div. Ct.), Graywood Investments Ltd. v. Toronto Hydro-Electric Energy System Ltd. (2004), 181 O.A.C. 265 (C.A.), Dow Chemical Canada ULC v. Canada, 2024 SCC 23, Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, Telus Communications Inc. v. Federation of Canadian Municipalities, 2023 FCA 79, Powerline Plus Ltd. v. Ontario (Energy Board), 2013 ONSC 6720, Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, Batacharya v. The College of Midwives of Ontario, 2012 ONSC 1072 (Div. Ct.), Fuchigami v. Ontario College of Teachers, 2024 ONSC 106, Mitten v. College of Alberta Psychologists, 2010 ABCA 159

Sorrentino v. Certas Home and Auto Insurance Company, 2025 ONCA 835

Keywords: Contracts, Insurance, Automobile, Coverage, SABS, Civil Procedure, Leave to Appeal, Extension of Time, Stay Pending Appeal, Statutory Accident Benefits Schedule, O. Reg. 34/10, Rules of Civil Procedure, r. 63.02(1)(b), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Ducharme v. Hudson, 2021 ONCA 151, Morguard Residential v. Mandel, 2017 ONCA 177, Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761, Windrift Adventures Inc. v. Ontario (Animal Care Review Board), 2024 ONCA 89, Sault Dock Co. Ltd. v. Sault Ste. Marie (City), [1973] 2 O.R. 479 (C.A.), Reynolds v. Alcohol and Gaming (Registrar), 2019 ONCA 788, Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 859

Proex Logistics Inc. (Re), 2025 ONCA 832

Keywords: Bankruptcy and Insolvency, Proofs of Claim, Receiverships, Claims Bar Dates, Civil Procedure, Standing, Appeals, Leave to Appeal, Orders, Costs, Enforcement, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, ss. 37, 54.1, 135(5), 140.1 and s. 193, Rules of Civil Procedure, rr. 57.03 and 60.12, North House Foods Ltd. (Re), 2025 ONCA 563, arm Credit Canada v. Gidda, 2014 BCCA 501, Re Catalina Exploration & Development Ltd., 1981 ABCA 31, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Romspen Investments Corporation v. Courtice Auto Wreckers Limited, 2017 ONCA 301, Enroute Imports Inc. (Re), 2016 ONCA 247, Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, First National Financial GP Corporation v. Golden Dragon HO 10 Inc., 2019 ONCA 873, Cameron Stephens Mortgage Capital Ltd. v. Conacher Kingston Holdings Inc., 2025 ONCA 732, Marshallzehr Group Inc. v. La Pue International Inc., 2025 ONCA 124, Unity Health Toronto v. 2442931 Ontario Inc., 2025 ONCA 93, Downing Street Financial Inc. v. 1000162497 Ontario Inc., 2024 ONCA 639, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Garrett v. Oldfield, 2016 ONCA 424, McLean v. Wolfson, 2021 ONCA 928, Burrell v. Peel (Regional Municipality) Police Services Board (2007), 48 C.P.C. (6th) 349 (Ont. Master), Schwilgin v. Szivy, 2015 ONCA 816, YG Limited Partnership and YSL Residences Inc., 2022 ONSC 6548, Re Drummie, 2004 NBQB 35, Mamdani (Re), 2021 ABQB 632, Bankruptcy and Insolvency Law of Canada, loose-leaf (2025-Rel. 7), 4th ed (Toronto: Thomson Reuters, 2009)

M.E. v. Children's Aid Society of Toronto, 2025 ONCA 838

Keywords: Civil Procedure, Administrative Dismissal for Delay, Amending Pleadings, Appeals, Leave to Appeal, Vexatious Litigation, Young Offenders Act, s. 44.1(1)(d), ss. 45(1), 45(3), Youth Criminal Justice Act, S.C. 2002, c. 1, s. 119(1)(e), ss. 119(2), 128(2), Mental Health Act, R.S.O 1990, c. M.7, Child and Family Services Act (repealed), Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Rules of Civil Procedure, r. 2.1.01, 37.16, Huang v. Braga, 2020 ONCA 645, Evans v. Snieg, 2019 ONSC 7270, Hoang v. Mann Engineering Ltd., 2022 ONCA 82, M.E. v. Ontario, 2020 ONCA 289, Toronto (Police Service) v. L.D., 2018 ONCA 17, Sickinger v. Krek, 2016 ONCA 459, Langenecker v. Sauvé, 2011 ONCA 803, Ali v. Fruci, 2014 ONCA 596, Armstrong v. McCall, (2006), 213 O.A.C. 229 (C.A.), Canadian National Railway Company v. Kitchener (City), 2015 ONCA 131, M.E. v. HMTQ et al., 2021 ONSC 2862, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720

Lau v. Tao, 2025 ONCA 819

Keywords: Family Law, Property, Equalization of Net Family Property, Excluded Property, Gifts, Matrimonial Home, Post-Separation Adjustments, Civil Procedure, Costs, Family Law Act, R.S.O. 1990, c. F-3, s. 4(2)(1), L. v. L., 2022 ONSC 4787, Folga v. Folga (1986), 2. R.F.L. (3d) 358, Housen v. Nikolaisen, 2002 SCC 33

World Financial Solutions Inc. v. 2573138 Ontario Ltd., 2025 ONCA 845

Keywords: Contracts, Real Property, Mortgages, Enforcement, Civil Procedure, Summary Judgment, Appeals, Security for Costs, Rules of Civil Procedure, r. 56.01(1), r. 61.06(1), Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, Stride v. Syra Group Holdings, 2025 ONCA 265, Henderson v. Wright, 2016 ONCA 89, Perron v. Perron, 2011 ONCA 776, Gauthier Estate v. White, 2022 ONCA 846, 2363523 Ontario Inc. v. Nowack, 2018 ONCA 414, Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, 2010 ONCA 137, Toronto-Dominion Bank v. Szilagyi Farms Ltd. (1988), 65 O.R. (2d) 433 (C.A.)

Short Civil Decisions

Strutzenberger v. Strutzenberger, 2025 ONCA 836

Keywords: Family Law, Spousal Support, Civil Procedure, Appeals, Extension of Time, Collateral Attack, Abuse of Process, Rules of Civil Procedure, r. 61.04, Strutzenberger v. Strutzenberger, 2023 ONCA 755, Strutzenberger v. Strutzenberger, 2024 ONCA 455, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Liu v. Chan, 2024 ONCA 699, Fontaine v. Canada (Attorney General), 2012 ONCA 206, Gefen v. Gaertner, 2021 ONCA 631

UM Financial Inc. v. Butler, 2025 ONCA 844

Keywords: Torts, Defamation, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 137.1, 137.1(4)(a)(i), 137.1(7), Bent v. Platnick, 2020 SCC 23, Burjoski v. Waterloo Region District School Board, 2024 ONCA 811, Grant v. Torstar Corp., 2009 SCC 61, Sykes v. Fraser, [1974] S.C.R. 526, S.G. v. J.C. (2001), 56 O.R. (3d) 215 (C.A.), 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 533

R & P Petroleum Inc. v. Eternal Vibes Inc. (Phoenix Fuel), 2025 ONCA 833

Keywords: Civil Procedure, Orders, Security for Costs, Enforcement, Rules of Civil Procedure, r. 61.06(2), One Clarendon Inc. v. Finlay, 2024 ONCA 414

Baker v. Van Dolder's Home Team Inc., 2025 ONCA 829

Keywords: Contracts, Employment, Termination, Civil Procedure, Interveners, Employment Standards Act, 2000, SO 2000, c 41, Rules of Civil Procedure, rr. 13.02 and 13.03(2), Baker v. Van Dolder's Home Team Inc., 2025 ONCA 578, Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 173

Lenczner Slaght LLP v. GlycoBioSciences Inc., 2025 ONCA 841

Keywords: Civil Procedure, Vexatious Litigants, Courts of Justice Act, R.S.O 1990, c. C.43, s. 140, Lang Michener et al. v. Fabian et al. (1987), 59 O.R. (2d) 353 (Ont. H.C.), Dobson v. Green, 2012 ONSC 4432

Ranganathan v. Wasim, 2025 ONCA 850

Keywords: Torts, Fraud, Real Property, Civil Procedure, Third-Party Claims, Limitation Periods, Fresh Evidence, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, ss. 4, 11(1), Wasim Investments Ltd. v. Ranganathan et al., 2023 ONSC 6507, Wasim Investments Ltd. v. Ranganathan, 2024 ONCA 505

CIVIL DECISIONS

1401380 Ontario Limited (Wilderness North Air) v. Hydro One Remote Communities Inc., 2025 ONCA 827

[Huscroft, Trotter and Favreau JJ.A.]

Counsel:

Reeva M. Finkel and Brendan Jones, for the appellant Hydro One Remote Communities Inc.

M.R. Smiley and M.J. Holdervich, for the appellant Wasaya Airways LP

R.W. Johansen, for the respondent

facts:

Hydro One Remote Communities Inc. ("Remote") had a statutory obligation under s. 48.1(1) of the Electricity Act, 1998, to supply electricity to remote First Nations communities not connected to the grid. To meet this obligation, Remote issued a Request for Proposals ("RFP") on November 25, 2014, for the delivery of diesel fuel, primarily by air, to twelve remote communities. Bids were evaluated on quality, price, First Nations participation, and reference checks, and the RFP package included Remote's standard contractual terms. Three carriers submitted bids: 1401380 Ontario Limited o/a Wilderness North Air ("Wilderness"), Wasaya Airways LP ("Wasaya"), and Private Air Inc. c.o.b. as Cargo North ("Cargo North"). Five of the twelve communities had a financial interest in Wasaya, and five had a financial interest in Cargo North.

After the RFP was issued, but before any award, Remote received Band Council Resolutions ("BCRs") from five Wasaya-affiliated communities directing Remote to award the contract to Wasaya. Remote did not do so. Instead, in June 2015, it awarded Wilderness a three-year contract as the primary vendor for air delivery to the five communities and as the secondary vendor for the seven others. Cargo North was the primary vendor for the seven Secondary Communities and the secondary vendor for the five Primary Communities. Wasaya was not selected as a vendor. Under the contract, a secondary vendor would be used "if and only if" the primary vendor could not fulfill delivery obligations.

On June 26, 2015, Wasaya wrote to Remote stating that the chiefs and councils of the Wasaya-affiliated communities would block any carrier other than Wasaya from entering those communities and threatened escalation, including public action, if Wasaya was not used. Wasaya urged its owner communities to issue further BCRs prohibiting deliveries by other carriers. Remote forwarded the letter and BCRs to Wilderness, asserted concern about Wilderness's ability to deliver to Kasabonika, and demanded that Wilderness secure rescission of the BCRs on pain of losing work. Wilderness maintained it could perform, noted that deliveries proceeded without incident, and emphasized that the airports were not on First Nations land. The BCRs were a matter for Remote to address.

Remote removed Wilderness as the primary vendor for Kasabonika and replaced it with Wasaya. Remote also removed Cargo North as the primary vendor for four Wasaya-affiliated communities. Although Wilderness was the secondary vendor for those communities, Remote did not call on Wilderness or re-tender; it awarded Wasaya an exclusive contract for air delivery to those communities. The removal of Cargo North as primary vendor prompted BCRs from Cargo North–affiliated communities, after which Remote removed Wilderness as primary vendor for three of the five Primary Communities it served and replaced it with Cargo North. As a result, Wasaya became the primary vendor for the Wasaya-affiliated communities, and Cargo North became the primary vendor for the Cargo North–affiliated communities. Wilderness continued to deliver fuel to only one Primary Community.

Wilderness commenced an action in 2017, claiming against Remote for breach of contract and against Wasaya for inducing that breach. The trial judge found that Remote breached the contract by removing Wilderness as the primary vendor for four of the five Primary Communities, and that Remote's reliance on contractual discretion to cancel purchase orders did not permit the wholesale substitution of other carriers. The trial judge further found that Wilderness remained ready, willing, and able to perform notwithstanding the BCRs; that Remote improperly insisted that Wilderness secure rescission of the BCRs; and that Remote's exercise of contractual discretion was not in good faith. The trial judge held that Wasaya intentionally procured the breach through its threats and orchestration of the BCR campaign, rejected Wasaya's defence of justification, and rejected arguments of common mistake. The trial judge awarded damages to Wilderness against Remote of over $2.7 million and held Wasaya jointly and severally liable for over $850,000 of that amount.

Remote and Wasaya appealed the trial judgment.

issues:

Did the trial judge err in finding that Remote breached its contract with Wilderness?
Did the trial judge err in finding that Remote breached its duty to exercise its contractual discretion in good faith?
Did the trial judge err in failing to apply the limitation of liability clause in the contract?
Did the trial judge err in finding that there was no mistake in the contract?
Did the trial judge err in finding that Wasaya induced a breach of contract?
Did the trial judge err by concluding that the defence of justification had not been established?
Did the trial judge err in calculating damages by failing to consider Wilderness's mitigation?

holding:

Appeal allowed in part.

reasoning:

No. The court held that the trial judge reasonably interpreted the contract, formed through a rigorous RFP process, as obliging Remote to use Wilderness as the vendor of first resort for the Primary Communities, even if not exclusively. Remote's construction, which reduced the arrangement to a mere series of cancellable purchase orders with no practical commitment to a "primary vendor," failed to give meaningful effect to the contract's language and structure. The trial judge's interpretation was entitled to deference under Sattva Capital Corp. v. Creston Moly Corp., and there was no palpable and overriding error in her finding that Remote breached the contract by removing Wilderness from four Primary Communities and substituting Wasaya and Cargo North.
No. The court affirmed that Remote's discretion to cancel purchase orders and engage other vendors existed to provide operational flexibility in meeting changing fuel requirements, not to eliminate the primary vendor designation and replace Wilderness wholesale. Applying the organizing principle of good faith and the duty to exercise contractual discretion in a manner consistent with the contract's purpose, the Court agreed that Remote used the BCRs as a pretext to displace Wilderness despite findings that Wilderness remained able to perform. That conclusion was consistent with Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District and C.M. Callow Inc. v. Zollinger, which treat bad-faith exercise of discretion as a breach of contract.
Yes. The Court concluded that s. 18 unambiguously limited Remote's liability to $50,000 and that the trial judge erred in finding the clause ambiguous and commercially senseless. Reading the clause as a whole, the first sentence capped damages arising directly from breach, while the second excluded consequential economic losses; the two components were not in conflict. There is, in principle, no reason why a breach of the duty of good faith is not amenable to a limitation of liability provision. The clause did not and could not exclude the duty of good faith altogether, but it could limit the remedy for its breach.
No. The Court rejected Wasaya's common mistake argument. The contract was entered into and performed until Remote's breach. Remote's later misjudgment of the Wasaya Communities' resolve did not constitute a shared, antecedent mistake as to a fundamental assumption at formation. The trial judge's finding that there was no mistake at the time of contracting was open to her on the record.
No. The Court upheld the finding that Wasaya intentionally procured Remote's breach through direct threats and orchestration of a BCR campaign aimed at displacing Wilderness. It was unnecessary for the trial judge to find that the Wasaya Communities acted as Wasaya's agents; the evidence supported that Wasaya itself participated materially and directly in bringing about the breach. The causation objection based on Drouillard v. Cogeco Cable Inc. failed on the facts found: Wasaya's conduct was a substantial factor in the breach.
No. Applying the governing principles, the Court agreed that Wasaya's economic self-interest as an unsuccessful bidder could not justify inducing Remote's breach, and there was no evidentiary foundation for alleged safety concerns. Moreover, having participated in the RFP, Wasaya had a fair avenue to secure the work; it was not entitled to supplant that process afterward by pressuring Remote. The trial judge's rejection of justification was amply supported by the record and the applicable law.
No. The Court upheld the trial judge's mitigation analysis. The evidence supported that the Indonesia contract reflected a business expansion predating the Remote contract; thus, profits from that contract were not a substitute performance and were not to be deducted. The judge properly deducted fixed costs that would have been shared across both contracts but declined to deduct Indonesia profits. Those findings were available on the evidence and warranted appellate deference.

David v. Loblaw Companies Limited, 2025 ONCA 830

[Hourigan, Zarnett and Sossin JJ.A.]

Counsel:

R. Mogerman, K.C., J. Strosberg, and S. Robinson, for the appellants MD, BB, and AB

J.T. Curry and A. Locatelli, for the appellant/respondent Canada Bread Company, Limited

C.P. Naudie, A. Hirsh, and G. Rotrand, for the respondent Maple Leaf Foods Inc.

facts:

In 2021, the appellants MD, BB and AB (the "representative plaintiffs") sought certification of a proposed class proceeding that alleged a decades-long conspiracy to fix the price of Packaged Bread in Canada. They obtained an order dated December 31, 2021 (the "Certification Order") which granted certification of the claims in the action against some defendants. But the Certification Order refused certification of the claims in the action against other defendants, including the respondent Maple Leaf Foods Inc. ("Maple Leaf"), on the basis that the pleading of the representative plaintiffs did not disclose a cause of action against them. The representative plaintiffs did not appeal that aspect of the Certification Order.

In 2023, the representative plaintiffs presented an amended pleading which, in their view, corrected its deficiencies against Maple Leaf and moved to amend the Certification Order to essentially reverse its treatment of Maple Leaf by reclassifying it as a defendant against whom the certified class action would proceed. The motion was supported by Maple Leaf's former subsidiary, the appellant Canada Bread Company, Limited ("Canada Bread"), against whom the action was already certified. The motion judge dismissed the motion. Both the representative plaintiffs and Canada Bread appealed that dismissal.

issues:

Does paragraph 5 of the Certification Order have preclusive effect?
Can the plaintiffs avoid preclusion by amending their pleading under the Rules of Civil Procedure?
Does the Class Proceedings Act (the "CPA") provide a right to amend the pleadings?
Did the motion judge err in refusing to exercise the discretion not to give preclusive effect to paragraph 5 of the Certification Order?

holding:

Appeals dismissed.

reasoning:

Yes. The Court found paragraph 5 of the Certification Order to be a final determination of the rights of the representative plaintiffs to proceed against Maple Leaf on any claim that it was liable for the conspiracy to fix the price of Packaged Bread in Canada. An order is final for the purpose of appeal when it determined the real matter in dispute between the parties, or any substantive right to relief of a plaintiff or substantive right of a defendant. That was what paragraph 5 of the Certification Order did. It determined the subject-matter in dispute between the representative plaintiffs and Maple Leaf by determining that the representative plaintiffs had not asserted a cause of action, in other words, they had no substantive right to relief against Maple Leaf. As for the effect on further attempts to litigate the same or a similar issue, an order that is final for the purposes of an appeal has preclusive effect. Paragraph 5 of the Certification Order gave rise to res judicata, barring any further proceedings between the parties or their privies for the same subject-matter.
No. The Rules of Civil Procedure did not permit amendment of the pleading in these circumstances. The Court rejected the appellants' submissions that the Certification Order either implicitly preserved a right to amend, or did not foreclose it. The preclusive effect of paragraph 5 of the Certification Order could not be avoided by asserting that there was a right to amend the pleading under r. 26.02 of the Rules of Civil Procedure. Maple Leaf had no obligation to deliver a defence once it was determined that the statement of claim did not disclose a cause of action against it, a determination that meant that the representative plaintiffs were not able to pursue the action against Maple Leaf in any forum. It was not germane that the Certification Order did not formally dismiss the action against Maple Leaf.
No. The CPA did not provide a right to amend in these circumstances. Sections 8 and 12 of the CPA were not of assistance to the appellants. Those provisions must always be interpreted in light of their text, context and purpose. Here, the relevant context and purpose was that the CPA was a comprehensive procedural statute to provide for and regulate the conduct of class proceedings in Ontario. It neither modified nor created substantive rights. Maple Leaf's right to rely on the doctrine of res judicata was a substantive right. It could not be modified, let alone taken away, by interpreting those sections of the CPA in a manner that would have allowed the relitigation of matters that had been finally decided.
No. The motion judge did not err in refusing to exercise discretion not to give preclusive effect to paragraph 5 of the Certification Order. There existed a discretion not to apply res judicata in a particular case. However, where the order that gave rise to res judicata was made in court proceedings as opposed to an administrative hearing, the discretion was very limited. It might have been preferable if the motion judge had articulated the test as whether there were grounds for him to exercise his very limited discretion not to apply res judicata arising from the Certification Order, rather than proceeding directly to the Sagaz test. Nevertheless, the Court held the motion judge's reference to the Sagaz test did not lead to an unreasonable exercise of that discretion, or to any error in principle.

The cautious approach in Sagaz to reopening a matter that had already been heard was animated by principles that were relevant. Finality interests were thus given even greater weight after the formal order had been issued and the avenue for reconsideration of a decision was available by appeal. It was only on the initial certification motion that the representative plaintiffs had been entitled to have the question of whether they had a cause of action against Maple Leaf assessed on the allegations in their pleading, assumed to be true. Here, the appellants had proffered evidence, and the question was whether the evidence was capable of bringing the representative plaintiffs within that very limited discretion. The motion judge found that what had been proffered did not consist of admissible evidence that was new or suggestive of an arguably meritorious claim on any standard. That kind of evidence fell short of demonstrating the kind of fundamental unfairness that would have justified the exercise of the very limited discretion to permit relitigation of a matter finally decided in a court proceeding.

Robson v. Federal Express Canada Corporation, 2025 ONCA 831

[Huscroft, George and Favreau JJ.A.]

Counsel:

E. N. Kolers, S. Hosseini and H. Wafaei, for the appellants

J. Bunting, S. Campbell and A. White, for the respondent

facts:

KR ordered knitting supplies online in June 2020 from Ganxxet, a U.S.-based seller that advertised free shipping. After purchase, she received notices from Ganxxet and FedEx indicating her package had shipped and may be subject to duties, taxes, or clearance fees. When the package arrived, it included a Ganxxet-prepared invoice on a standard FedEx form stating that the consignee was responsible for "duties and taxes."

A month later, KR received a separate invoice from Federal Express Canada Corporation seeking $64.23, broken down into an "Advancement Fee," "Clearance Entry Fee," HST on ancillary service fees, and HST on the goods. Believing these amounts were government-imposed customs charges, she paid the invoice. In fact, the Advancement Fee and Clearance Entry Fee were brokerage fees retained by FedEx for its own services.

In January 2022, KR commenced a proposed class proceeding on behalf of non-commercial consumers who paid similar FedEx fees. She alleged that FedEx used misleading and deceptive billing practices by presenting its brokerage fees as government taxes or customs charges, and that these charges were imposed for unsolicited customs-related services that consumers had not requested. The claim asserted breaches of ss. 13, 14 and 15 of the Consumer Protection Act, 2002, along with unjust enrichment, and sought declaratory relief, disgorgement of "unsolicited service fees," and punitive damages.

FedEx opposed certification, arguing the claim disclosed no cause of action, that consumers were bound by the U.S. contract between FedEx and the vendor, that Ontario's consumer protection legislation did not apply extraterritorially, that there were no common issues, and that the proposed class definition, extending back to 2016 and including residents nationwide, was overly broad. The certification judge rejected those arguments and certified the action. FedEx appealed.

issues:

Does the statement of claim disclose a reasonable cause of action under the Consumer Protection Act, and in unjust enrichment for class certification purposes?
Do the proposed claims raise common issues capable of resolution on a class-wide basis?
Is the class definition overly broad?

holding:

Appeal dismissed.

reasoning:

1. Yes. At the certification stage, the question is simple: assuming the pleaded facts are true, is it plain and obvious that the claim cannot succeed? The Court found, here, it was not.

The claim alleges that FedEx charged consumers for brokerage services they did not request and presented those charges in a way that made them appear to be government-imposed taxes or duties. The Consumer Protection Act, 2002 contains broad protections against charging for unsolicited services and against misleading representations about the purpose of fees. On the face of the pleading, the allegations fit squarely within those provisions.

FedEx's primary position, that the real contract was formed in the United States between FedEx and the seller, and that consumers are bound by that foreign contract, was rejected at this stage. Ontario's consumer legislation applies to transactions where either party is located in Ontario, and the pleadings assert that FedEx dealt directly with Ontario consumers by invoicing them for the disputed fees. It was therefore not plain and obvious that the Consumer Protection Act, 2002 could never apply.

The Court also noted that FedEx's arguments about contracts, agency, and governing law amounted to potential defences that required evidence and should be decided later, not on a certification motion. Certification does not require the consumer to prove the case; it only requires a viable legal theory supported by the alleged facts.

Because the statement of claim alleges that FedEx supplied unsolicited services, demanded payment for those services, and misled consumers about the nature of the charges, the Court concluded that the cause-of-action requirement for certification as a class proceeding was met.

2. Yes. The Court upheld the motion judge's conclusion that the claims raised common issues suitable for determination on a class-wide basis. The focus of the action was FedEx's standardized practice of charging "Advancement" and "Clearance Entry" fees and the uniform way those fees appeared on invoices provided to consumers across Canada. Because the alleged misconduct stemmed from centrally administered practices and identical forms of communication, the legality of those practices could be assessed for all class members at once.

On the unsolicited services claim, the Court found there was a sufficient basis to treat the issue as common. The question was whether FedEx provided brokerage services without disclosing them or obtaining consent. The standard FedEx invoice was central to that assessment, and any variation in what individual consumers may have been told by vendors did not undermine the fact that the challenged conduct arose from FedEx's own system-wide procedures.

Similarly, the unfair practices claim, based on allegations that FedEx misrepresented the nature or purpose of the fees, can be evaluated by looking at the invoice and FedEx's general billing practices. The Court emphasized that, under Ontario consumer law, the viability of a misrepresentation claim does not depend on whether individual consumers relied on the representation or were personally misled. What matters is the representation itself and whether it was deceptive. That made the issue appropriate for a common determination.

FedEx argued that additional communications between consumers, vendors and FedEx differed from case to case and therefore defeated commonality. The Court disagreed. Those individual variations may become relevant later when assessing damages or defences, but did not prevent the court from determining the central questions about FedEx's practices on a class-wide basis.

In sum, because the key questions turned on FedEx's standardized conduct, not the individual circumstances of each consumer, the common issues requirement was satisfied.

3. No. The Court rejected FedEx's arguments that the class definition was overly broad. The definition captures all consumers in Canada who paid the disputed fees since 2016. FedEx said this was improper because:

(1) many of those claims would be outside the two-year limitation period, and

(2) the class includes residents of Quebec, whose claims may ultimately fail under their own province's consumer protection laws.

On the limitation period, the Court held that certification is not the stage to screen out class members whose claims might be time-barred. Whether individuals discovered the alleged wrongdoing earlier or later is a factual question that must be addressed after common issues are resolved. The class definition should not be used to pre-emptively exclude potential claims when limitation issues remain unsettled. If necessary, subclasses or later individual determinations can manage those differences without undermining the overall definition.

On the inclusion of Quebec residents, the Court found no basis to exclude them now. Even though Quebec courts have refused to certify similar proceedings under Quebec law, that does not automatically determine the viability of claims brought under Ontario's consumer protection legislation. Differences in provincial legislation and factual pleadings could lead to different outcomes. These questions belong at a later stage, on summary judgment or at trial, not at certification.

Ultimately, the Court held that the class definition properly tracked the scope of the alleged misconduct and identified all persons who may have been affected by FedEx's billing practices. It was sufficiently clear, objective, and connected to the common issues. As such, it met the statutory requirements and did not require narrowing.

West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2025 ONCA 821

[Hourigan, Sossin and Pomerance JJ.A.]

Counsel:

C. Lee and K. Purba, for the appellant

L. M. Wagner, T. Markin and B. Taylor, for the respondent Elexicon Energy Inc.

M.P. Tunley and F. Yu, for the respondent Ontario Energy Board

facts:

The appellant, West Whitby Landowners Group Inc., was a cost-sharing trustee for multiple developers constructing residential subdivisions that required electrical service. The respondent, Elexicon Energy Inc., was the licensed electricity distributor for the area, operating under the Ontario Energy Board's Distribution System Code (the "Code"). In December 2018, the parties negotiated a connection agreement under which the respondent would supply power to the new subdivisions through a municipal substation referred to as "MS16" and two new transformers.

Under the Code, MS16 could be classified as either an expansion or an enhancement. If deemed an expansion, the appellant would be required to pay a capital contribution; if an enhancement, the respondent would bear the costs. The parties disagreed on the proper classification and included a provision in their agreement referring that determination, and the associated cost responsibility, to the Ontario Energy Board, with both parties agreeing to be bound by the result.

On February 15, 2019, the appellant wrote to the Board's Industry Relations office seeking an "interpretation under the Code" to finally resolve four issues: the expansion/enhancement classification, the allocation of MS16 capital costs, whether the respondent could require a $775,000 contribution for potential future relocations, and the appropriate connection horizon. The appellant requested confirmation if staff could not issue a final determination "as if" it was a Board decision and asked that the matter be referred for a full hearing.

On August 16, 2019, Board staff issued a letter expressing views that the respondent had correctly treated the project as an expansion and appropriately calculated the capital costs payable by the appellant. The appellant replied on November 18, 2019, asserting that staff had provided only an opinion rather than answering the four questions, and it asked for reconsideration, elevating the matter to a formal complaint alleging Code contraventions. The Board sought submissions from the respondent, which were not provided to the appellant. On July 6, 2020, the appellant requested a full hearing.

On December 18, 2020, Board staff sent a further letter confirming the expansion classification but revising the cost allocation by assigning $710,109 of costs to the respondent and indicating that the appellant remained responsible for approximately $4.2 million in capital costs. The letter stated that staff's review of the complaint had concluded and did not expressly address the request for a full hearing.

Following the December 2020 letter, the appellant sought judicial review in the Divisional Court, arguing denial of procedural fairness based on the absence of a hearing and non-disclosure of the respondent's submissions, and challenging the substantive reasonableness of the staff letters. The Divisional Court dismissed the application for lack of jurisdiction, holding that the appellant had no standing to compel a hearing and that the Board had not exercised a statutory power of decision reviewable under the Judicial Review Procedure Act ("JRPA"). The court characterized the staff letters as non-reviewable opinions given in the context of a private dispute and treated the only Board decision as a decision not to take further steps on a complaint under section 105 of the Ontario Energy Board Act ("OEB Act"), which did not affect legal rights.

The appellant then commenced a civil application in the Superior Court seeking interpretation of the connection agreement and the Code. On a motion, the court dismissed the application as an abuse of process, finding that the dispute had been decided pursuant to the parties' agreement and that interpretation of the Code fell within the Board's exclusive jurisdiction.

The appellant appealed the Divisional and Superior Court decisions, but only the appeal from the Divisional Court decision was considered.

issues:

1. Did the Divisional Court err in finding that it lacked jurisdiction to consider the application for judicial review because:

a) the OEB did not exercise a statutory power of decision?

b) the OEB's decision did not affect the legal rights, powers, or liabilities of the appellant?

2. Did the Divisional Court err in finding that an order in the nature of certiorari was not available?

holding:

Appeal allowed.

reasoning:

The appeal concerned a Divisional Court decision on its own jurisdiction and whether judicial review was available in light of the matter in dispute. The question of whether judicial review was available was a question of law subject to a standard of review of correctness: Khorsand v. Toronto Police Services Board.

1. a) Yes. The Divisional Court erred in concluding that the OEB did not exercise a statutory power of decision. The proper inquiry under the JRPA was whether the Board acted under a power conferred by statute and whether its action decided or prescribed legal rights, duties, or liabilities. Section 105 of the OEB Act authorized the Board to "resolve" complaints, and s. 19(1) vested the Board with exclusive authority to "determine all questions of law and of fact" within its jurisdiction. The language used by the OEB in the correspondence was neither preliminary, nor tentative, but rather was, and was intended to be, a definitive interpretation and application of the Code. Exercising those powers, the Board interpreted and applied the Distribution System Code to the parties' dispute in the August 2019 and December 2020 letters and fixed the cost consequences. That was a final decision of the Board, not a non‑binding "opinion," and therefore there had been an exercise of a statutory power of decision within the meaning of ss. 1 and 2(1)2 of the JRPA.

b) Yes. The Divisional Court further erred in holding that the OEB's decision did not affect the appellant's legal rights, powers, or liabilities. The OEB's decision in this case was initiated under the Board's authority to resolve disputes pursuant to s. 105 of the OEB Act and apply the Code under s. 19. In turn, this interpretation of the Code determined the parties' contractual relationship. Principally, the Board's determination that MS16 was an "expansion," its confirmation of the connection horizon, and its treatment of relocation costs prescribed the parties' legal rights and duties under the Code and determined the appellant's financial liability. The decision also determined the distributor's right under the Code to charge those amounts. This squarely engaged the "legal rights ... duties or liabilities" branch of the JRPA definition.

2. Yes. The Divisional Court also erred in finding that certiorari was unavailable. The availability of relief in the nature of certiorari turns on whether the impugned act had a "sufficiently public character" and was an "exercise of state authority": Khorsand, at paras. 63-76; reaffirmed in Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, at para 14. Applying the Wall/Khorsand framework, and guided by the Air Canada factors, the Board's decision was public in nature. The decision maker was a statutory regulator with exclusive jurisdiction over the Code. The decision was founded in, and shaped by, law (the OEB Act and the Code), not private discretion. Furthermore, the determination resolved a complaint under s. 105, by interpreting legal instruments within the Board's remit. The absence of a formal "order" was not determinative—the correspondence communicated a definitive, binding interpretation intended to resolve the dispute, rendering public law supervision appropriate. Accordingly, relief under s. 2(1)1 was available. While the appellant lacked standing to compel the Board to hold a hearing, it could seek judicial review of the Board's refusal to take further steps on its complaint on procedural fairness grounds. Those points did not detract from the conclusion that the OEB's decision on the merits was reviewable.

Sorrentino v. Certas Home and Auto Insurance Company, 2025 ONCA 835

[Paciocco J.A. (Motion Judge)]

Counsel:

D. McGoey, for the moving party
J. Conte and P. Esfandiari, for the responding party

facts:

The responding party, E.S., sustained catastrophic injuries in an automobile accident and submitted a request to Certas Home and Auto Insurance Company for benefits pursuant to the Statutory Accident Benefits Schedule ("SABS") to fund home modifications. Both parties agreed to accommodate E.S.'s injuries and provide her with a safe living environment. However, E.S.'s request for $388,082.53 for modifications to her daughter's home with the intention of moving in with her daughter was denied. Certas agreed instead to pay $22,825.53 for changes to her existing condominium. E.S. disputed Certas' denial before the Licence Appeal Tribunal ("LAT"), but her application was dismissed. The LAT adjudicator later denied her application for reconsideration. The Divisional Court then overturned the LAT decision and ordered the remaining amount of the claim, $365,257.00, to be paid with immediate effect, denying a stay of its decision pending proceedings to seek leave to appeal with reasons to follow. Certas appealed.

issues:

Should there be an extension of time for the moving party to serve and file the materials for its motion for leave to appeal?
Should the Court stay the Divisional Court's order pending appeal?

holding:

Motion for extension of time granted. Motion for stay pending appeal dismissed.

reasoning:

Yes. Certas asked for an extension of time to serve and file the materials for its motion for leave to appeal, for a period of 30 days subsequent to the release of the Divisional Court's decision. E.S. did not oppose this request. The Court granted the extension, given that the reasons are required to identify the basis for leave to appeal.
No. The Court applied the test for a discretionary stay under r. 63.02(1)(b) of the Rules which mirrors the test for an interlocutory injunction in RJR-MacDonald Inc. v. Canada (Attorney General).

a) Serious Issue to Be Tried

While the "serious issue to be tried" threshold is a low one, where the rights of the parties would be determined by the outcome of the stay motion, then the court may give more weight to the strength of the appeal. Additionally, where a party was seeking a stay in parallel to a motion for leave to appeal, consideration must also be given to the principles governing leave motions established in Sault Dock Co. Ltd. v. Sault Ste. Marie (City). Certas was hampered in demonstrating that there were serious issues to be tried in its leave to appeal motion because the Divisional Court decision had not yet been released. The Court followed Reynolds v. Alcohol and Gaming (Registrar) and presumed this requirement to be satisfied under similar circumstances.

b) Irreparable Harm

Certas argued that if a stay was not granted it would suffer irreparable harm because if the modifications were made to E.S.'s daughter's house with the payment pending appeal, as intended, the money would likely be unrecoverable should Certas be granted leave and prevail in the appeal. Even if Certas was correct, it had shown no more than a risk that if it made the payments and ultimately prevailed, those payments may not be recovered, in whole or in part. No evidence was presented relating to E.S.'s financial means or that of her estate, and Certas had not demonstrated that it would be without restitution remedies if it was left to attempt to recover the costs of the improvements made to the daughter's home. The Court recognized the risk of irreparable monetary loss, but the intensity of that risk was unclear and Certas had not met its burden in establishing irreparable harm, which favoured dismissing the stay request.

c) Balance of Convenience

The Court was persuaded that the balance of convenience did not favour a stay. If Certas paid but later obtained leave and prevailed in the appeal, there was a possibility, but not a certainty, that it may have paid money that cannot be recovered. In contrast, the harm in granting a stay pending the motion for leave to appeal was considerable. E.S. was 92 years of age, it was not disputed she was in poor health or that she was in a long-term care facility and required significant assistive care. There was a serious risk that if the Divisional Court order was stayed pending appeal, she would never enjoy the SABS benefits that were in contention. The Court believed there would be a significant inherent delay, with a real probability that the stay request would be the determining issue on whether she would enjoy the benefits of the insurance contract that were in contention, and the money should be paid without delay.

d) Other Considerations

The Court also added that this was a SABS dispute, emphasizing the importance that claims made by individuals for SABS benefits are not delayed by payment dispute litigation. In the Court's view, granting the stay would be contrary to this important policy principle.

Proex Logistics Inc. (Re), 2025 ONCA 832

[Thorburn, Coroza and Gomery JJ.A.]

Counsel:

R. Shah, for the appellant, R.R.
L. Nicholson and S. Dukesz, for the respondent, P.R.
A. Merskey and K. Jamal, for the Trustee, KSV Restructuring Inc.

facts:

The appellant R.R. appealed the motion judge's decision to deny him standing and to allow the Trustee's motion and approve the Trustee's report. The appellant and the respondent, P.R., as brothers were equal shareholders of RGC which operated trucking and real estate businesses. The Trustee found that R.R. had engaged in wrongful conduct and brought a motion to consolidate the estates, authorize the Trustee to pay P.R.'s Wrongful Conduct Claims, make distributions of any surplus to equity holders, and approve the Trustee's reports. R.R. opposed the relief, sought to adjourn the motion, and argued that he needed more time to challenge the Trustee's acceptance of P.R.'s claims. The motion judge ultimately denied R.R. standing because of outstanding costs awards, evidence that R.R. had dissipated RGC assets, and the fact that he was continuing to pay legal counsel despite claiming he had no money. The motion judge allowed the Trustee's motion but held that the Bankruptcy and Insolvency Act (the "BIA") did not contemplate the Court accepting an approval that had already been made by the Trustee. The motion judge noted that the Trustee allowed P.R.'s claims, all appeal rights had expired, and therefore any claim against the Trustee at this stage would constitute a collateral attack.

issues:

Does the appellant have a right of appeal, or should he be granted leave to appeal pursuant to any one of ss. 193 (a), (c), or (e) of the BIA?
Did the motion judge err by denying the appellant standing on the basis that he held not paid the outstanding costs order?
Did the motion judge err by denying the appellant standing as an aggrieved party pursuant to s. 37 of the BIA?
Did the motion judge err by denying the appellant standing as a creditor pursuant to s. 135 of the BIA?
Did the motion judge err by failing to consider the merits of the Wrongful Conduct Claim?

holding:

Appeal dismissed.

reasoning:

1. Yes.

(a) Future Rights under s. 193 (a)

The Court noted that its has generally taken a narrow approach to the interpretation of appeal rights under ss. 193 (a) through (d), due in part to the broad automatic stay on appeal contained in s. 195 of the BIA. The Court, relying on North House Foods Ltd. (Re) and Farm Credit Canada v. Gidda, held that "future rights" under s. 193 (a) meant future legal rights that would come into existence at a future time, and the rights crystallized before the order under appeal. The Court determined R.R. interpreted "future rights" to include rights a litigant may, but would not necessarily, obtain in future litigation, which was not a correct definition of a future right. A s. 193 (a) "future right" was one that would come into existence at a future time. The Court believed R.R. had not raised any "future rights" under s. 193(a).

(b) Property that Exceeds $10,000 under s.193(c)

R.R. challenged P.R.'s $2.6 million Wrongful Conduct Claim related to RGC's surplus, which, if allowed by the Trustee, reduced the surplus payable to R.R. by approximately $1 million. Relying on the narrow interpretation in Bending Lake, the Court believed R.R. had not provided evidence to support the assertion that the order resulted in a direct loss to R.R., as opposed to a mere economic risk. To trigger the automatic right of appeal it had to relate to a clear difference in value and contain some element of a final determination of the economic interests of a claimant in the debtor. The order under appeal did not determine R.R.'s economic interests and his stake in the appeal was merely more time to advance a speculative challenge that he neglected to advance for years.

The Court, however, still believed the appeal should have been decided on its merits and leave was granted. Full submissions on the merits were made in oral argument and the Trustee acknowledged that there were arguable grounds for leave. The respondent did not challenge that and there were jurisprudential issues raised in respect of the interpretation of specific provisions in the BIA.

2. No. The motion judge noted that while R.R. had not paid the outstanding costs awards, he had paid many large sums to family members without appropriate justification. R.R. offered no reasonable explanation for those transactions while making no payment toward the $1.048 million total outstanding cost awards to P.R. The motion judge correctly held that, while R.R. claimed he was impecunious there was evidence of a dissipation of his assets and continuous retention and payment to sophisticated counsel. The Court agreed that this contravened rules 57.03 and 60.12 of the Rules of Civil Procedure and that the Court had discretion to prevent a litigant who had flagrantly ignored costs awards from continuing proceedings. The Court was not prepared to allow this late breaking attempt for R.R. to further delay the finality of these proceedings.

3. No. The Court stated that under the BIA, the Trustee decided whether to allow a claim in whole or in part. The Court also asserted there is no authority in the BIA permitting the court to provide advice and directions after the Trustee had decided to allow a claim absent an application challenging that decision under s. 135. In this case, no application to challenge the Trustee's determination of P.R.'s claims were brought. The motion judge correctly held that since the Trustee had allowed P.R.'s claims under the BIA, there was no basis for the Court to interfere and no need for the Court to provide any further authorization for the acceptance of those claims to be valid. The Court noted that dismissal of this ground with the standing issue, was sufficient to dispose of the appeal.

4. No. The Court held R.R. was incorrect in claiming he was entitled to rely on s. 37 of the BIAto challenge the Trustee's motion to make a distribution respecting the Wrongful Conduct Claim. First, R.R. was not a "person aggrieved" within the meaning of s. 37. Second, R.R. could not use s. 37 to effectively challenge the Trustee's decision when the route to do so is in s. 135. The Court disagreed with R.R.'s claim that his share of the surplus would be diminished if the Trustee made a distribution on account of the Wrongful Conduct Claim. The Court also determined that the broad discretionary powers in s. 37 may not be used in place of s. 135 of the BIA. R.R. failed to take any steps to challenge the Wrongful Conduct Claim under s. 135 which provided a complete code for dealing with proofs of claim. To permit him now to challenge the Trustee's decision under s. 37 as a person "aggrieved", would run contrary to the clear and specific legislative structure provided for dealing with proofs of claim under s. 135.

5. No. The Court agreed with the motion judge that R.R. did not meet the preconditions in s. 135 of the BIA to challenge the Wrongful Conduct Claim.

(a) R.R. is not a Creditor

The Court held that in some circumstances equity holders may be creditors in the context of bankruptcy proceedings. An equity interest alone, however, was not enough to grant R.R. access to s. 135(5). In these circumstances, R.R. was not a creditor, because he did not file a timely and valid proof of claim in either the receivership or the bankruptcy.

(b) R.R. Did Not Bring a s.135(5) Application

The Court believed R.R. had many opportunities to question the Trustee on the details of P.R.'s claims or formally request that the Wrongful Conduct Claim be disallowed but failed to do so.

The Court stated the appellant was obligated to file a claim within the Receivership. The Claims Bar Date in the Receivership was October 31, 2021. The Trustee was permitted to rely upon the fact that R.R. had not filed a claim in the Receivership and was therefore not permitted to do so in the bankruptcy.

(d) No Timely Claim Filed in the Bankruptcy

The Court also held that even if R.R.'s claim was not barred by the Claims Bar Date in the Receivership, he failed to file a proof of claim in the Bankruptcy in a timely manner.

(e) No Standing on Account of Equity Interest

The Court did not accept R.R.'s submission that his status as a shareholder should somehow grant him the ability to challenge the Wrongful Conduct Claim. The Court saw no reason to disturb the motion judge's conclusion that R.R.'s failure to file a timely and well-supported proof of claim meant he was not a "creditor" and could not access s. 135(5).

(f) No Error in Not Considering the Merits of the Wrongful Conduct Claim

As a result of finding that R.R. lacked standing under any section of the BIA, the motion judge did not consider the merits of the Wrongful Conduct Claim. The Court stated that even if he had standing, there was no merit to the claim that P.R. was better off now than he would have been had their business been sold in 2018 and that he should therefore now be allowed to bring his claim. The Court also believed the motion judge had before her no evidence challenging the value of the Wrongful Conduct Claim that would warrant a consideration of the merits. The appellant only now raised the argument that the proceeds from RGC's liquidation in the Receivership, less creditor claims, were higher than the estimated 2018 value of RGC's assets, such that the motion judge should have considered the merits of the Wrongful Conduct Claim. The Court held this argument was unsubstantiated and had no merit.

(g) Conclusion on the s. 135 Claim

The Court saw no error in the motion judge's conclusion that there was no further avenue available to R.R. to challenge P.R.'s claims. Since the matter had been ongoing for years and the Claims Bar Date was more than three years before, the matter had to be concluded.

M.E. v. Children's Aid Society of Toronto, 2025 ONCA 838

[Roberts J.A. (Motion Judge)]

Counsel:

M.E. acting in person
S. Inkol, for the responding party
M. Paterson, appearing as amicus curiae, Pro Bono Ontario

facts:

M.E. sought leave to file a notice of appeal from the July 14, 2025 order that granted the Children's Aid Society of Toronto's ("CAST") motion to dismiss her action for delay ("the dismissal order"). Previously, on October 18, 2022, the Court heard and dismissed M.E.'s appeal from another order made in her action against CAST finding it to be entirely frivolous, vexatious and abusive. As a result, the Court imposed a leave requirement preventing M.E. from filing any further materials in the Court of Appeal without first obtaining leave from a judge.

M.E.'s claim against CAST arose out of its alleged improper disclosure of confidential information and documentation concerning M.E. In M.E. v. Ontario, the Court allowed in part M.E.'s appeal from the dismissal of her action, granting her leave to amend her statement of claim. M.E. did not amend her statement of claim as directed by the Court. She spent the following several years bringing numerous unsuccessful motions and appeals, racking up over $30,000 in costs orders in CAST's favour. She declared bankruptcy. CAST recovered very little of the costs owing. This history formed the basis for the imposition of the Court's leave requirement and ultimately led to the dismissal order that M.E. sought to appeal.

issues:

Whether it was in the interests of justice that M.E. be permitted to file a notice of appeal?
Whether M.E. should be permitted leave to amend her notice of appeal?

holding:

Motion dismissed.

reasoning:

No. The Court concluded it was not in the interests of justice that M.E. be permitted to file a notice of appeal. M.E.'s proposed notice of appeal contained the same fatal flaws as her previous pleadings. None of the statutory provisions relied upon in her pleadings nor the requested order were tenable grounds of appeal in relation to the dismissal order. M.E.'s materials on the motion did not provide any clarification. Her challenge to the dismissal order was unknowable. As such, the proposed appeal was frivolous and vexatious and did not meet the leave requirement.
No. The most important considerations in allowing amendments to a notice of appeal are prejudice to the respondent and the merits of the proposed appeal. M.E. failed to rebut the motion judge's finding of prejudice to CAST. The Court accepted CAST's argument that, without legal assistance, it was highly unlikely that M.E. would be able to produce a proper notice of appeal and perfect her appeal within the required deadlines. The Court remained unpersuaded that even if represented by a lawyer, M.E. would focus on the relevant issues on her appeal or in her action, if her appeal were successful. CAST was entitled to finality. An order dismissing an action for delay is discretionary and entitled to deference from an appellate court. It should not be overturned unless the motion judge exercised his discretion unreasonably, acted on an incorrect principle, or made a palpable and overriding error on a factual matter. The motion judge's thorough reasons that were grounded in the record amply supported that the delay was inordinate and inexcusable. It was no error for the motion judge to conclude that the delay stemmed from M.E.'s actions.

Lau v. Tao, 2025 ONCA 819

[Roberts, Miller, and Monahan JJ.A.]

Counsel:

N. Iqbal, for the appellant

G. M. Samuels, for the respondent

facts:

The parties married in 2014, lived in Hong Kong, and later moved to Canada in 2018, settling in a mortgage-free home they purchased in London, Ontario, until their separation in December 2019. During the marriage, both parties received significant financial contributions from their parents: the respondent used funds from her maternal grandparents and the appellant's paternal grandmother to purchase a Hong Kong property in her name, which the parties lived in until it was sold when they moved to Canada.

At trial, the judge found that the grandparents' contributions were gifts, that the respondent could trace her gifted funds into assets she owned on the valuation date, and therefore those assets were excluded from her net family property under s. 4(2)(1) of the Family Law Act. The appellant, however, could not trace his gifted funds and was not entitled to exclusions. The trial judge also treated loans from each side's parents as valuation-date liabilities, included each party's RESP in net family property, and awarded the respondent costs as the more successful party.

issue:

Did the trial judge err in the property-related aspects of the equalization calculation?

holding:

Appeal allowed in part.

reasoning:

Mostly, no. The Court accepted the parties' agreement that the trial judge had made a small mathematical error in deducting only $100,000 (instead of $108,500) for the appellant's debt to his paternal grandmother and adjusted the equalization payment accordingly. Beyond that limited correction, however, the Court held that the appellant's remaining grounds of appeal raised issues of fact or mixed fact and law and disclosed no reviewable error. It was open to the trial judge to treat the grandparents' contributions to the Hong Kong Property as roughly equal, to find that the respondent had successfully traced gifted funds into assets held on the valuation date (thereby qualifying as excluded property), and to conclude that the appellant had not provided a comparable tracing analysis and therefore was not entitled to similar exclusions.

The Court further held that the Hong Kong Property was not a matrimonial home because it had been sold in 2018 and was not occupied at the date of separation, the trial judge did not misapprehend the evidence regarding the gifting and loan arrangements (having relied on both documents and viva voce evidence), and the inclusion of each party's RESP in their net family property was consistent with the principle that RESPs generally belong to the subscriber absent proof of a trust. The court rejected the appellant's complaints about post-separation adjustments, noting that any omissions in the reasons did not demonstrate that the trial judge forgot or misunderstood the evidence. Finally, the Court found no basis to interfere with the costs award, which reasonably reflected the respondent's greater overall success and excluded steps where costs had already been addressed.

World Financial Solutions Inc. v. 2573138 Ontario Ltd., 2025 ONCA 845

[Paciocco J.A. (Motion Judge)]]

Counsel:

D. Waldman, for the moving party, World Financial Solutions Inc.

M. Dhaliwal, for the moving parties, E.B., Sieta & Pikes Development Limited and 2664358 Ontario Ltd.

T. Arndt and M. Dhaliwal, for the moving party, 2868395 Ontario Ltd.

G. Cadogan, for the responding parties, 2572138 Ontario Ltd. and M. A.

facts:

In 2017, the appellant/responding party, M.A. borrowed money through her corporation, the appellant/responding party, 257 Limited, from World Financial, to acquire a resort property. M.A. personally guaranteed the loan, and mortgages were placed on the resort property and her home. Nothing has ever been paid on the mortgage and World Financial instituted a mortgage enforcement action in March 2018. The appellants filed a statement of defence raising numerous defences.

On May 30, 2025, the moving parties' motion for summary judgment against the appellants was granted on all issues with costs. On June 30, 2025, the appellants launched their appeal. The respondents brought a timely motion for security for costs on September 25, 2025.

issue:

Should security for the costs of the appeal be ordered?

holding:

Motion granted.

reasoning:

Yes. Before the Court can order security for costs, the moving party must (1) satisfy the Court that the legal requirements for a security for costs order are present; and (2) persuade the Court that the order is just in the circumstances of the case, taken holistically.

The Court found that the test was met in this case. The Court outlined that a security for costs order can be granted under r. 61.06(1)(c) if there is a "fairly compelling reason" for doing so, distinct from the grounds present under r. 61.06(1)(a) and (b) and where the order proactively addresses the unacceptable risk that costs ordered on appeal will not be paid. The Court stated that ordering security for costs under r. 61.06(1)(c) is appropriate "when an appeal has a low prospect of success coupled with an appellant who has the ability to pay costs but from whom it would be nearly impossible to collect costs."

The Court was satisfied that "other good cause" had been shown and that it would be permissible to make the orders sought because, (1) the distinct grounds under r. 61.06(1)(c) were present, (2) the appeal had a low prospect of success, and (3) the risk of non-payment would have been unacceptable.

An order for security for costs was also just in the circumstances of the case. The appeal was unlikely to succeed, brought by appellants who were unlikely to pay costs awards and who were pursuing what was likely to be an expensive appeal because of the complexity the appellants had introduced to what should have been straightforward proceedings.

As a matter of principle, "no party should have to give security for costs as a condition of simply defending itself ... and ... it can be said that an appeal is simply a step in the proceeding in which the defendant appealing is continuing to defend itself": Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, 2010 ONCA 137. For that reason, the Court found that giving World Financial security for the costs it would be incurring in attempting to preserve on appeal the enforcement order it secured below against the appellants as defendants would not be just. However, the Court outlined that World Financial was also responding to grounds of appeal relating to the Counterclaim and its dealings with third parties linked to the third-party claims. The Court found that the costs World Financial would incur in responding to these claims would not be limited by the principle identified in Donaldson International Livestock Ltd. It was therefore in the interests of justice for the Court to order security for those costs.

SHORT CIVIL DECISIONS

Strutzenberger v. Strutzenberger, 2025 ONCA 836

[Paciocco J.A. (Motion Judge) JJ.A.]

Counsel:

P.A.S., acting in person

I. Matthews, appearing as amicus curiae, Pro Bono Ontario

H. Puchala and P. Howie, for the responding party

UM Financial Inc. v. Butler, 2025 ONCA 844

[Paciocco, George and Monahan JJ.A.]

Counsel:

P.I. Waldmann, for the appellant

G.M. Sidlofsky, for the respondents

R & P Petroleum Inc. v. Eternal Vibes Inc. (Phoenix Fuel), 2025 ONCA 833

[Paciocco J.A. (Motion Judge)]

Counsel:

D. Bellin, for the moving party

S. Singh, for the responding parties

Keywords: Civil Procedure, Orders, Security for Costs, Enforcement, Rules of Civil Procedure, r. 61.06(2), One Clarendon Inc. v. Finlay, 2024 ONCA 414

Baker v. Van Dolder's Home Team Inc., 2025 ONCA 829

[Monahan J.A. (Motion Judge)]

Counsel:

T. Lawson, B. Kain, M. Fimiani and J. Gray, for the appellant

C. Achkar, F. Pejovic, M. Chilvers, for the respondent

J. Esmonde, S. Moreau, and D. McQuillan, for the proposed interveners, Income Security Advocacy Centre and Parkdale Community Legal Services

Lenczner Slaght LLP v. GlycoBioSciences Inc., 2025 ONCA 841

[van Rensburg, Miller and Sossin JJ.A.]

Counsel:

K.D., acting in person and for GlycoBioSciences Inc.

M. Bridges and D. Malone, for the respondent

Ranganathan v. Wasim, 2025 ONCA 850

[Paciocco, George and Monahan JJ.A. ]

Counsel:

D. Paul, for the appellant

P. Singh Wadhwa, for the respondents

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be ought about your specific circumstances.

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