COURT OF APPEAL SUMMARIES (JULY 27 – JULY 31)

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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 July 27, 2026.

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In Kentros v. Kentros, the Court dismissed an appeal and cross-appeal concerning a will that omitted a remainderman clause for properties bequeathed to the testator’s husband for life (ie. the will was silent on who would get the properties after the husband passed away). The application judge had rectified the will to reflect the testator’s clear intention, determined through extrinsic evidence of both sides, that her grandchildren should inherit the properties upon her husband’s death, rather than allowing them to pass through an intestacy. The Court upheld the rectification, rejecting arguments that the application judge exceeded his powers, misapplied section 13 of the Evidence Act, or improperly relied on the extrinsic evidence. The Court also affirmed the costs order allocating some litigation costs to the estate, given that it was the drafting error in the will that necessitated the proceedings.

In Smith v. Nagy, the Court dismissed an appeal from a dismissal of a battery claim and a defamation judgment.

In Pringle v. Zenova Group PLC, the Court set aside the motion judge’s order staying the claim on jurisdictional grounds. The motion judge had stayed the action and enforced a forum selection clause in favour of the UK, finding that the appellant was an independent contractor and not an employee within the meaning of the Employment Standards Act. The Court was of the view that the motion judge erred in applying the Sagaz test and Belton factor for determining whether someone is an employee entitled to the protections afforded by the ESA. The order was set aside, as Ontario had jurisdiction and was a proper forum.

In Baig v. Thunder Bay Vacant Land Condominium Corporation No. 39, the appellant, brought oppression claims under s. 135 of the Condominium Act against neighboring lot owners who proceeded with construction in violation of the condominium Declaration and against the Corporation for failing to take reasonable steps to enforce the Declaration and the Condominium Act, 1998. The Court allowed the appeal, finding that the application judge erred by failing to adjudicate the s. 135 oppression claims. The Court also held that the application judge erred in ruling on costs without affording the appellant the opportunity to make submissions or file a bill of costs.

In Chand Morningside Plaza Inc. v. Healthy Lifestyle Medical Group Inc., the appellants’ collection action was dismissed on the basis of defences not pleaded and for which they did not have adequate notice at trial. In such circumstances, the trial judgment could not stand and the matter was remitted to a different judge for a new trial.

In Dominion of Canada General Insurance Company v. West York Sales and Leasing Inc., the Court allowed the appellant insurer’s appeal, holding that the Ontario Policy Change Form Monthly Reporting Basis Fleet Endorsement excluded coverage for a vehicle owned or leased before the effective date of a fleet policy but not included on the Schedule listing the insured vehicles. No such request was made for the vehicle in question until it had already been involved in an accident, meaning there was no coverage and no duty to defend.

In Patterson v. Eastern Residential Services Inc., a former foster parent and social worker challenged the striking of his claims after his employment was terminated and foster home closed following a child’s disclosure of sexual assault, despite no criminal charges being laid. The Court held that his Charter and negligence claims against the Children’s Aid Societies were properly struck, as the Societies owed no duty of care to caregivers and the pleadings disclosed no viable constitutional breach. However, the Court allowed the appeal in part, finding that the appellant’s misfeasance in public office claim against one of the Children’s Aid Societies should not have been struck, as the allegations set out in the appellant’s response to a demand for particulars were capable of supporting inferences of bad faith at the pleadings stage.

In 2615333 Ontario Inc. v. Central Park Ajax Developments Phase 1 Inc., the Court denied leave to appeal an order approving the sale of properties out of receivership to the Town of Ajax.

In Senos v. Senos, the Court mostly allowed an appeal in a highly contentious family law proceeding, setting aside three aspects of the trial judge’s decision: (1) the cancellation of prior costs orders against the respondent; (2) holding the appellant personally liable for 50% of a corporate tax debt based solely on her shareholder status, contrary to the fundamental principle of corporate law that shareholders are not liable for corporate debts; and (3) a ten-year common law peace bond imposed without proper procedural protections. The Court did uphold the spousal support order.

In Redback Tours Inc. v. Canadian Equipment Finance & Leasing Inc., the Court dismissed an appeal by a defaulting borrower who argued that an acceleration clause in a commercial loan agreement did not permit the acceleration of future interest and that section 17 of the Mortgages Act provided a right of redemption relieving them of that obligation.

In Bank of Montreal v. Saidani, the Court dismissed an appeal from a summary judgment enforcing a guarantee.

Wishing everyone an enjoyable long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Kentros v. Kentros, 2026 ONCA 546

Keywords: Wills and Estates, Remedies, Rectification, Civil Procedure, Evidence, Evidentiary Burden, Evidence Act, R.S.O. 1990, s. 13, Variation of Trusts Act, R.S.O. 1990, c. V.1, Wills and Succession Act, S.A. 2010, c. W-12.2, at ss. 26, 39; Wills, Estates and Succession Act, S.B.C. 2009, c. 13, s. 59, Saunders v. Vautier (1841), 41 E.R. 482 (Eng. Ch. Div.), Ihnatowych Estate v. Ihnatowych, 2024 ONCA 142, Re Estate of Blanca Esther Robinson, 2010 ONSC 3484, Isard Estate v. Gunn, 2025 ONCA 139, Lipson v. Lipson (2009), 52 E.T.R. (3d) 44 (Ont. S.C.), Re MacDonnell (1982), 35 O.R. (2d) 578 (C.A.), Elizabeth Casey Cooke Family Trust v. Dioguardi, 2026 ONCA 85, Neuberger Estate v. York, 2016 ONCA 191, Panda Estate (Re), 2018 ONSC 6734, Nordlander v. Nordlander Estate, [1998] O.J. No. 4039 (Gen. Div.), Ali Estate (Re), 2011 BCSC 537, Balaz Estate v. Balaz, [2009] O.J. No. 1573 (Ont. S.C.), Trezzi v. Trezzi, 2019 ONCA 978, Ross v. Canada Trust Company, 2021 ONCA 161, Zindler v. The Salvation Army et al., 2015 MBCA 33, Kilby v. Harmer Estate, [1965] S.C.R. 24, Jones v. Westcomb (1711), Prec.Ch. 316, Re Fox’s Estate, [1937] 4 All E.R. 664 (C.A.), Fodazi v. Koukia, 2023 ONSC 6260, Burns Estate v. Mellon (2000), 48 O.R. (3d) 641 (C.A.), Fodazi v. Koukia, 2023 ONSC 6260, Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854, Sands Estate v. Sonnwald (1986), 9 C.P.C. (2d) 100 (Ont. H.C.), Spence v. BMO Trust Company, 2016 ONCA 196, Marshall v. Watson Wyatt & Co. (2002), 57 O.R. (3d) 813 (C.A.), Leader Media Productions Ltd. v. Sentinel Hill Alliance Atlantis Equicap Limited Partnership, 2008 ONCA 463, Harris v. Leikin Group Inc., 2014 ONCA 479, Hoang v. Vicentini, 2016 ONCA 723, Ly Innovative Group Inc. v. Facilitate Settlement Corporation, 2025 ONCA 194, Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, Westover Estate v. Jolicouer, 2024 ONCA 81, Henderson Estate (Re), 2024 MBCA 95, Report on Interpretation of Wills, LRC 58 (Victoria, 1982), Albert H. Oosterhoff et al., Oosterhoff on Wills, 9th ed. (Toronto: Thomson Reuters, 2021), Ian Hull and Suzana Popovic-Montag, Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2000), The Canadian Law of Wills: Volume 2 Construction, 2d ed. (Toronto: Butterworths, 1982), Maurice Cullity, “Rectification of Wills – A Comment on the Robinson Case” (2012) 31:2 E.T.R. 127, Albert H. Oosterhoff, “The Discrete Functions of Courts of Probate and Construction” (2017) 46:3 Adv. Q. 316

Smith v. Nagy, 2026 ONCA 545

Keywords: Torts, Battery, Defamation, Defences, Consent, Justification, Civil Procedure, Evidence, Burden of Proof, Issue Estoppel, Courts of Justice Act, RSO 1990, c C.43, ss. 134(6), 137.1, Criminal Code, RSC 1985, c C-46, Libel and Slander Act, RSO 1990, c. L.12, s.22, Firearms Act, SC 1995, c. 39, s.74, Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, Nole v. Seymour, 2023 BCCA 329, F.H. v. McDougall, 2008 SCC 53, Essex Condominium Corporation No. 125 v. Heritage Park Villas Inc., 2024 ONCA 889, Caisse populaire de Maniwaki v. Giroux, [1993] 1 SCR 282, Shakur v. Pilot Insurance Co. (1990), 74 O.R. (2d) 673 (C.A.), McDowell v. Barker, 2012 ONCA 827, Charkhandeh v. College of Dental Surgeons of Alberta, 2025 ABCA 258, Grant v. Torstar Corp., 2009 SCC 61, Bent v. Platnick, 2020 SCC 23, Vanderkooy v. Vanderkooy et al., 2013 ONSC 4796, A.T. v. D.C., 2026 BCCA 250, Hansman v. Neufeld, 2023 SCC 14, Polgrain Estate v. The Toronto East General Hospital, 2008 ONCA 427, Patrick Street Holdings Ltd. v. 11386 NL Inc., 2026 SCC 15, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, Heynen v. Frito Lay Canada Ltd. (1999), 45 OR (3d) 776 (CA), Kennedy v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 1196, Fawson Estate v. Deveau, 2016 NSCA 39, British Columbia (Chief firearms officer) v. Donnelly, 2001 BCSC 724, Whitfield v. Whitfield, 2016 ONCA 720, R. v. R.(D.), [1996] 2 S.C.R. 291, Tajkovich v. Ontario (Natural Resources), 2009 ONCA 898, Smith v. Nagy, 2021 ONSC 4265, Dovbush v. Mouzitchka, 2016 ONCA 381, Shaver Hospital for Chest Diseases v. Slesar et al. (1979), 27 O.R. (2d) 383 (CA), Becker v. Toronto (City), 2020 ONCA 607, Kaiman v. Graham, 2009 ONCA 77, Raymond E. Brown, The Law of Defamation in Canada, 2nd ed. (Toronto: Carswell, 1994), Erika Chamberlain, Karen Eltis and Raymond E. Brown, Law of Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed. (Toronto: Carswell, 1994)

Pringle v. Zenova Group PLC, 2026 ONCA 549

Keywords: Contracts, Employment, Wrongful Dismissal, Independent Contractors, Civil Procedure, Striking Pleadings, Jurisdiction, Real and Substantial Connection, Forum Non Conveniens, Employment Standards Act, 2000, S.O. 2000, c. 41, ss. 1, 3(1)(a), 5, 96(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 106, Rules of Civil Procedure, r. 21.01(3)(a), Belton v. Liberty Insurance Co. of Canada (2004), 72 O.R. (3d) 81 (C.A.), 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, Braiden v. La-Z-Boy Canada Ltd., 2008 ONCA 464, Housen v. Nikolaisen, 2002 SCC 33, Guildford v. Anglo-French Steamship Co., [1883] 9 S.C.R. 303, HMI Industries Inc. v. Santos, 2010 QCCA 606, Mayer v. J. Conrad Lavigne Ltd. (1979), 27 O.R. (2d) 129 (C.A.), Gerling v. Camrose Regional Exhibition & Agricultural Society, 2022 ABCA 210, Wolf v. Canada, 2002 FCA 96, Royal Winnipeg Ballet v. Canada (Minister of National Revenue), 2006 FCA 87, 1392644 Ontario Inc. v. Canada (Minister of National Revenue), 2013 FCA 85, Ligocki v. Allianz Insurance Company of Canada, 2010 ONSC 1166, GlycoBioSciences Inc. v. Herrero and Associates, 2023 ONCA 331, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONCA 862, Black & McDonald Limited v. Eiffage Innovative Canada Inc., 2023 ONCA 91, Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736

Baig v. Thunder Bay Vacant Land Condominium Corporation No. 39, 2026 ONCA 547

Keywords: Civil Procedure, Real Property, Condominiums, Oppression, Costs, Interlocutory Injunction, Condominium Act, 1998, S.O. 1998, c. 19, ss. 132, 134 & 135, Rules of Civil Procedure, rr. 14.05(2), 57.01(1), 57.01(5) & 57.01(7), Noguera v. Muskoka Condominium Corporation No. 22, 2020 ONCA 46, Naneff v. Con-Crete Holdings Ltd. (1998), 23 O.R. (3d) 481 (C.A.), Wilson v. Alharayeri, 2017 SCC 39, Afolabi v. Law Society of Ontario, 2025 ONCA 257, leave to appeal refused, [2025] S.C.C.A. No. 203, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Chand Morningside Plaza Inc. v. Healthy Lifestyle Medical Group Inc., 2026 ONCA 558

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Guarantees, Defences, No Demand, Independent Legal Advice, Undue Influence, Non Est Factum, Civil Procedure, Amending Pleadings, Procedural and Natural Justice, Trials, Reopening, Fresh Evidence, Rules of Civil Procedure, r. 26.01, O’Bryne v. Farmers’ Mutual Insurance Company (Lindsay), 2014 ONCA 543, Rassouli-Rashti v. Tayefi, 2023 ONCA 315, 0867740 B.C. Ltd. v. Quails View Farm Inc., 2014 BCCA 252, Bank of Nova Scotia v. Williamson, 2009 ONCA 754, Holmes v. Hatch Ltd., 2017 ONCA 880, Rodaro v. Royal Bank (2002), 59 O.R. (3d) 74 (C.A.), 460635 Ontario Limited v. 1002953 Ontario Inc., [1999] O.J. No. 4071 (C.A.), Avedian v. Enbridge Gas Distribution Inc., 2023 ONCA 289, Family Delicatessen Ltd. v. London (City), 2006 CanLII 5135 (Ont. C.A.), 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42, Milosevic (Litigation Guardian of) v. Etheridge (1991), 3 C.P.C. (3d) 69 (Ont. Gen. Div.), Kings Gate Developments Inc. v. Colangelo (1994), 17 O.R. (3d) 841 (C.A.), Bank of Montreal v. Duguid (2000), 47 O.R. (3d) 737 (C.A.), CIBC Mortgage Corp. v. Rowatt (2002), 61 O.R. (3d) 737 (C.A.), JGB Collateral v. Rochon, 2020 ONCA 464, Royal Bank of Canada v. Biddell et al, 2015 ONSC 6535, Bertolo v. Bank of Montreal (1986), 57 O.R. (2d) 577 (C.A.)

The Dominion of Canada General Insurance Company (Travelers Canada), 2026 ONCA 553

Keywords: Contracts, Insurance, Interpretation, Coverage, Automobiles, Civil Procedure, Appeals, Standard of Review, Standard Form Contracts, Correctness, Insurance Act, R.S.O. 1990, c I.8, s.129, OAP 1: Ontario Automobile Policy (OAP1), OPCF 21A: Ontario Policy Change Form Monthly Reporting Basis Fleet Endorsement (Form AF-136) (a), (c), (f), Rules of Civil Procedure, r. 49.14(7), David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161 (C.A.), Northbridge General Insurance Corp. v. 943240 Alberta Ltd., 2013 ABQB 760, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Lombard Canada Ltd. v. Zurich Insurance Co., 2010 ONCA 292, Ontario v. St. Paul Fire and Marine Insurance Company, 2023 ONCA 173, Le Treport Wedding & Convention Centre Ltd. v. Co-operators General Insurance Company, 2020 ONCA 487, Sam’s Auto Wrecking Co. Ltd. (Wentworth Metal) v. Lombard General Insurance Company of Canada, 2013 ONCA 186, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, Consolidated-Bathurst v. Mutual Boiler, [1980] 1 S.C.R. 888, Madill v. Chu, [1977] 2 S.C.R. 400, Kestenberg Siegal Lipkus v. Royal Sun Alliance Insurance Company of Canada, 2024 ONCA 607, Stuart v. Hutchins (1998), 40 O.R. (3d) 321 (C.A.), Kozel v. The Personal Insurance Company, 2014 ONCA 130, Shiloh Spinners Ltd. v. Harding, [1973] A.C. 691 (H.L.), 1086289 Ontario Inc. (Urban Electrical Contractors) v. Welland (City), 2026 ONCA 352, Snell’s Equity (29th ed. 1990)

Patterson v. Eastern Residential Services Inc., 2026 ONCA 543

Keywords: Torts, Negligence, Malicious Performance of a Statutory Duty, Misfeasance in Public Office, Intrusion Upon Seclusion, Breach of Privacy, Intimidation, Inducing Breach of Contract, Civil Conspiracy, Intentional Infliction of Nervous Shock, Breach of Confidence, Wrongful Falsehood, Charter Claims, Breach of Contract, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Canadian Charter of Rights and Freedoms, ss. 7, 12 & 24, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, Rules of Civil Procedure, r. 21, J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198, Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, Fowler v. Family and Children’s Services of the Waterloo Region, 2024 ONCA 41, leave to appeal refused, [2024] S.C.C.A. No. 151, New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, R. v. Hills, 2023 SCC 2, Quebec (Attorney General) v. 9147‑0732 Québec inc., 2020 SCC 32, Harrison v. British Columbia (Children and Family Development), 2010 BCCA 220, leave to appeal refused, [2010] S.C.C.A. No. 293, Odhavji Estate v. Woodhouse, 2003 SCC 69, Meekis v. Ontario, 2021 ONCA 534, Hartman v. Canada (Attorney General), 2026 ONCA 270, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Granite Power Corporation v. Ontario (2004), 72 O.R. (3d) 194 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 409, Ministry of Children and Youth Services, Ontario Child Protection Standards (2016) (Toronto: Government of Ontario, 2016)

2615333 Ontario Inc. v. Central Park Ajax Developments Phase 1 Inc., 2026 ONCA 544

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Jurisdiction, Leave to Appeal, Orders, Collateral Attack, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 s. 193, Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), North House Foods Ltd. (Re), 2025 ONCA 563, Crown Capital Private Credit Fund v. Mill Street & Co. Inc., 2022 ONCA 194, Proex Logistics Inc. (Re), 2025 ONCA 832, Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, Enroute Imports Inc. (Re), 2016 ONCA 247, Romspen Investment Corporation v. Courtice Auto Wreckers Limited, 2017 ONCA 301, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Downing Street Financial Inc. v. 1000162497 Ontario Inc., 2024 ONCA 639, First National Financial GP Corporation v. Golden Dragon HO 10 Inc., 2019 ONCA 873, Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Bank of Montreal v. 11977636 Canada Inc., 2025 ONCA 561

Senos v. Senos, 2026 ONCA 552

Keywords: Family Law, Spousal Support, Property, Corporations, Corporate Veil, Remedies, Equalization of Net Family Property, Restraining Orders, Peace Bonds, Civil Procedure, Procedural and Natural Justice, Orders, Costs, Setting Aside, Canadian Charter of Rights and Freedoms, s. 7, Personal Property Security Act, R.S.O. 1990, c. P.10, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15.2(4), Family Law Act, R.S.O. 1990, c. F.3., s. 46, Criminal Code of Canada, R.S.C. 1985, c. C-46, ss. 127(1), 810, Family Law Rules, O. Reg. 114/99, rr. 2(3), 25(19), Leskun v. Leskun, 2006 SCC 25, Greenglass v. Greenglass, 2010 ONCA 675, Kaiman v. Graham, 2009 ONCA 77, K.K. v. M.M., 2025 ONCA 446, R. v. R.E.M., 2008 SCC 51, R. v. G.F., 2021 SCC 20, R. v. Sheppard, 2025 SCC 29, Sonia v. Ratan, 2022 ONSC 6340, Hutter v. Hutter, 2024 ONSC 785, K.K. v. M.M., 2024 ONSC 1092, Yaiguaje v. Chevron Corporation, 2018 ONCA 472, R. v. Petre, 2013 ONSC 3048, R. v. Musoni (2009), 243 C.C.C. (3d) 17 (Ont. S.C.)

Redback Tours Inc. v. Canadian Equipment Finance & Leasing Inc., 2026 ONCA 555

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Equity of Redemption, Acceleration Clauses, Damages, Future Interest, Costs, Mortgages Act, RSO 1990, c M40, ss. 1, 17, 18, 22, 1173928 Ontario Inc. v. 1463096 Ontario Inc., 2018 ONCA 699, Brown v. Cole (1845), 60 E.R. 424 (Ch.); Bovill v. Endle, [1896] 1 Ch. 648, Kreglinger v. New Patagonia Meat and Cold Storage Co. Ltd., [1914] AC 25 (U.K. H.L.), Smith v. Smith, [1891] 3 Ch. 550; Archbold v. Building & Loan Ass’n, (1888), 15 O.R. 237 (H.C.), Re Belyon Properties Ltd. v. Kelcey, [1968] 2 O.R. 257 (C.A.)

Bank of Montreal v. Saidani, 2026 ONCA 550

Keywords: Contracts, Debtor-Creditor, Guarantees, Conditions Precedent, Torts, Negligence, Misrepresentation, Duty of Care, Civil Procedure, Summary Judgment, Trial of an Issue, Appeals, New Issue on Appeal

Short Civil Decisions

Nguyen v. Pham, 2026 ONCA 559

Keywords: Family Law, Civil Procedure, Orders, Costs, Appeals, Extension of Time

CIVIL DECISIONS

Kentros v. Kentros, 2026 ONCA 546

[Sossin, Gomery, Osborne, JJ.A.]

Counsel:

L. Tupman, A. Bloom and N. Fung, for the appellant/respondent by way of cross-appeal

D.N. Delagran and G. Madill, for the respondents/appellants by way of cross-appeal

M.K. personally, in his capacity as Estate Trustee of the Estate of E.K., deceased and in his capacity as Trustee of The Kentros Alter Ego Trust, and A.K., in her capacity as Trustee for Kentros Alter Ego Trust

S.J. Stamm and J. Evans, for the respondent/respondent by way of cross-appeal, the Office of the Children’s Lawyer, litigation guardian for the minor child

M.K.M, acting in person

facts:

This case concerns a will that the drafting solicitor acknowledged did not reflect the testator’s wishes. The will was missing a remainderman clause. The bequests section gave the testator’s husband a life interest in two properties that the testator owned and provided that their two grandchildren should inherit the properties if her husband did not survive her for 30 days. The will did not, however, say who should get the properties at the expiry of the husband’s life interest should he survive the testator for more than 30 days.

Sitting as a court of construction, the application judge concluded that the testator intended to give the properties to her grandchildren whenever her husband died. He ordered that language be inserted into the will to have this effect.

The appellant contended that the application judge exceeded his limited powers as a court of construction and misapplied evidentiary rules. The appellants by cross-appeal agreed that the testator intended to gift the properties to her grandchildren but argued that the application judge should have imposed a different remedy than rectification.

issues:

Issues On Appeal:

1. Did the application judge exceed the scope of the court’s power of rectification by adding a remainderman clause in favour of the grandchildren?

2. Did the application judge misconstrue or misapply section 13 of the Evidence Act in ruling that some evidence was inadmissible?

3. Did the application judge improperly rely on direct extrinsic evidence in ascertaining the testator’s intentions with respect to the properties?

Issues on Cross-Appeal:

4. Did the application judge err in ordering rectification as a remedy?

5. Did the application judge err in exercising his discretion to order costs?

holding:

Appeal and cross-appeal dismissed.

reasoning:

1. No, the application judge did not exceed the scope of the court’s power of rectification by adding a remainderman clause in favour of the grandchildren. In appropriate circumstances, a court can rectify a will to prevent the defeat of a testator’s intentions in the face of errors or omissions by the will’s drafter. The application judge correctly held that the testator intended for her will to completely deal with her entire estate. There was nothing in the words of the will that suggested that she intended to leave some part of her property undisposed and that such property would pass in accordance with the laws of intestacy.

As a result, the application judge concluded that this was an appropriate circumstance for rectification as the failure to include a remainderman for the properties was a clear mistake with the result that the will did not completely express the testator’s testamentary intentions. There is no basis for appellate intervention on this issue.

2. No, the application judge did not misconstrue or misapply section 13 of the Evidence Act. This provision provides that, “in an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.”

The appellant contended that the application judge erred in rejecting his evidence that the testator told him in 2015 that she wanted him and his children to inherit one of the properties. The Court held that the application judge was correctly aware that the corroboration requirement can be met through cumulative pieces of independent evidence, and he thus likely considered the cumulative weight of any evidence that arguably could have corroborated the appellant’s allegations of the testator’s statements in 2015.

3. No, the application judge did not improperly rely on direct extrinsic evidence in ascertaining the testator’s intentions with respect to the properties. The appellant was precluded from advancing this ground of appeal because they either adduced this evidence or failed to object to it. A party in a civil case generally should not bring an appeal on the basis of some aspect of the trial proceeding to which it did not object. The Court found that it was not in the interests of justice to have the Court reconsider whether it was appropriate for the application judge to rely on some of the appellant’s own evidence or other evidence to which he did not object.

4. No, the application judge did not err in ordering rectification as a remedy. No reviewable error was identified in the application judge’s determination that the husband, as estate trustee, breached his fiduciary duty and took advantage of the drafting error in the testator’s will by taking ownership of the properties without notice to the Office of the Children’s Lawyer and by transferring the properties to a trust. The application judge correctly decided that the testator’s will, as rectified, gifted the properties to the grandchildren upon the termination of her husband’s life interest.

5. No, the application judge did not err in exercising his discretion to order costs. There was no principled reason why the estate should not bear some of the litigation costs where a flaw in the will gave rise to questions of interpretation. The testator executed a will that omitted a remainderman clause, so her estate was responsible for the costs of obtaining the court’s directions with respect to the error. The application judge correctly recognized that the estate should not pay the share of costs incurred because of the unreasonable positions taken by the principal parties to the litigation.

Smith v. Nagy, 2026 ONCA 545

[Paciocco, Thorburn and George JJ.A.]

Counsel:

G. Latner, for the appellant

C. Daoust, for the respondent

Keywords: Torts, Battery, Defamation, Defences, Consent, Justification, Civil Procedure, Evidence, Burden of Proof, Issue Estoppel, Courts of Justice Act, RSO 1990, c C.43, ss. 134(6), 137.1, Criminal Code, RSC 1985, c C-46, Libel and Slander Act, RSO 1990, c. L.12, s.22, Firearms Act,SC 1995, c. 39, s.74, Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, Nole v. Seymour, 2023 BCCA 329, F.H. v. McDougall, 2008 SCC 53, Essex Condominium Corporation No. 125 v. Heritage Park Villas Inc., 2024 ONCA 889, Caisse populaire de Maniwaki v. Giroux, [1993] 1 SCR 282, Shakur v. Pilot Insurance Co. (1990), 74 O.R. (2d) 673 (C.A.), McDowell v. Barker, 2012 ONCA 827, Charkhandeh v. College of Dental Surgeons of Alberta, 2025 ABCA 258, Grant v. Torstar Corp., 2009 SCC 61, Bent v. Platnick, 2020 SCC 23, Vanderkooy v. Vanderkooy et al., 2013 ONSC 4796, A.T. v. D.C., 2026 BCCA 250, Hansman v. Neufeld, 2023 SCC 14, Polgrain Estate v. The Toronto East General Hospital, 2008 ONCA 427, Patrick Street Holdings Ltd. v. 11386 NL Inc., 2026 SCC 15, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, Heynen v. Frito Lay Canada Ltd. (1999), 45 OR (3d) 776 (CA), Kennedy v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 1196, Fawson Estate v. Deveau, 2016 NSCA 39, British Columbia (Chief firearms officer) v. Donnelly, 2001 BCSC 724, Whitfield v. Whitfield, 2016 ONCA 720, R. v. R.(D.), [1996] 2 S.C.R. 291, Tajkovich v. Ontario (Natural Resources), 2009 ONCA 898, Smith v. Nagy, 2021 ONSC 4265, Dovbush v. Mouzitchka, 2016 ONCA 381, Shaver Hospital for Chest Diseases v. Slesar et al. (1979), 27 O.R. (2d) 383 (CA), Becker v. Toronto (City), 2020 ONCA 607, Kaiman v. Graham, 2009 ONCA 77, Raymond E. Brown, The Law of Defamation in Canada, 2nd ed. (Toronto: Carswell, 1994), Erika Chamberlain, Karen Eltis and Raymond E. Brown, Law of Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed. (Toronto: Carswell, 1994)

facts:

The appellant appealed the dismissal of a sexual battery claim she brought against the respondent, her former husband. She also appealed a defamation judgment against her in his favour, which required her to pay the respondent general damages in the amount of $ 40,000 and to remove “defamatory statements” that she posted online, which the trial judge concluded falsely alleged that the respondent sexually and physically assaulted her.

The respondent was an artist, tabletop role-playing game creator, and adult film performer with a significant online presence. He and the appellant were married for approximately ten years in a polyamorous relationship, living mostly in New York City and Los Angeles. Almost two years after their 2017 separation, the appellant, an Ontario resident, made a public Facebook post which claimed that the respondent had sexually, physically, psychologically and emotionally abused her during their relationship which caused her to suffer post-traumatic stress disorder from the abuse, and also alleged that he had abused other women, attaching the accounts of two other women to the post. The respondent published denials on his blog that attributed the appellant’s “false” allegations to what he claimed to be her borderline personality disorder, and he also sued her for defamation. The appellant counterclaimed, suing him for sexual battery and for defaming her in his denial posts, with the actions tried together.

The trial judge dismissed the appellant’s defamation and sexual battery action after finding that she had not established, on a balance of probabilities, that she did not consent to the sexual activity at the time and that the respondent knew or ought to have known that she did not consent. The trial judge allowed the respondent’s defamation action based on the appellant’s charges that he had sexually and physically abused her, and on charges that the parties’ relationship was strictly characterized by abuse or trauma without “reprieves of loving or sweet acts”. The trial judge further found that other charges made by the appellant, including claims of emotional and psychological abuse and the sexual assault allegations involving other women, were not defamatory because the defences of justification and/or fair comment applied.

The trial judge confined the award for defamation to general damages of $ 40,000 because of the respondent’s failure to establish monetary loss, his already failing or inconsistent public reputation prior to the Facebook post, and because the non-defamatory portions of the Facebook Post would also impact his on-line reputation.

issues:

Did the trial judge err by reversing the burden on consent in the sexual battery action?
Did the trial judge err by requiring the appellant to prove non-consent in the respondent’s defamation action?
Did the trial judge commit legal error by making inconsistent findings?
Did the trial judge give insufficient reasons relating to the defence of qualified privilege?
Did the trial judge err by failing to apply the defence of partial justification?
Did the trial judge err by conflating the Facebook post with claims made in the appellant’s counterclaim?

holding:

Appeal dismissed.

reasoning:

Yes. In a battery action, if the defendant does not dispute that the contact took place, the defendant bears the burden of proving that the plaintiff consented or that a reasonable person in his position would have thought that she consented, with non-consent presumed in sexual battery actions. The trial judge failed to assign this burden correctly, instead denying the sexual battery claim because the appellant had not established, on a balance of probabilities, that she did not consent, and asking whether she had provided sufficiently clear, convincing and cogent evidence, a standard wrongly imposed on her for an issue the respondent was legally obliged to disprove.

However, the Court found that a new trial was not warranted, since an error in assigning the burden only requires a new trial where the finding of fact on which the outcome depends cannot be untangled from the legal error. The trial judge made affirmative findings that he accepted the respondent’s evidence that the nature of the relationship between the parties brought about a consensual physical relationship which included the sexual and physical interactions complained of by the appellant, and that there was not an absence of consent at the time that the sexual activity was happening during the relationship. His credibility findings reinforced this, as he did not accept the appellant’s testimony, finding it not clear, convincing or cogent, while preferring the respondent’s testimony and that of other witnesses. Regardless of who bore the burden, the trial judge scrutinized both parties’ evidence for credibility and reliability, outright rejecting the appellant’s account and accepting the respondent’s. Since the trial judge was satisfied on the balance of probabilities that the appellant had consented, the Court found that no substantial wrong or miscarriage of justice occurred and there was no need for a new trial.

2. No. In a defamation action, once the plaintiff proves that words are defamatory, those words are presumed to be false, and the burden falls to the defendant to prove that the sting of the words is substantially true to rely on justification. The trial judge respected this by imposing the burden on the appellant to prove her sexual battery allegations were true and found she had not discharged it. The appellant’s submission that a partial exception should apply where defamatory statements allege battery was rejected, as the reasoning in Scalera, which exists to give an incentive to the party who “is in a position to say what happened” to testify and to protect personal autonomy over one’s body, does not apply with full force in defamation actions.

The Court also rejected the appellant’s inconsistency and absurdity argument, finding that the law was not troubled by different outcomes resulting from different rules of proof applying in different actions arising from the same facts. The Court further found that issue estoppel would not apply either, since it is enough for liability in a sexual battery action for the defendant to fail to prove consent, and enough for liability in defamation for the defendant to fail to prove non-consent, so a failure to prove either would not decide whether the complainant consented.

3. No. The Court found no incompatible findings of fact. First, the trial judge’s finding that the Facebook post’s trigger warning was untrue did not contradict his finding that the post contained allegations of violence and sexual assault. Second, the trial judge’s finding that it had not been shown to be true that the respondent told the appellant she could not say no to sex did not contradict his findings about what the respondent said regarding the consequences of not consenting, since telling someone there will be consequences for declining sex is not the same as telling them they have no choice. Third, the trial judge’s finding that the appellant had not established a factual basis for claiming she suffered a decade of trauma did not contradict his finding that she suffered pain and damage from the emotional and psychological abuse she experienced.

4. No. The trial judge did not address the defence of qualified privilege because the appellant did not argue this defence at trial, and it was therefore not one of the important issues dividing the parties that the trial judge was required to grapple with.

5. No. Under s. 22 of the Libel and Slander Act, an unjustified charge only gives rise to liability where it causes additional, independent, or “qualitatively different” material injury. Although the trial judge erroneously concluded that partial justification was not a defence, his own findings showed that he would not have applied it even had he recognized it, since he found that the allegations of sexual assault and trauma caused material additional damage to the respondent’s reputation. It was clear that the unjustified charges caused such additional damage beyond that caused by the justified charges, so s. 22 would not assist the appellant.

6. No. The Court found no merit to the submission that the trial judge improperly conflated the Facebook post with the counterclaim allegations, since justification depends on the underlying truth of the allegation, and it was proper for the trial judge to consider the counterclaim allegations because the impugned portions of the Facebook post carried the sting of battery.

Pringle v. Zenova Group PLC, 2026 ONCA 549

[Van Rensburg, Miller and Sossin JJ.A]

Counsel:

P. Champ, for the appellant

K. Provost-Yombo, for the respondents

facts:

In 2020, the founders incorporated a company, which would eventually become known as one of the respondents, Zenova Ltd., under the laws of England and Wales. The appellant and Mr. S were based in Canada, while Mr. C was based in England, where the business was headquartered. The Zenova Group PLC board of directors decided that, in order to attract investment, the company needed to show that it had employees and a management team under contract. In the spring of 2021, the appellant was offered and accepted a position as Director of Product Development. He was given the option of being an employee or an independent contractor, and for tax reasons chose to be classified as an independent contractor. In May 2021, the appellant and Zenova Ltd. entered into an agreement titled “Product Development Consultant Contract for Services” (the “Agreement”). The Agreement was for an initial term of three years. The appellant began his full-time work with Zenova in July 2021. Although the appellant was considered part of the management team, and held the title of Director of Product Development, he was never a director or officer of Zenova. In September 2022, Zenova Ltd., through legal counsel, notified the appellant that the Agreement was terminated, allegedly for cause. The termination letter asserted that the appellant had breached the Agreement by providing services to at least two other businesses and not devoting his full time and attention to Zenova’s business.

The appellant brought a wrongful dismissal action against the respondent, Zenova entities (together, “Zenova”). On a motion under r. 21.01(3)(a) the motion judge concluded that the appellant was an independent contractor – not an employee – for the purposes of the Employment Standards Act (“ESA”). As the ESA had no application, the forum selection clause in the parties’ agreement, which provided that all disputes arising under the agreement are subject to the exclusive jurisdiction of the courts of England and Wales, was valid and enforceable. The motion judge thus stayed the action.

issues:

Did the motion judge err in respect of her determination that the appellant was an independent contractor (a) in her application of the Belton factors; and (b) by adding into the Belton analysis as a “sixth factor”, the written terms of the Agreement?
Did the motion judge err in classifying the relationship between the parties as one of independent contractor?
Does Ontario have jurisdiction over the parties’ litigation?
If yes, is Ontario the most convenient forum?

holding:

Appeal allowed.

reasoning:

Yes. There is no single and universally applicable criterion for determining whether a worker is an employee:671122 Ontario Ltd. v. Sagaz Industries Canada Inc. The context, including the statutory context if there is one, shapes the analysis. The Belton list of factors is not exhaustive, and the weight to be given to any particular factor depends on the context. Not all five criteria needed to point to an employment relationship for there to be such a relationship. Sometimes the criteria might point in different directions, and not all the criteria will necessarily be relevant. What is important is to look at the “total relationship” between the parties. One must “examine all the possible factors which have been referred to in [the] cases as bearing on the nature of the relationship between the parties concerned.”: Sagaz, at para. 46.

The first Belton factor is whether or not the appellant was limited exclusively to the service of Zenova. Considering all of the circumstances, the appellant was effectively required to work exclusively for Zenova. The second Belton factor concerns whether or not the appellant was subject to Zenova’s control. It is typical for executives, managers, professionals or highly trained persons, whether employees or independent contractors, to have independence in how they carry out their responsibilities. Although Zenova may have taken a relatively hands-off approach to the appellant’s work for most of the working relationship, it relied on clauses permitting Zenova to direct the appellant to work additional hours as it deemed necessary and permitting Zenova to dictate the “place of service”. The third Belton factor – whether the appellant had an investment or interest in the “tools” relating to his service – was not at issue in this appeal. The fourth Belton factor is whether the appellant had undertaken any risk in the business sense or had any expectation of profit associated with the delivery of his services. There was nothing to suggest that the appellant had the ability to enhance the profitability of the Agreement by adjusting how the work was carried out or who performed it. The fifth factor is whether or not the appellant’s work activity was part of the business organization of Zenova or, in other words, “whose business was it?” The answer to the question, “whose business was it?”, was that it was Zenova’s business, not the appellant’s.

In summary, the Belton factors point to an employment relationship between the parties.

2. Yes. The Court did not agree with the motion judge’s view that clause (c), which provided that the Agreement was not an employment contract, was entitled to “significant weight” in this case. The fact that the Agreement states that it is not an employment agreement is not a significant factor and does not affect the result. Clause (c) of the Agreement was inconsistent with the substance of the parties’ relationship. The Belton factors strongly pointed to an employment relationship in this case. Even where courts have specifically referred to the parties’ characterization of their relationship, they have continued to emphasize that the true substance of the relationship takes priority over the parties’ own characterization of it.

3. For the jurisdiction issue, the question was whether there is a “good arguable case” that there is a “real and substantial connection” between the action and Ontario sufficient to establish jurisdiction over a foreign defendant: GlycoBioSciences Inc. v. Herrero and Associates, at para. 6. The services provided under the Agreement were performed by the appellant in Ontario, and the Agreement expressly contemplated that it would be performed in Zenova’s principal office in Canada, which, when the services were provided, and with the agreement of Zenova, was located in Ontario. The respondents would reasonably have expected to face a claim from the appellant in Ontario where they employed his services on a full-time basis.

4. Yes. With the Ontario court having jurisdiction, the onus was on the respondents to establish that their preferred forum was clearly more appropriate, as being “in a better position to dispose fairly and efficiently of the litigation.”: Van Breda, at para. 109. The action involved an employment contract where services were provided by the appellant in Ontario and where both the breach and the alleged just cause for termination are connected to Ontario. Zenova therefore did not establish that the UK was the clearly more appropriate forum.

Baig v. Thunder Bay Vacant Land Condominium Corporation No. 39, 2026 ONCA 547

[Van Rensburg, Paciocco and Thorburn JJ.A.]

Counsel:

J. Laxer, for the appellant

G.W. Sanson and D. Somerville, for the respondent Thunder Bay Vacant Land Condominium Corporation No. 39

M.R. Smiley and S. Bernier, for the respondents L.B. and J.D.

facts:

The appellant, Ms. B., owns one unit and co-owns two other units in a freehold vacant land condominium corporation, the respondent Thunder Bay Vacant Land Corporation No. 39 (the “Corporation”). Ms. B built a home on lot 3 while adjacent lots 2 and 4 remain vacant.

Ms. B’s property is part of a residential development adjacent to a conservation area. To ensure the development does not disrupt the natural environment, the Declaration contains conditions to be complied with during construction. These conditions were subject to the Board’s right to grant a “reasonable variance or adjustment”.

The respondents, L.B. and J.D., later purchased vacant lot 5 bordering Ms. B’s vacant lot. L.B. and J.D. submitted a site plan for Board approval. The Board visited the site and reviewed the plan but did not approve the plan. L.B. and J.D. still moved forward with preparation for construction. Some vegetation was mistakenly removed from adjoining properties.

Ms. B and other neighbouring owners became concerned, and Ms. B wrote to the board seeking enforcement of the Declaration and stoppage of any further development until L.B. and J.D. agreed to follow the Declaration and remedy any damage that had been done. The Board declined to issue a half work order until the situation was further investigated. The parties never reached a resolution and approval remained outstanding.

L.B. and J.D. continued to move forward with construction and changed the grade of the lot. Requests were made by community members to halt construction. During this period, the president of the Board was in a conflict of interest. He was hired by L.B. and J.D. to install their septic system. After he resigned from the Board, a halt work order was issued.

L.B. and J.D., through legal counsel, responded that the halt work order was unenforceable and threatened to sue various condominium authorities if they were prevented from continuing their work. At this time, the Corporation retained its own legal counsel who threatened legal action in the Superior Court if the halt work order was not respected. L.B. and J.D. then submitted two new landscape plans, which were rejected. While discussions between legal counsel were looking to eventually approve the development of L.B. and J.D.’s lot, construction continued without approval.

Ms. B brought a motion without notice for an emergency injunction to stop construction on the lot. After the motion was adjourned, Ms. B was informed that the Board reached an agreement with L.B. and J.D. and that the halt work order was lifted, among other terms to ensure their compliance. L.B. and J.D. were allowed to resume development on their lot. The Corporation promised Ms. B and owners of adjacent lots the opportunity to review the landscape plan before Board approval, but they did not get that opportunity.

Ms. B’s motion was dismissed without prejudice for non-compliance with the Rules of Civil Procedure. She later brought an application against the respondents in Superior Court seeking declarations, compliance orders, damages and injunctive relief. Rasaiah J. granted an interlocutory injunction in the application, prohibiting further construction and/or development on lot 5 pending further order of the court.

issues:

Did the application judge err by dismissing and/or failing to adjudicate the s. 135 oppression claims against L.B. and J.D.?
Did the application judge err by dismissing and/or failing to adjudicate the s. 135 oppression claims against the Corporation?
Did the application judge err in ruling on costs without giving Ms. B the opportunity to make submissions or to file a bill of costs?

holding:

Appeal allowed.

reasoning:

Yes. Section 135 of the Condominium Act authorizes claims for oppression. Section 135 is engaged where: (1) there has been a breach of the claimant’s objectively reasonable expectations; and (2) considered in context, the conduct complained of amounts to “oppression”, “unfair prejudice” or “unfair disregard”. The purpose of a s. 135 remedy is to rectify the matter.

The Court found that the application judge erred by failing to consider the oppression claim against L.B. and J.D. Ms. B was entitled to a declaration. The factual findings of the application judge established that the legal test for oppression was met. L.B. and J.D. breached the Declaration, the Act and Ms. B’s reasonable expectations. L.B. and J.D.’s conduct breached the terms of the Declaration, which was unfairly prejudicial to Ms. B and disregarded her interests.

However, no further remedy was warranted other than a declaration that L.B. and J.D. acted oppressively towards Ms. B. The harm from the oppressive conduct of L.B. and J.D. was already adequately addressed through the application judge’s remedies under s. 134. As for damages, there was nothing in the record that would support a claim by Ms. B against L.B. and J.D., other than for what was awarded: nominal damages of $ 5,000 for the act of trespass on her property.

Yes. The Court found that the application judge erred by failing to adjudicate the oppression claim against the Corporation. The application judge’s findings in respect of the Corporation’s conduct were sufficient to support a conclusion that the test for oppression had been met. Specifically, the Corporation did not take all reasonable steps to enforce the Act and the Declaration.

As a remedy for oppression, the Court granted a declaration that the Corporation engaged in conduct that was unfairly prejudicial to Ms. B and unfairly disregarded her interests in respect of the approval process for the development of lot 5. Further the Court provided an order that the Corporation give due and proper regard to her interests in its further review and approval of the development of lot 5.

There was also no basis for an award of damages against the Corporation.

Yes. The application judge erred in ruling on costs without giving Ms. B the opportunity to make submissions or to file a bill of costs. It was wrong for the application judge, after noting that bills of costs had not been filed, to determine costs without affording the parties an opportunity to file bills of costs and to make submissions. Rule 57.01(5) of the Rules of Civil Procedureonly requires that bills of costs be served after the hearing of an application.

Chand Morningside Plaza Inc. v. Healthy Lifestyle Medical Group Inc., 2026 ONCA 558

[Roberts, Coroza and Rahman JJ.A.]

Counsel:

J. Rosenstein, for the appellant

L. Levine, for the respondent

facts:

The appellants appealed the dismissal of their collection action against the respondents, A.B. and U.B. They seek payment of the amounts that remain owing under a guarantee and a mortgage that A.B. and U.B signed to assist their son, R.B, in the purchase of five commercial condominium units from the appellants. As part of the purchase price of the units, the son gave a vendor take-back mortgage to the appellants. To assist their son, A.B and U.B signed a guarantee, promissory note and mortgage on their home as collateral security for the vendor take-back mortgage. The vendor take-back mortgage went into default. The son, R.B made an assignment into bankruptcy. The units were sold under the first and second mortgages. The appellants sought payment from the parents of the deficiency owing under the vendor take-back mortgage.

The trial judge managed a trial where the self-represented parents – unsophisticated parties whose English language skills are very limited – initially declined to participate and then were unable to adequately respond to complicated issues or advance relevant defences. Following the appellants’ opening submissions, the parents left the courtroom, were not present during the evidence of the appellants’ principal and did not cross-examine him. A.B and U.B admitted to signing the guarantee, mortgage and promissory note. They both testified that when they met with the lawyer to sign certain documents, they received no advice about them but were just told where to sign them.

The closing submissions made by their son on behalf of the parents additionally raised the defence of undue influence with respect to U.B. He argued, first that there was an absence of proper independent legal advice, and his parents did not understand what they were signing, particularly his mother who just did what his father told her to do. Second, the parents received no personal benefit from signing the documents. Third, the appellants suffered no real damages because the entire debt had been satisfied as a consequence of the sale of the units under power of sale. No other defences were raised or requested during the trial. In his reasons for judgment, the trial judge concluded that the defence of non est factum was made out and that no demand for payment had been made.

Following the release of his reasons for judgment, the appellants sought to reopen the trial to file a demand letter from their lawyers for payment under the mortgage addressed to the parents. The trial judge refused to reopen the trial and to consider the letter. In his ruling, he concluded that it would not have affected the outcome of the trial; that it could have been obtained before trial; and that considerations of finality, apparent cogency of the evidence, delay, fairness and prejudice mitigated against it.

issues:

Did the trial judge deny the appellants procedural fairness by dismissing their action based on unpleaded defences that were never raised at trial, without adequate notice or a meaningful opportunity to respond?

holding:

Appeal allowed.

reasoning:

Yes. The parties are entitled to know the issues that are joined in the proceeding. The court reiterated in Holmes v. Hatch Ltd., at para. 7: “The law assumes that the parties’ pleadings properly delineate all relevant claims in dispute and define the issues.” At the very least, if the court is considering new defences, an opportunity should be given to the opposing party to oppose the amendment and, if the amendment is permitted, to reopen the trial to call further evidence and make additional submissions. To prevent an unreasonable use of the amendment rule, where late amendments are permitted, the court should consider orders that will prevent trial unfairness, such as an adjournment of the trial to permit further production and examination for discovery, as well as ordering costs: Kings Gate Developments Inc., at pp. 844-45.

Trial unfairness resulted in this case because the appellants were not given adequate notice of the potential new defences and, consequently, not provided with an opportunity to respond to these new issues in a meaningful way.

The Court acknowledged that the trial judge’s efforts to assist the parents were laudable. However, it was an error for the trial judge to apply the new defence without giving the appellants notice he might do so and by not affording the appellants a meaningful opportunity to respond. Before amending the pleading, the trial judge was required to hear an amendment motion and, if the amendment were allowed, permit the appellants to respond. As noted by the trial judge, the demand issue was a defence. To consider it, he was required to allow an amendment to the statement of defence. Before he could amend the statement of defence, he had to obtain the consent of the appellants or decide the issue after argument. He did neither.

The appellants were unaware of the full scope of the issues being canvassed by the trial judge, the case they had to meet and the importance that the issues played in his reasons for judgment. They were not given an opportunity to object to the trial judge’s consideration of the new defences nor to present further evidence and make further submissions in court about the issues that principally underpinned the trial judge’s dismissal of their action. This was procedurally unfair and resulted in a miscarriage of justice. The judgment was set aside and the matter remitted for a new trial before a different judge.

The Dominion of Canada General Insurance Company (Travelers Canada), 2026 ONCA 553

[Thorburn, Madsen and Rahman JJ.A.]

Counsel:

C. Morrison and K. Lefebvre, for the appellant

J. MacQuarrie and K. Pillay, for the respondent

facts:

This was an insurance coverage dispute between the appellant insurer and the respondent insured regarding an automobile fleet policy (“the Policy”). The appellant appealed the application judge’s decision that required it to defend the action and indemnify the respondent.

The Ontario Automobile Policy was the standard Ontario auto insurance policy issued under provincial regulation pursuant to the Insurance Act. Other terms of the Policy were set out in the Certificate of Insurance, which included the Ontario Policy Change Form Monthly Reporting Basis Fleet endorsement pursuant to the Policy (“OPCF 21A”). The purpose of OPCF 21A was to allow the easy addition and removal of vehicles as they entered or left an insured’s fleet during the Policy term. Under OPCF 21A, the Policy covered all vehicles owned or leased for more than 30 days at the beginning of the Policy term, provided they were listed on the schedule of vehicles given to the insurer when the Policy term began (the “Schedule”).

The respondent’s vehicle, leased to a rental company, was involved in an accident on August 25, 2020. The vehicle was not included on the Schedule of vehicles when the Policy term began on September 15, 2019. The lessee first listed the vehicle on its monthly fleet report on September 29, 2020, a month after the accident and 14 days after the reporting deadline, without disclosing that it had been owned or leased before the Policy term. The lessee did not disclose the accident to the respondent until July 10, 2023, after both were named as defendants in a related action, at which point the respondent sought coverage from the appellant, which the appellant denied. The respondent also settled a separate action against its broker without disclosing it to the appellant, which learned of the settlement only during cross-examination.

The application judge held that all of the respondent’s vehicles were automatically covered by the Policy regardless of the Schedule, granted relief from forfeiture, and declined to address the non-disclosure issue as unpleaded.

issues:

Did the application judge err in finding that the respondent had coverage for the vehicle under the Policy?

a. Did the application judge err in finding that no request for coverage was required?

b. Did the application judge err in failing to consider whether a “request for coverage” was made on September 29, 2020?

c. Did the application judge err in failing to address when coverage would begin?

2. Did the application judge err in granting relief from forfeiture?

3. Did the application judge err in declining to address whether the respondent’s failure to disclose that it had entered a partial settlement with its broker should disentitle it from coverage?

holding:

Appeal allowed.

reasoning:

Yes. The Court found that the application judge erred in finding that the respondent had coverage for the vehicle. The Court noted that the standard of review was correctness, as the Policy was a standard form contract. When words in the Policy were clear and unambiguous, courts should give effect to the words read in the context of the Policy as a whole, and where there was ambiguity, coverage terms were to be interpreted broadly while exclusion clauses were interpreted narrowly.

a. Yes. The Court reviewed OPCF 21A (a) and (c) together to determine whether the vehicle was covered. OPCF 21A (a) applied to all vehicles owned or leased by the insured for more than 30 days, with the vehicle in question belonging in that category. OPCF 21A (c) provided that “the schedule of automobiles filed with the insurer includes all automobiles, as set out in (a) above, at the effective date of the Policy or renewal,” and the insured did not include the vehicle in the Schedule to be insured at the effective date of the Policy. The second sentence of OPCF 21A (c), set out in capital letters, limited the coverage otherwise provided by (a).

The Court accepted the appellant’s submission that these words clearly provided that vehicles pre-owned or leased at the effective date of the Policy, which were not included in the Schedule filed with the insurer, were treated differently than vehicles listed in the Schedule and/or acquired after the Policy term. The Court found the word “until” to be clear and synonymous with “before,” clearly providing that there was no coverage until the time a request was made to insure the vehicle. The Court did not agree with the respondent’s submission that all vehicles satisfying paragraph (a) were covered, nor with the application judge’s conclusion that the limits in OPCF 21A (c) had no meaning. Since the vehicle was not included in the Schedule in accordance with OPCF 21A (c), the Court found that there was no insurance coverage for the automobile until a “request” was made of the insurer.

b. Yes. A “request” is the act of asking for something, and the monthly report did not provide coverage where no coverage existed, but rather provided the necessary information to set the premium to be paid for the vehicles leased that month. The monthly report did not include an express request for coverage, nor did it indicate that the vehicle was not included in the Schedule. The Policy did not state what constituted a “request” for coverage, and because coverage clauses were to be interpreted broadly where there was ambiguity, the Court found that a filing of a communication with the insurer regarding the vehicle’s coverage may have been sufficient to constitute a request.

c. Yes. The OPCF 21A (c) made no provision for retroactive coverage, and although retroactive reporting to calculate premium amounts was provided for in OPCF 21A (f), that provision addressed the consequences of coverage, not which vehicles were covered. Since no request for coverage was made for the vehicle until September 29, 2020, and OPCF 21A (c) provided that there was no coverage until a request was made, there was no coverage before that date and therefore no coverage for the accident that occurred nearly a month earlier, on August 25, 2020.

2. No. The Court found that it was not necessary to decide this issue, given the conclusion that there was no coverage for the claim. However, it noted that if there had been coverage at the time of the accident, relief from forfeiture would have been afforded to the respondent for the two-week delay in filing the monthly report, as there was no bad faith or prejudice resulting from that delay, and the respondent advised the appellant as soon as it learned about the accident.

3. No. If coverage were otherwise provided, the Court would have seen no reason to deny the respondent coverage based on its failure to disclose the partial settlement agreement with its broker. The Court found that there was no change in the litigation landscape in this case, and no evidence of unfairness, prejudice or oppression occasioned to the appellant by the decision not to disclose the settlement. Moreover, the respondent was not a party to the underlying action and had actively refused to participate in it, so the appellant had no legal right to be informed of the partial settlement.

Patterson v. Eastern Residential Services Inc., 2026 ONCA 543

[Paciocco, Thorburn and George JJ.A.]

Counsel:

R. Colautti, for the appellant, J.J.S.P.

C. Jenkins, for the respondent (COA-25-CV-1096), Eastern Residential Services Inc.

S. Handler, for the respondent (COA-25-CV-1096), Simcoe Muskoka Child Youth and Family Services, Simcoe Muskoka Family Connexions

J. DiFederico and D. Forster, for the respondent (COA-25-CV-1225), Children’s Aid Society of Nipissing & Parry Sound

facts:

Eastern Residential Services Inc. (“ERS”) provides residential foster care services to Children’s Aid Societies and is licensed by the Ministry of Children, Community and Social Services. The appellant worked for ERS as an accredited social worker since 2009 and became a foster parent in 2019.

B.M. a child with intellectual disabilities and developmental delays, was in the custody of Simcoe Muskoka Family Connexions (“SMFC”). With SMFC’s consent, ERS placed B.M. in a foster home operated by the appellant.

J.P. and E.P. applied to adopt B.M. The adoptive parents later reported that B.M. had disclosed that the appellant, J.J.S.P., sexually assaulted him.

SMFC initiated the ensuing investigation, and the Children’s Aid Society of Nipissing & Parry Sound (“CASNPS”) interviewed B.M. and reported its findings to ERS. During the investigation, the appellant was prohibited from working one-on-one with children or being in his foster home when children were present.

After the allegations were verified, SMFC and ERS removed all children from the appellant’s foster home, and ERS terminated his employment. His foster home was permanently closed. The appellant was never criminally charged. He sued in negligence, malicious performance of a statutory duty, breach of privacy, breach of s. 7 of the Charter, intimidation, breach of contract, inducing breach of contract, civil conspiracy, intentional infliction of nervous shock, intrusion upon seclusion, breach of confidence, wrongful falsehood and misfeasance in public office.

The motion judge struck all causes of action without leave to amend, except for the breach of contract claim against ERS, which she struck with leave to amend.

issues:

Does the appellant have a cause of action for a Charter remedy based on alleged breaches of his ss. 7 and 12 Charter rights?
Was B. wrongly decided insofar as it holds that no duty of care is owed to a parent at the investigative stage of a sexual assault complaint?
Does the appellant have a viable claim for misfeasance in public office?

holding:

Appeal allowed in part.

reasoning:

The standard of review on an appeal of a r. 21 motion under the Rules of Civil Procedure is correctness.

1. No. The appellant has no cause of action for a Charter remedy based on alleged breaches of his ss. 7 and 12 Charter rights. The appellant’s pleadings did not disclose viable claims under either ss. 7 or 12 of the Charter.

The appellant submitted that the motion judge misconceived the nature of a s. 24 Charter remedy. He argued that such a remedy is a public law response to a constitutional breach, rather than a private law cause of action, such as duty of care. In his statements of claim, the appellant pleaded that the Societies are state actors for the purposes of ss. 7 and 24 of the Charter. He submitted the motion judge erred by characterizing his Charter claim as a negligence action and by concluding that there is no constitutional right to an investigation conducted in accordance with mandatory statutory and regulatory standards. The Court was not persuaded by these submissions.

The appellant further alleged that the Societies acted unreasonably, violated the principles of fundamental justice and infringed his s. 7 Charter right to security of the person. These allegations were advanced in support of both the Charter and negligence claims. However, neither statement of claim identifies the specific conduct said to breach s. 7, explains how that conduct amounts to a constitutional breach, or distinguishes the Charter claim from the negligence claim. As such, the Court found these claims sound in negligence.

In the Court’s view, the appellant’s position as a foster parent was not equivalent to that of a parent. Parental status is central to personal identity, and the state-imposed loss of that status may carry serious stigma and emotional consequences. The appellant was not in that position. B.M. had already been removed from the appellant’s care when the investigation began. That removal did not engage the appellant’s identity, companionship interests or social standing in the same way as the loss of parental status. A foster home does not involve the same degree of intimacy and privacy as a parental home.

Section 12 of the Charter protects against state conduct that inflicts physical or mental pain and suffering through degrading or dehumanizing treatment or punishment, thereby safeguarding human dignity and the inherent worth of the individual. The appellant further argued that he was subject to cruel and unusual treatment because he was punished for crimes he did not commit. The Court found this argument to fail. The appellant’s s. 12 right was not engaged because neither the Societies’ investigation nor its consequences amounted to treatment or punishment.

No. J.B. was not wrongly decided insofar as it held that no duty of care is owed to a parent at the investigative stage of a sexual assault complaint. The appellant submitted that any conflict in the Societies’ duties ended once B.M. was removed from his care. The Societies’ duty of care was owed to children who are, or may be, in the appellant’s care and whose safety may therefore be at risk. The duty of care was not owed to him. The law is settled: the appellant cannot maintain a negligence claim against the Societies. It was therefore plain and obvious that this cause of action will fail.

Yes. The appellant may have a viable claim for misfeasance in public office against Children’s Aid Society of Nipissing & Parry Sound, but not Simcoe Muskoka Family Connexions.

Misfeasance in public office requires that the public officer have subjective knowledge, or be reckless or willfully blind to the fact, and that their conduct is unlawful and likely to harm the plaintiff. The tort also requires particularized allegations of bad faith or malice.

Where misfeasance in public office is alleged, the defendant, here, the Societies, must be able to understand precisely what conduct is said to be wrongful. On a r. 21 motion, a bare allegation of malice is insufficient.

The appellant did not meet the pleading requirements against SMFC for misfeasance in public office. Accordingly, the motion judge did not err in concluding that the appellant failed to plead a viable claim.

The Court agreed that the appellant’s statement of claim alone did not adequately plead misfeasance in public office. The statement of claim alleged bad faith in general terms and did not plead material facts particularizing dishonesty, bad faith or malice by CASNPS. Nor does it explain how CASNPS knowingly or recklessly abused its statutory powers for an unlawful purpose.

However, the information set out in the response to the demand for particulars could support inferences of unlawfulness and malice. The response to the demand for particulars differed from the broad allegations against SMFC. It specifically identified a CASNPS worker and alleged that she displayed hostility towards him during the adoption process. The appellant also alleged that the adoptive parents harboured animus and made several complaints against him. Further, the appellant alleged that the CASNPS worker was also hostile and joined with the adoptive parents in complaining to his employer. This supported an inference of bad faith and bias by that worker.

Read together, the statement of claim and the material facts in the response to the demand for particulars distinguished the claim against CASNPS from the claim against SMFC. The particulars concerning CASNPS’s conduct, including the role of its workers in the interviews and the adoption process, may support the necessary inferences at the pleadings stage. Accordingly, the Court found the claim against CASNPS should not have been struck as it was not plain and obvious that the appellant’s claim would fail.

2615333 Ontario Inc. v. Central Park Ajax Developments Phase 1 Inc., 2026 ONCA 544

[Roberts, Favreau and Rahman JJ.A.]

Counsel:

C. Aitken, for the appellant

A. Soutter and R. Chakrabarti, for the respondent TBD Restructuring Limited

No one appearing for the respondents Central Park Ajax Developments Phase 1 Inc., 9654488 Canada Inc., 9654461 Canada Inc., 9654372 Canada Inc., 9617680 Canada Inc. and 9654445 Canada Inc.

facts:

The appellant, 2615333 Ontario Inc. (“261”), held a mortgage over certain properties referred to as the Harwood Properties. The Harwood Properties were subject to a Development Agreement between the Corporation of the Town of Ajax (the “Town”) and Lemine Real Estate Consulting Inc. (“Lemine”), a real estate developer affiliated with the respondents. The Development Agreement provided that if Lemine defaulted, the Town could purchase certain of the lands.

261 brought an application to appoint TBD Restructuring Limited as receiver (the “Receiver”), which was granted on April 15, 2021. The receivership order gave the Receiver the power to market the properties, subject to terms requiring consultation with the Town and requiring any purchaser to enter into a development agreement with the Town.

The Receiver determined that the existing Development Agreement created too much uncertainty to market the properties. After extensive efforts, the Receiver negotiated a New Development Agreement with the Town, which still required the purchaser to build in accordance with existing plans and included timelines and repurchase rights in favour of the Town. A sales procedure was approved by the court on June 1, 2023. Two bids were received: the first bidder, 1000612843 Ontario Inc. (the “First Bidder”), failed to pay the deposit and was disqualified, and the second bidder requested an unacceptable $ 3 million abatement.

261 brought a motion to vary the receivership order to remove the Town’s rights under the Development Agreement, but the motion was dismissed on March 11, 2024. The Receiver’s further negotiations with the Town to modify the New Development Agreement were unsuccessful. The Town then made a proposal to purchase the Harwood Properties. The Receiver also entered into an agreement of purchase and sale with the First Bidder, who agreed to enter into the New Development Agreement. However, the First Bidder failed to close.

The Receiver then brought a motion for approval of the Town’s offer. 261 opposed the sale, arguing that the Receiver’s efforts to obtain the best price were insufficient and that the Town was misusing its powers under the receivership order, including by relying on confidential information from the second bidder to set its offer price. The motion judge applied the principles from Royal Bank of Canada v. Soundair Corp. and approved the sale, finding that the Receiver had robustly marketed the properties, that there were no successful bids, and that the Receiver reasonably exercised its judgment in not pursuing two further offers: one that was highly conditional and sought to exclude the New Development Agreement, and one from the First Bidder who had already failed to pay a deposit and failed to close. The motion judge also found that an appraisal tendered by 261 did not establish that the Receiver acted improvidently, as there was no evidence a new sales process would produce a better offer.

issues:

Did 261 have an automatic right of appeal under section 193(c) of the BIA, or was leave to appeal required under section 193(e)?
Should leave to appeal be granted under s. 193(e) of the BIA?

holding:

Appeal dismissed.

reasoning:

Leave to appeal was required. The right of appeal under section 193(c) of the BIA was to be interpreted narrowly. In addition to meeting the $ 10,000 value threshold, to qualify for an appeal as of right, an appellant had to show that (1) the order was more than procedural in nature; (2) the order involved the value of the debtor’s property; (3) and the order resulted in a loss to the appellant. 261 had not demonstrated that it suffered a loss exceeding $ 10,000. 261’s argument that the loss was evident from the restrictions in the New Development Agreement was misplaced because 261 could not challenge the validity or terms of the New Development Agreement on this appeal. Such an argument was a collateral attack on the receivership order and the order dismissing 261’s prior motion to vary, neither of which was appealed.

The motion judge had also rejected 261’s argument that the Town misused confidential pricing information, finding no evidence that the Town received information it was not entitled to receive. The two offers the Receiver chose not to pursue did not amount to evidence that a better price could have been obtained. One was highly conditional and required excluding the New Development Agreement, and the other was a commitment letter from the first bidder who had already failed to pay a deposit and failed to close. 261’s appraisal also did not support its position, as the Receiver’s previous marketing efforts had been unsuccessful despite the appraised value.

No. The test for leave under section 193(e) of the BIA, as set out in Business Development Bank of Canada v. Pine Tree Resorts Inc., required the court to look at 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 not unduly hinder the progress of the bankruptcy/insolvency proceedings. The proposed appeal did not meet any of these criteria. The issues raised by 261 were essentially factual and did not raise issues of broader importance to bankruptcy and insolvency law. While the Town’s dual role was unusual, these circumstances were idiosyncratic and arose principally from previous orders made by the Superior Court, not from the motion judge’s order approving the sale.

The appeal was not prima facie meritorious because 261’s arguments focused on previous orders it did not appeal, amounting to a collateral attack on those orders. The motion judge found that the Receiver’s efforts and business judgment were sound, which were findings owed deference.

Finally, allowing the appeal would unduly hinder the progress of the bankruptcy, as there was no evidence that a new marketing process would produce a better price, and further delay would prejudice non-secured creditors as interest accrued on 261’s mortgages.

Senos v. Senos, 2026 ONCA 552

[Sossin, Monahan, Osborne, JJ.A.]

Counsel:

S. Kirby, for the appellant

B.S., acting in person

facts:

The parties were engaged in highly contentious family law litigation. The central issue throughout the litigation was the appellant’s allegation that the respondent hid his income and did not disclose his ownership interests in various companies. The trial judge rejected those allegations, finding that the appellant was neither credible nor reliable. Moreover, she found that the appellant repeatedly misled the court, which resulted in the issuance of court orders against the respondent that were unjust and amounted to a miscarriage of justice.

Conversely, the trial judge accepted the respondent’s evidence regarding his income and determined retroactive and prospective support on that basis. Citing the appellant’s conduct throughout the litigation, she also “cancelled” three prior costs orders made against the respondent and imposed a common law peace bond on the appellant. Finally, although the trial judge deferred the final determination of equalization, she held that the appellant was liable for 50% of the tax debt of Seren Search Inc. (“Seren”), a corporation jointly owned by the parties. She ordered that liability be paid out of the appellant’s share of the proceeds of sale of the matrimonial home.

issues:

1. Did the trial judge err by making a final spousal support order before determining the equalization issues and on the basis of an erroneous and overly simplified calculation of the respondent’s income?

2. Did the trial judge err by cancelling the Impugned Cost Orders?

3. Did the trial judge err by holding the appellant liable for 50% of the tax debts of Seren and ordering the appellant to discharge that liability through her share of the proceeds of sale of the matrimonial home?

4. Did the trial judge err by imposing an overly broad and lengthy peace bond on the appellant without prior notice?

holding:

Appeal allowed in part.

reasoning:

1. No, the trial judge did not err by making a final spousal support order before determining the equalization issues and on the basis of an erroneous and overly simplified calculation of the respondent’s income. The general rule is that equalization should be determined prior to making a final spousal support order. But in the particular circumstances of this case, it would be inconsistent with the primary objective of the Family Law Rules, namely, to deal with cases justly, to revisit the spousal support order at this stage of the litigation. Reopening the issue of spousal support at this stage would result in further delay and increased costs in a proceeding that has already gone on for far too long and at undue expense to both the parties and to the court. This was particularly the case because the parties have very limited assets and any equalization payment that might be ordered was likely to be quite modest. It was very unlikely that the eventual equalization payment will materially change the total means of the parties, which is what is relevant to determining the amount of spousal support.

2. Yes, the trial judge erred in cancelling the Impugned Costs Orders. The trial judge cancelled the Impugned Costs Orders on the basis that had the appellant been forthcoming with the court, those costs orders would not have been made. The trial judge erred in failing to indicate her legal basis for the cancellation. Further, the appellant did not suggest any basis, apart from rule 25(19)(a) of the Family Law Rules, upon which the cancellation of the Impugned Costs Orders could be justified. Since the trial judge did not rely on rule 25(19)(a), the Court held that the cancellation must be set aside.

3. Yes, the trial judge erred in holding the appellant personally liable for 50% of the tax debt of Seren. The trial judge’s only explanation provided for this order was that the appellant was the “joint owner of the company.” This reasoning was incorrect because a bedrock principle of corporate law is that a corporation is a separate entity from its shareholders and a shareholder is not generally liable for the debts of the corporation merely by virtue of their ownership of shares of the corporation. While there are various exceptions to this general rule, none applied in this case. The Court therefore set aside this allocation of liability.

4. Yes, the trial judge erred in imposing the peace bond. The respondent sought a restraining order against the appellant pursuant to section 46 of the Family Law Act. However, rather than granting the relief sought, the trial judge proceeded on her own initiative to invoke the court’s common law jurisdiction to prevent a breach of the peace by requiring the appellant to enter into a peace bond that would remain in effect for a period of ten years.

The procedure followed in this case fell significantly short of what was required. Namely, the appellant was not provided with proper notice, the respondent did not seek this relief in his pleadings or in his submissions to the court, and the matter was not discussed during the course of the eight-day trial and was raised by the trial judge only after the parties had made their closing submissions. Then, instead of adjourning the proceedings to provide the appellant with a meaningful opportunity to consult counsel and consider whether she wished to adduce evidence and prepare submissions, the trial judge issued the order orally immediately upon the conclusion of the hearing. Furthermore, even if the appellant had been afforded appropriate procedural protections, the terms of the order were extremely broad and unduly vague. The Court therefore set aside the peace bond.

Redback Tours Inc. v. Canadian Equipment Finance & Leasing Inc., 2026 ONCA 555

[Trotter, Paciocco and Wilson JJ.A.]

Counsel:

I. Klaiman and R. Zolfaghari for the appellants

R. B. Bissell and G. Schachter, for the respondents

facts:

The appellant, Redback Tours Inc. (“Redback”), is a bus charter business whose directors, P.F. and A.F., are also appellants. On January 22, 2024, the respondent, Canadian Equipment Finance & Leasing Inc. (“CEFL”), loaned Redback $ 559,250 to finance the purchase of a bus on a five-year term at 15.25% annual interest. P.F. and A.F. personally guaranteed the loan, which was secured by a $ 25,000 security deposit, a security interest in the bus, and a collateral mortgage on their residence. Redback was obligated to notify CEFL and remit the proceeds within 10 days in the event of a sale of the bus. Redback defaulted on the loan. On August 22, 2024, CEFL exercised an acceleration clause and demanded payment of $ 672,417.20, representing all remaining payments including unaccrued, future interest. CEFL attempted to take possession of the bus but could not locate it. After a Canada-wide vehicle database search, CEFL discovered that Redback had secretly sold the bus to a third party in Alberta for $ 500,000 in contravention of the loan agreement. After receiving pressure from the third-party purchaser, Redback eventually remitted the sale proceeds on September 17, 2024. This satisfied the outstanding principal and accrued interest but did not cover future interest. The parties brought competing applications to determine whether the appellants were obligated to pay future interest, as well as certain fees and enforcement costs.

issues:

Did the application judge err in interpreting the agreement as permitting the acceleration of future interest?
Did the application judge err in determining that s. 17 of the Mortgages Act is inapplicable?
Did the application judge err in ordering the appellants to pay CEFL’s enforcement costs and the WiseCap Broker Fee?

holding:

Appeal dismissed.

reasoning:

No. The acceleration clause permitted CEFL to declare “all or any part of Indebtedness” immediately due and payable upon default. “Indebtedness” was a defined term in the contract meaning “any and all obligations, indebtedness and liability of the Borrower to the Lender (including interest thereon) present or future, direct or indirect, absolute or contingent, matured or not.” This language plainly includes both principal and future interest. Nothing in the rest of the agreement contradicted or overrode this plain language.

2. No. Although the Court disagreed with the application judge’s finding that the Mortgages Act does not apply to a collateral mortgage, holding instead that the Act’s broad definition of “mortgage” encompasses both collateral and conventional mortgages, the appeal was nonetheless dismissed on this ground. Section 17 codifies an equitable rule permitting redemption of a mortgage after a post-maturity default in the payment of principal. At common law, a borrower had no right to redeem prior to the maturity date unless the lender had demanded payment. Equity intervened to relieve borrowers from the strict terms of the agreement but imposed a corresponding obligation of six months’ notice or interest in lieu thereof. Section 17 codifies this rule while reducing the obligation to three months.

The Court held that section 17 does not apply to defaults occurring during the term of a mortgage, as was the case here. If it applied pre-maturity, it would render the five-year timeline in section 18 meaningless, as a borrower could abridge that timeline simply by going into default. It would also allow borrowers to convert closed mortgages into open-ended ones by their own act of default. The Court emphasized that its decision was limited solely to section 17 and expressed no opinion on whether any other common law, equitable or statutory provision might reduce the obligation to pay future interest.

3. No. The application judge’s finding that CEFL’s enforcement costs of $ 32,701.96 were reasonable is owed deference, particularly given the “wild goose chase” CEFL was sent on by the appellants in seeking to enforce the agreement. The WiseCap Broker Fee of $ 12,571.25 fell within the ambit of section 12(g) of the agreement, which entitled CEFL to recover all costs, charges, and expenses reasonably incurred in preparing, administering or enforcing the agreement.

Bank of Montreal v. Saidani, 2026 ONCA 550

[Sossin, Monahan and Osborne JJ.A.]

Counsel:

Z. Levy, for the appellant

J. S. Quigley and J. Bogacki, for the respondent

facts:

The respondent, BMO, sought to enforce a guarantee given by the appellant, Mr. H, on an overdraft credit facility on behalf of Sirius Power Corp (“Sirius”). Mr. S was Sirius’ sole director and shareholder. Mr. H provided independent contractor services to Sirius and held himself out to BMO as Vice President and Chief Operating Officer of Sirius. At a meeting on November 12, 2021, BMO’s loan officer, Mr. C, informed the parties that BMO would require a co-signor for the credit facilities. Mr. H claimed he agreed to be the guarantor only if: (1) he was granted full signing authority and control over the overdraft line of credit, including pre-approval for withdrawals exceeding $ 5,000; and (2) he was immediately given access to the Sirius bank account through BMO’s online account management system.

The motion judge found that Mr. C agreed to make Mr. H a co-signor and to provide him with online access but did not find that BMO agreed to deny credit facilities until these steps were taken. Mr. H signed both the loan agreement and the guarantee, which were standard form documents. He also provided a Certificate of Independent Legal Advice. Mr. H’s online access was not finalized until mid to late-December 2021. By the time Mr. H accessed the account, Sirius had overdrawn its account beyond the $ 350,000 limit. BMO brought a summary judgment motion, and the motion judge ordered a mini-trial due to conflicting affidavit evidence.

issues:

Did the motion judge err in finding that the assurances given to Mr. H did not constitute conditions precedent to the effectiveness and enforcement of the guarantee?
Did the motion judge err in rejecting Mr. H’s claims based on misrepresentation?
Did the motion judge err in rejecting Mr. H’s negligence claim based on the absence of a duty of care between the bank and Mr. H?

holding:

Appeal dismissed.

reasoning:

No. The motion judge’s finding was a question of mixed fact and law entitled to deference. The record supported the finding: there was no written document setting out any conditions to the guarantee; Mr. H signed the guarantee with independent legal advice; the guarantee included an “entire agreement” clause and a clause confirming there were no conditions other than those in the document; Mr. H was aware the credit facility was available before he had access and raised no complaint until March; and Mr. H received a $ 15,000 cheque drawn on the credit account with only Mr. S’s signature and raised no complaint. Mr. H’s argument that the assurances were incorporated through Schedule C of the guarantee was rejected, as that schedule referred only to documentation required by BMO, not to conditions Mr. H may have requested.

2. No. In light of the finding that BMO had not made a specific promise that credit line funds would not be released before the account protections were in place, and that such a promise would need to be included in the guarantee to bind the bank, there was no basis for claims in misrepresentation. The motion judge’s findings were open to her on the record and entitled to deference.

3. No. The negligence argument put to the motion judge was simply another version of the conditions precedent argument. Mr. H had not established that BMO agreed to deny Sirius access to the credit facilities until his requests were met. BMO therefore did not owe Mr. H a duty to ensure the credit facilities were not abused by Mr. S. Mr. H presented a different theory of negligence on appeal, that BMO was negligent due to the one-month delay in setting up online access and failure to monitor cheques, but this theory was not part of his pleadings and was not before the motion judge. The motion judge did not err by failing to address a theory of negligence which was not before her.

SHORT CIVIL DECISIONS

Nguyen v. Pham, 2026 ONCA 559

[Roberts]

Counsel:

T.T.L.P, acting in person

R. Masellis, for the responding party.

Keywords: Family Law, Civil Procedure, Orders, Costs, Appeals, Extension of Time

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COURT OF APPEAL SUMMARIES (JULY 27 – JULY 31)

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Table of Contents

Kentros v. Kentros, 2026 ONCA 546

Smith v. Nagy, 2026 ONCA 545

Pringle v. Zenova Group PLC, 2026 ONCA 549

Baig v. Thunder Bay Vacant Land Condominium Corporation No. 39, 2026 ONCA 547

Chand Morningside Plaza Inc. v. Healthy Lifestyle Medical Group Inc., 2026 ONCA 558

The Dominion of Canada General Insurance Company (Travelers Canada), 2026 ONCA 553

Patterson v. Eastern Residential Services Inc., 2026 ONCA 543

2615333 Ontario Inc. v. Central Park Ajax Developments Phase 1 Inc., 2026 ONCA 544

Senos v. Senos, 2026 ONCA 552

Redback Tours Inc. v. Canadian Equipment Finance & Leasing Inc., 2026 ONCA 555

Bank of Montreal v. Saidani, 2026 ONCA 550

Nguyen v. Pham, 2026 ONCA 559

CIVIL DECISIONS

Kentros v. Kentros, 2026 ONCA 546

Counsel:

facts:

issues:

holding:

reasoning:

Smith v. Nagy, 2026 ONCA 545

Counsel:

facts:

issues:

holding:

reasoning:

Pringle v. Zenova Group PLC, 2026 ONCA 549

Counsel:

facts:

issues:

holding:

reasoning:

Baig v. Thunder Bay Vacant Land Condominium Corporation No. 39, 2026 ONCA 547

Counsel:

facts:

issues:

holding:

reasoning:

Chand Morningside Plaza Inc. v. Healthy Lifestyle Medical Group Inc., 2026 ONCA 558

Counsel:

facts:

issues:

holding:

reasoning:

The Dominion of Canada General Insurance Company (Travelers Canada), 2026 ONCA 553

Counsel:

facts:

issues:

holding:

reasoning:

Patterson v. Eastern Residential Services Inc., 2026 ONCA 543

Counsel:

facts:

issues:

holding:

reasoning:

2615333 Ontario Inc. v. Central Park Ajax Developments Phase 1 Inc., 2026 ONCA 544

Counsel:

facts:

issues:

holding:

reasoning:

Senos v. Senos, 2026 ONCA 552

Counsel:

facts:

issues:

holding:

reasoning:

Redback Tours Inc. v. Canadian Equipment Finance & Leasing Inc., 2026 ONCA 555

Counsel:

facts:

issues:

holding:

reasoning:

Bank of Montreal v. Saidani, 2026 ONCA 550

Counsel:

facts:

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email