Good afternoon.
Following are our summaries of the civil decisions of the Court of
Appeal for Ontario for the week of April 21, 2025.
In Ontario (Health Insurance Plan) v. K.S., the Court dismissed the General Manager of OHIP's appeal from a Divisional Court decision confirming that a vaginoplasty without penectomy qualifies as an insured service. The Court held that the procedure was specifically listed in the Schedule of Benefits and thus was not excluded as experimental, rejecting the argument that a penectomy was required for coverage. It also found no error in the Divisional Court's refusal to consider a new ground of appeal that had not been raised before the Health Services Appeal and Review Board.
In Shirodkar v. Coinbase Global, Inc., the Court dismissed an appeal from an order staying a proposed class action alleging securities law violations against several Coinbase entities. The Court upheld the motion judge's findings that Ontario lacked jurisdiction over the foreign Coinbase respondents and that, while Ontario had jurisdiction over Coinbase Canada, Ireland was the more appropriate forum for hearing all of the claims, including against Coinbase Canada, which had no material involvement in the appellant's transactions.
In Integrated Team Solutions PCH Partnership v. Mitsubishi Heavy Industries, Ltd., the Court found that the motion judge did not err in holding that Ontario had jurisdiction to hear the matter, and that a forum selection clause in favour of the Commercial Court in France was not properly proven as forming part of the contract at issue. The forum selection clause therefore could not be relied upon to stay the action.
In Bank of Montreal v. Utility Engineers Corporation, the Court dismissed the appellant's appeal from a summary judgment ordering payment under a personal guarantee. The Court found no error in the motion judge's conclusion that there was no genuine issue requiring a trial, that the Bank owed no special duty to explain the guarantee, and that the appellant's non est factum defence lacked any air of reality. It also rejected claims of procedural unfairness relating to a proposed amended defence and the use of discovery transcripts.
In Lang-Newlands v. Newlands, the Court dealt with a motion concerning the automatic stay pending appeal under rule 63.01 of the Rules of Civil Procedure following the filing of an appeal in a family law matter. The moving party sought to characterize certain post-separation adjustments as spousal support to avoid the stay or, alternatively, to lift the stay or stay other payment obligations. The Court declined to recharacterize the payments but exercised its discretion to lift the stay on the amounts owed by the respondent, citing a serious risk of non-payment and applying a flexible approach appropriate in family law proceedings. The Court also ordered an expedited hearing of the appeal.
In Nutrition Guidance Services Inc. v. Schwartz, the Court upheld the motion judge's finding that a medical building was owned by two brothers and their wives as tenants in common and not in partnership. The Court did, however, reverse the motion judge's decision to dispense with the need for the Appellants' consent to the sale. The Appellants were 75% co-owners and there was no evidence that they would frustrate the sale or unreasonably withhold consent. The matter was referred to an associate judge to preside over a judicial sale, which would entitle both sides to make offers to purchase the property.
Wishing everyone an enjoyable weekend.
John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
CIVIL DECISIONS
Ontario (Health Insurance Plan) v K.S., 2025 ONCA 306
[Zarnett, Coroza and Favreau JJ.A.]
Counsel:
S. Z. Green, S. Gordian and A. Ralph, for the appellant
J. McIntyre and J. Szabo, for the respondent
G. Ko, F. Nasca and O. Evans, for the intervener Canadian Civil Liberties Association
D. Girlando and H. Rioseco, for the intervener Egale Canada
Keywords: Health Law, Ontario Health Insurance Plan, Coverage, Gender Affirming Surgery, Health Insurance Act, R.S.O. 1990, c. H.6, s. 4(2), s. 10, s. 11(1), s. 12(1), Schedule of Benefits — Physician Services under the Health Insurance Act (October 1, 2005), Regulation 552, s. 24(1), s. 28.4(2), s. 29(1), Canadian Charter of Rights and Freedoms, Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Ayr Farmers Mutual Insurance Company v. Wright, 2016 ONCA 789, Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, Flora v. Ontario Health Insurance Plan, 2008 ONCA 538, Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, R. v. Salifu, 2023 ONCA 590, Kaiman v. Graham, 2009 ONCA 77, R. v. J.F., 2022 SCC 17, Penner v. Niagara (Regional Police Services), 2013 SCC 19, Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), E. Coleman et al., (2022) Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, International Journal of Transgender Health, 23:sup1, S1-S259, DOI: 10.1080/26895269.2022.2100644 (World Professional Association for Transgendered Health Standards of Care)
Facts:
This appeal considered when a gender affirming surgery qualifies as an insured service that is to be paid for by the Ontario Health Insurance Plan ("OHIP").
Under the Health Insurance Act (the "Act"), OHIP insures the cost of insured services incurred by Ontario residents. The Act describes insured services in general terms, leaving specificity to the regulations passed under the Act. The regulations provide that specificity in part through a comprehensive Schedule of Benefits. The interpretation of the Schedule of Benefits, in the context of the regulations and the Act, was central to the determination of the appeal.
The Schedule of Benefits designates certain "sex-reassignment surgical procedures" as "insured services when prior authorization has been obtained", prescribes the mode of obtaining authorization, and states that prior authorization may be granted only for "specifically listed services". One of the services listed is a vaginoplasty, a type of gender affirming surgery.
The respondent, K.S., sought prior authorization and confirmation from the appellant, the General Manager of OHIP, that the cost of a vaginoplasty recommended by her health care team would be covered by OHIP. There was no dispute that she fulfilled all the requirements for authorization, including having assessments from appropriately trained health professionals recommending the surgery. The General Manager denied coverage contending that, because the vaginoplasty would not be accompanied by a penectomy, the proposed procedure was not one specifically listed in the Schedule of Benefits.
The Health Services Appeal and Review Board (the "Board") allowed K.S.'s appeal from the denial of coverage. In the Board's view, a vaginoplasty is an insured service because it is a specifically listed service in the Schedule of Benefits whether or not accompanied by a penectomy – another specifically listed procedure that sometimes, but not always, is performed along with a vaginoplasty. Moreover, in light of the determination that it is specifically listed, it did not matter whether the recommended technique was experimental.
The General Manager appealed the Board's decision to the Divisional Court, contending that the Board erred in its determinations and raising an additional ground not raised before the Board. The Divisional Court dismissed the appeal and refused to entertain the new ground of appeal.
Issues:
- Did the Divisional Court err in its holding that the vaginoplasty recommended for K.S. was specifically listed in the Schedule of Benefits?
- Did the Divisional Court err by failing to find that penile preservation vaginoplasty is excluded because it is experimental?
- Did the Divisional Court err by declining to consider the new issue raised before it?
Holding:
Appeal dismissed.
Reasoning:
1. Did the Divisional Court err in its holding that the vaginoplasty recommended for K.S. was specifically listed in the Schedule of Benefits?
No. The Court held that the General Manager's argument, that the vaginoplasty recommended for K.S. was not a specifically listed insured service because it did not include a penectomy, was not supportable. The Court noted that the Schedule of Benefits clearly listed "vaginoplasty" as a sex-reassignment surgical procedure eligible for coverage with prior authorization, and that there was no basis to interpret it as requiring a concurrent penectomy. The Court emphasized that both vaginoplasty and penectomy appeared separately in the list, and treating vaginoplasty as dependent on another procedure would undermine the plain language of the regulation.
The Court further noted that the existence of different surgical techniques, including penile preserving vaginoplasty, did not affect the classification of the procedure as a vaginoplasty within the meaning of the Schedule. The Court highlighted that the World Professional Association for Transgendered Health ("WPATH") Standards of Care, which are incorporated by reference in the authorization criteria, recognize vaginoplasty with or without penectomy as a valid option for non-binary individuals. The Court rejected the General Manager's reliance on the procedure's potentially experimental nature, explaining that under section 24(1) of the regulations, once a procedure is specifically listed in the Schedule of Benefits, it is insured regardless of whether it is considered experimental. The Court concluded that the Board and Divisional Court were correct in finding the recommended procedure to be a specifically listed, insured service, and it rejected this ground of appeal.
2. Did the Divisional Court err by failing to find that penile preservation vaginoplasty is excluded because it is experimental?
No. The Court held that there was no error in the Divisional Court's conclusion that a penile preserving vaginoplasty, or vaginoplasty without a penectomy, was specifically listed as an insured service under the Schedule of Benefits. Accordingly, the Court found it unnecessary to address whether the lower tribunals erred by not determining if the procedure was considered experimental in Ontario. The Court noted that the experimental exclusion in section 24(1) of the regulations was not engaged, as it only applies to services not specifically listed—whereas the procedure sought by K.S. was expressly included as an insured service.
3. Did the Divisional Court err by declining to consider the new issue raised before it?
No. The Court held that the Divisional Court did not err in refusing to consider a new issue raised for the first time on appeal by the General Manager, namely that the proposed surgery was not insured under section 28.4(2) of the regulations because it was to be performed outside Canada and was not generally accepted in Ontario for someone in K.S.'s medical circumstances. The General Manager framed this as a jurisdictional issue, arguing that the Divisional Court was required to address it regardless of whether it had been raised before the Board. The Court rejected this framing, emphasizing that appeals from administrative tribunals are subject to appellate standards of review and are not de novo hearings. The Court noted that the Divisional Court was entitled to control its own process and to limit its review to the issues properly raised and decided below.
The Court noted that the General Manager had the opportunity to raise section 28.4(2) before the Board but failed to do so, provided no sufficient explanation for that failure, and did not establish that the evidentiary record was adequately developed to permit proper appellate consideration. The Court held that the General Manager had conflated section 28.4(2) with the experimental treatment exclusion under section 24(1), an approach already rejected by the Divisional Court. As a result, the Court affirmed the Divisional Court's discretion and rejected this ground of appeal.
Shirodkar v Coinbase Global, Inc., 2025 ONCA 298
[Huscroft, Monahan and Gomery JJ.A.]
Counsel:
P. Jervis, G. Nayerahmadi and D. M. Worndl, for the appellant
R. W. Staley, C. M. Woodin, D. Fenton and M. Torgov, for the respondents
Keywords: Securities, Contracts, Forum Selection Clauses, Civil Procedure, Class Proceedings, Jurisdiction, Forum Non Conveniens, Securities Act, R.S.O. 1990, c. S.5, ss. 71(1), 133, Quebec Securities Act, C.Q.L.R., c. V-1.1, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736, Airia Brands Inc. v. Air Canada, 2017 ONCA 792, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Momentous Corporation v. Canadian American Association of Professional Baseball Ltd., 2010 ONCA 722, atrax International Inc. v. Hägele Landtechnik GmbH, 2016 ONCA 771, Bank of Nevis International Limited v. Kucher, 2024 ONCA 240, Forbes Energy Group Inc. v. Parsian Energy Rad Gas, 2019 ONCA 372, Yip v. HSBC Holdings plc, 2017 ONSC 5332, Sharp v. Autorité des marchés financiers, 2023 SCC 29, Sakab Saudi Holding Company v. Jabri, 2022 ONCA 496, Stubbs v. ATS International BV, 2010 ONCA 879, Sinclair v. Amex Canada Inc., 2023 ONCA 142, Douez v. Facebook, Inc., 2017 SCC 33, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, Kaynes v. BP, p.l.c., 2014 ONCA 580, Lochan v. Binance Holdings Limited, 2023 ONSC 6714
Facts:
The appellant, S.S., used the Coinbase online trading platform to buy and sell cryptocurrency assets. He entered into multiple user agreements with different Coinbase entities, including while residing in France and later in Ontario. His transactions were primarily conducted through Coinbase Europe Limited under agreements that selected Irish or English law and courts. Coinbase Canada Inc. became active in Ontario in late 2020, and in May 2023, S.S. accepted a new Coinbase Canada user agreement that included a non-exclusive forum selection clause in favour of Ontario courts.
The appellant commenced a class action against several Coinbase entities, alleging that they violated Canadian securities laws by failing to comply with registration and disclosure obligations when offering crypto-related products to users across Canada. He proposed to certify the claim on behalf of everyone in Canada who entered into crypto rights contracts or transacted in tokens with the respondents between October 8, 2019, and the certification date.
The respondents moved to dismiss or stay the action on jurisdictional grounds. The motion judge granted their motion. She found that the Superior Court of Justice in Ontario had no jurisdiction over the claims asserted against the non-Canadian respondents, and that the action against them should be dismissed. Although the court has jurisdiction over Coinbase Canada, the motion judge concluded that Ireland was a preferable forum for the adjudication of the appellant's claims. She accordingly stayed the remaining action against Coinbase Canada.
The appellant appealed, arguing that the motion judge erred in her analysis of both jurisdiction simpliciter and forum non conveniens.
Issues:
- Did the motion judge err in interpreting the Canadian User Agreement?
- Did the motion judge err in applying the Van Breda "real and substantial connection" test?
- Did the motion judge err in finding that Ontario is forum non conveniens and that Ireland is the preferred forum to adjudicate the action?
Holding:
Appeal dismissed.
Reasoning:
1. No.
The Court upheld the motion judge's finding that the Canadian User Agreement did not confer jurisdiction over the foreign Coinbase entities. The appellant argued that by accepting the Coinbase Canada User Agreement—containing a non-exclusive forum clause referencing disputes "between us"—all Coinbase entities had effectively consented to Ontario jurisdiction. The Court rejected this, noting the agreement clearly defined "us" as only Coinbase Canada and the user, and did not refer to the broader "Coinbase Group" in the forum clause. Accordingly, it applied only to disputes with Coinbase Canada.
The Court also rejected the appellant's argument that the interconnected operations of the Coinbase entities extended jurisdiction, confirming that corporate affiliation alone does not bind non-signatories to a contract. Case law relied on by the appellant involved exclusive forum clauses and was inapplicable here. Lastly, the Court found no merit in the claim that earlier user agreements implied jurisdiction based on consumer protections. The Court found no legal error and declined to extend Ontario jurisdiction to the foreign Coinbase respondents.
2. No.
The Court held that the motion judge did not err in declining to assume jurisdiction over the non-Canadian Coinbase respondents under the Van Breda "real and substantial connection" test. The appellant argued that the foreign entities carried on business in Ontario and committed a statutory tort there. However, the motion judge found that all material aspects of the appellant's transactions—including contract formation, execution, and fulfillment—occurred outside Ontario, primarily through Coinbase Europe. The only connection to Ontario was that the appellant accessed the platform from his home in the province, which the court considered a weak presumptive connecting factor insufficient to establish jurisdiction.
The Court rejected the appellant's argument that foreign registration efforts or Coinbase's popularity in Canada established a substantial connection. It also found no merit in the claim that the foreign respondents' operations were so intertwined with Coinbase Canada as to justify treating them as a single entity. Unlike in cases involving conspiracy or fraud under a single controlling mind, each Coinbase entity had distinct roles, and there was no basis to bypass a separate jurisdictional analysis for each one. The Court concluded the presumption of jurisdiction had been rebutted and declined to interfere with the motion judge's findings.
3. No.
The Court upheld the motion judge's decision to stay the action against Coinbase Canada on the basis that Ontario was forum non conveniens. Although the Ontario court had jurisdiction over Coinbase Canada, the motion judge found that the company had no involvement in the transactions at issue, all of which were conducted through Coinbase Europe. Proceeding only against Coinbase Canada in Ontario risked inefficient parallel proceedings and conflicting outcomes. The judge accepted expert evidence that Irish courts were well equipped to adjudicate the appellant's claims and would assume jurisdiction over the relevant foreign entities.
The appellant argued that Ontario was the proper forum because his claims were based on Ontario securities law. However, the Court held that alleging a statutory breach did not entitle a plaintiff to litigate in Ontario. The judge also properly declined to consider the hypothetical claims of future class members, as there was no evidence that any users transacted through Coinbase Canada before 2023. Concerns about access to justice, including the lack of a class action regime in Ireland, were acknowledged but found to be outweighed by the principle of comity. The Court also distinguished this case from Binance, where an oppressive arbitration clause would have denied relief. The motion judge's forum non conveniens analysis contained no legal or factual error warranting appellate intervention.
Integrated Team Solutions PCH Partnership v Mitsubishi Heavy Industries, Ltd., 2025 ONCA 297
[Tulloch C.J.O., Pepall and Pomerance JJ.A.]
Counsel:
T.G. Conway, J. Mouris and M. Elshafie, for the appellants
J. C. Teal and K. Campbell, for the respondents, Integrated Team Solutions PCH Partnership, LED (ITS) PCH Inc., and LED (ITS) PCH Limited Partnership
N.J. Authier, for the respondent, Mulvey & Banani International Inc.
K. Pereira and L.E. Peleikis, for the respondent, Total Power Limited
A. Young, for the respondent, Univex (Ontario) Limited
S. O'Connor, for the respondent, Mitsubishi Heavy Industries, Ltd.
Jason P. Mangano, for the respondent, EllisDon Design Build Inc.
Keywords: Torts, Negligence, Contracts, Forum Selection Clauses, Civil Procedure, Jurisdiction, Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736, Savanta v. Hilditch, 2022 ONCA 890, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ontario (Attorney General) v. Rothmans Inc., 2013 ONCA 353, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, Abaxx Technologies Inc. v. Pasig and Hudson Private Limited, 2024 ONCA 164, Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224, 2249659 Ontario Ltd. v. Sparkasse Siegen, 2013 ONCA 354, Sinclair v. Amex Canada Inc., 2023 ONCA 142, Douez v. Facebook, Inc., 2017 SCC 33, Del Giudice v. Thompson, 2024 ONCA 70, Goudie v. Ottawa (City), 2003 SCC 14, Leufkens v. Alba Tours International Inc. (2001), 53 O.R. (3d) 112 (S.C.), Hunks v. Hunks, 2017 ONCA 247, Aldo Group Inc. v. Moneris Solutions Corporation, 2013 ONCA 725, Kaiman v. Graham, 2009 ONCA 77
Facts:
The dispute arose from the allegedly catastrophic failure of two emergency generators at Providence Care Hospital in Kingston, Ontario. The respondent plaintiffs, Integrated Team Solutions PCH Partnership, LED (ITS) PCH Inc. and LED (ITS) PCH Limited Partnership, were responsible for designing, building, financing, and maintaining the hospital. They brought an action seeking damages from the appellants who allegedly supplied the generators and various other parties involved in the design, manufacture, supply, installation, testing, commissioning, and maintenance of the generators.
The appellants, S.D.M.O. Industries carrying on business as Kohler-SDMO ("S.D.M.O.") and Kohler Co. ("Kohler"), are both foreign corporations and brought a motion to challenge the Ontario court's jurisdiction. As well, they sought to enforce an exclusive forum selection clause in favour of a French commercial court, which they claimed formed part of S.D.M.O.'s contract to sell the generators to the respondent co-defendants G.A.L. Power Systems Ottawa Ltd. and G.A.L. Power Systems (1992) Ltd. (collectively, "GAL Power").
The motion judge dismissed the motion, holding that Ontario had jurisdiction over the claims, that no clear and enforceable forum selection clause applied, and that the appellants failed to establish that another jurisdiction was clearly more appropriate. The appellants appealed this ruling on jurisdiction and on the forum selection clause, but did not challenge the decision that Ontario was the most appropriate forum.
Issues:
- Did the motion judge err in holding that Ontario had jurisdiction over the claims against the appellants?
- Should the court have stayed the respondents' claims based on the forum selection clause?
Holding:
Appeal dismissed.
Reasoning:
Standard of Review
The Court held that absent an extricable error of law, the motion judge's application of the test for jurisdiction and interpretation of the forum selection clause was reviewable for palpable and overriding error.
1. No.
The Court found that the motion judge did not err in holding that Ontario had jurisdiction over the claims against the appellants. The motion judge found that he had jurisdiction under the third factor of the Van Breda test because the alleged torts occurred in Ontario. He determined that the claims were primarily grounded in tort, not in contract, and that they were sufficiently pleaded and not merely conclusory. The appellants argued that the motion judge erred in law by applying an incorrect and unduly low threshold to establish jurisdiction. The Court agreed with the motion judge and found that the respondent plaintiffs pleaded all elements of negligence and sufficient facts to assess the claims' connection to Ontario. In addition, the appellants argued that the motion judge erred by failing to consider the jurisdictional question from Kohler's perspective. The Court found that the respondent established jurisdiction against Kohler as well by pleading that Kohler "carried on business" and acted "collectively" with S.D.M.O.
2. No.
The Court found that the motion judge should not have stayed the claim based on the forum selection clause. The appellants relied on a clause in the General Terms and Conditions that they asserted formed part of S.D.M.O.'s contract with GAL Power that assigned exclusive jurisdiction to a French commercial court. The Court agreed with the motion judge and found that the appellants did not meet their burden to prove that a valid, clear and enforceable forum selection clause applied. As the motion judge determined, the General Terms and Conditions were neither incorporated by reference into the pleadings nor properly introduced into evidence by the appellants. The statement of claim, although it briefly mentioned the S.D.M.O.-GAL Power contract, did not reference the General Terms and Conditions themselves. Accordingly, the appellants failed to meet their burden to prove the forum selection clause's existence by calling evidence to establish that the contract included it.
The Court furthered deferred to the motion judge's finding that the clause neither applied to GAL Power's crossclaim nor bound the respondent plaintiffs, the other respondent defendants, or Kohler.
Bank of Montreal v Utility Engineers Corporation, 2025 ONCA 311
[Lauwers, Favreau and Dawe JJ.A.]
Counsel:
Y. Rifkind, for the appellant
S. S., acting in person
I. Klaiman and W. Onyeaju, for the respondent
Keywords: Contracts, Debtor-Creditor, Guarantees, Defences, Non Est Factum, Civil Procedure, Summary Judgment, Procedural and Natural Justice, Amending Pleadings, Evidence, Admissibility, Examination for Discovery, Rules of Civil Procedure, rr. 20.01, 20.04(1), 26.02, 30.04, 39.04(2), Hryniak v. Mauldin, 2014 SCC 7, Singh v. Khalill, 2024 ONCA 909, Rose-Terra Investments Inc. v. Chetti, 2024 ONCA 427, Bank of Montreal v. Duguid (2000), 47 O.R. (3d) 737 (C.A.), Baldwin v. Daubney (2006), 83 O.R. (3d) 308 (C.A.), Del Giudice v. Thompson, 2024 ONCA 70
Facts:
The respondent, Bank of Montreal, granted a $500,000 overdraft facility to Utility Engineers Corporation ("Utility"). Utility's loan was secured by a General Security Agreement and was also personally guaranteed by Mr. M. and his mother, the appellant, S. S. Following default under the facility, the Bank obtained default judgment against Utility and Mr. M. and moved for summary judgment against S. S. under her guarantee of the debt. The motion judge granted summary judgment and ordered S. S. to pay the Bank $500,000, pre-judgment interest of $98,662.33, and costs of $51,598.91. S. S. appealed.
Issues:
- Did the motion judge err in determining that this was a proper case for summary judgment?
- Did the motion judge err in finding that the Bank was under no duty to ensure S. S. understood the consequences of the personal guarantee?
- Did the motion judge err in finding that S. S.'s defence of non est factumdid not raise a serious issue requiring trial?
- Did the motion judge err by denying the self-represented S. S. procedural fairness?
Holding:
Appeal dismissed.
Reasoning:
1. Did the motion judge err in determining that this was a proper case for summary judgment?
No. The motion judge held that there was an adequate evidentiary record before her to decide the motion because there were no factual disputes properly before her that: the Bank had granted Utility the overdraft facility; S. S. had signed the personal guarantee; Utility was in default under the facility; and the Bank had made a written demand for payment.
The Court held that it saw no error in this conclusion and the motion judge's findings attracted deference.
2. Did the motion judge err in finding that the Bank was under no duty to ensure S. S. understood the consequences of the personal guarantee?
No. The Court noted that the appellant argued that the special, mother-son relationship she had with Mr. M. gave rise to a duty for the Bank to inquire. She further claimed that there was no prospect of financial gain for her flowing from the overdraft facility.
The motion judge noted that S. S. did not plead in her statement of defence or contend on the evidence that there was any special relationship between Mr. M. and her. She nevertheless considered this argument and concluded that there was no special relationship between S. S. and Mr. M, and in the absence of a special relationship, "a lender owes no duty to a borrower in connection with the making of a loan and has no obligation to explain the loan instruments to a guarantor."
The Court saw no error in the motion judge's conclusion. She understood the relationship between Mr. M. and S. S., and the nature of the transaction was fully on the record before her. An ordinary lender and borrower relationship "does not involve or give rise to a fiduciary duty on the part of the lender towards the borrower": Baldwin v. Daubney.
3. Did the motion judge err in finding that S. S.'s defence of non est factumdid not raise a serious issue requiring trial?
No. The Court held that S.S. was a relatively sophisticated party: she was a longtime real estate agent and produced significant personal financial information to the Bank, including documents showing her net worth and income. She ought to have known that the guarantee documentation went beyond that required to open a bank account. Though she stated she did not read the document or seek legal advice, that was her failure, and in the circumstances the defence of non est factum had no air of reality.
4. Did the motion judge err by denying the self-represented S. S. procedural fairness?
No. The Court noted that S.S. raised two procedural questions. The first was that the motion judge wrongly refused to allow her to file an Amended Statement of Defence. The second was that the motion judge refused to permit her to file and rely on the transcript from her examination for discovery.
The Court noted that S.S. served an Amended Statement of Defence. The Amended Statement of Defence deleted a defence in the earlier Statement of Defence that her son had misrepresented to her the nature of the personal guarantee. The Amended Statement of Defence instead alleged that: the Bank had had no communication with S. S.; that it sent all communications to an unrelated address such that S. S. had no knowledge of the existence of the loan; that the personal guarantee was unwitnessed by the Bank; and that S. S. had not actually signed the document. Counsel for the Bank objected to the service of the Amended Statement of Defence and informed S. S. that she would be required to bring a motion for leave to amend the statement. She did not bring a motion to amend.
The Court held that the motion judge made no reversible error in declining to consider the Amended Statement of Defence in her decision. The Bank's counsel informed S. S. that she was required to bring a motion to amend her statement of defence, which she did not do.
Regarding the second procedural fairness question, the Court held that under r. 39.04(2) of the Rules of Civil Procedure, transcripts on a motion from a party's own examination for discovery are inadmissible unless admitted on consent. The Bank refused to consent to the admission of S. S.'s examination. The motion judge did not err in refusing to let S. S. use the transcripts in evidence. The Court further held that it was open to the Bank to rely on the transcript, as it did in establishing S. S.'s admissions: r. 30.04(1).
Lang-Newlands v Newlands, 2025 ONCA 328
[Pepall J.A. (Motion Judge)]
Counsel:
J. T. Curry, D. Knoke and A. Franks, for the moving party
J. Lisus, H. Niman, D. Gelgoot and J. Liew, for the respondent
Keywords: Motions, Family law, Spousal Support, Post-Separation Adjustments, Civil Procedure, Appeals, Stay Pending Appeal, Lifting of Stay, Family Law Act, R.S.O. 1990, c. F.3, Rules of Civil Procedure, r. 63.01, Shinder v. Shinder, 2018 ONCA 717, Siwick v. Dagmar Resort Ltd. (1996), 95 O.A.C. 188 (C.A.), Waxman v. Waxman, 2002 CanLII 45101 (ON CA), SA Horeca Financial Services v. Light, 2014 ONCA 811, Debora v. Debora (2005), 48 R.F.L. (6th) 269 (Ont. C.A.), Hrvoic v. Hrvoic, 2023 ONCA 288, Peper v. Peper (1990), 1 O.R. (3d) 145 (C.A.), Popa v. Popa, 2018 ONCA 972
Facts:
The parties, formerly married, engaged in lengthy litigation concerning equalization of family property, unjust enrichment, and spousal support following their separation. The trial judge found that the Moving Party's interest in a family trust was excluded property and ordered her to pay the Responding Party an equalization payment of approximately $1.18 million and indefinite monthly spousal support retroactive to the date of separation, resulting in a total award exceeding $2.8 million. The trial judge also ordered the Responding Party to pay the Moving Party over $2.2 million for post-separation adjustments, including advances and carrying costs.
Following the Responding Party's appeal, the automatic stay under Rule 63.01 of the Rules of Civil Procedure operated to stay the amounts awarded to the Moving Party but not the support payments owed to the Responding Party. The Moving Party brought a motion seeking directions to characterize the monetary awards, or alternatively, an order lifting or modifying the stay to address the imbalance created by the operation of the rule. The motion centered on the treatment of the post-separation adjustments, the retroactive support award, and the equalization payment.
Issues:
- Should the Court provide directions characterizing the post-separation adjustments as spousal support?
- Should the Court lift the automatic stay on the post-separation adjustments or stay the enforcement of the equalization and retroactive support payments pending appeal?
Holding:
Motion granted, in part.
Reasoning:
1. No.
The Court refused to give directions to characterize the post-separation adjustments as spousal support. The Court noted that no authority was provided to permit such an order and observed that the Moving Party had not sought clarification from the trial judge before he became functus. The Court further noted that neither the trial judge nor the earlier interim orders characterized the payments as spousal support, and that the Moving Party appeared to have deliberately avoided such a characterization at trial, likely for strategic reasons, including tax considerations.
The Court disagreed that even if the payments were characterized as spousal support, the Moving Party could benefit from the stay exception applicable to support orders. The Court emphasized that the post-separation adjustments were reimbursement of sums previously advanced, not ongoing support payments intended to prevent hardship pending appeal. Accordingly, the Court dismissed the request for directions.
2. Yes.
The Court exercised its discretion to lift the automatic stay on the Responding Party's obligation to pay the Moving Party $2,240,544.56 in post-separation adjustments. The Court noted that in family law appeals, the traditional factors for lifting a stay—financial hardship, ability to repay, and the merits of the appeal—must be applied flexibly and with a focus on the interests of justice. The Court accepted that there was a serious risk the Moving Party would not recover the amounts owed if the stay were not lifted, citing findings at trial that the Responding Party had incurred significant debts, engaged in financial misconduct, and lacked credibility.
The Court found that the Moving Party had the ability to repay or secure the funds if necessary, further supporting the lifting of the stay. The Court acknowledged that the Responding Party's appeal raised an arguable issue concerning the trial judge's interpretation of Shinder, but emphasized that any assessment of the merits at this stage was necessarily limited. Having considered the full circumstances, the Court concluded that lifting the stay was appropriate and in the interests of justice. As a result, the Moving Party was ordered to pay the Responding Party the net difference owed after set-off and to continue making monthly spousal support payments. The Court also ordered the appeal to be expedited.
Nutrition Guidance Services Inc. v Schwartz, 2025 ONCA 316
[Zarnett, Sossin and Copeland JJ.A.]
Counsel:
J. Goldblatt and R. Allen, for the appellants
R. B. Macdonald and T. Obradovic, for the respondents
Keywords: Real Property, Tenancies in Common, Partition and Sale, Partnerships, Dissolution, Civil Procedure, Summary Judgment, Costs, Partnerships Act, R.S.O. 1990, c. P.5, ss. 2, 3(1), 6, 7, 10, 11, 32(c), Partition Act, R.S.O. 1990, c. P.4, Rules of Civil Procedure, r. 66.02, Nutrition Guidance Services Inc. et al v. Schwartz et al., 2024 ONSC 3760, Nutrition Guidance Services Inc. v. Schwartz, 2024 ONCA 636, Backman v. Canada, 2001 SCC 10, A.E. LePage Ltd. v. Kamex Developments Ltd. et al. (1977), 78 D.L.R. (3d) 223, 16 O.R. (2d) 193, Continental Bank Leasing Corp. v. Canada, [1998] 2 S.C.R. 298, Rochwerg v. Truster (2002), 58 O.R. (3d) 687 (On. C.A.), Miller v. Miller, 2016 ONSC 3027, Katal v. Khurshid, 2017 ONSC 3412, Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 95, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9
Facts:
Nutrition Guidance Services Inc. ("NGSI") and the Respondents owned a small medical office building (the "Property"). Dr. E, his wife and NGSI are the Appellants. Dr. M and his wife are the Respondents. The Appellants hold 75% of the property and the Respondents hold 25%. The relationship between Dr. E and Dr. M, who are brothers, broke down and in 2006, Dr. M moved out of the building and refused to pay his share of the expenses of the Property. The Appellants then commenced their claim in April 2021, alleging that the Property was held as an asset of a partnership. The Appellants also alleged in their claim that service of the claim was notice of dissolution of the partnership under s.32(c) of the Partnerships Act. The Appellants sought a declaration that the ownership of the Property was a partnership, an order under s. 35(1)(f) of the Partnerships Act dissolving the partnership, and an order directing the Respondents to sell their 25% interest in the Property to the Appellants. In addition, the Appellants sought reimbursement for 25 percent of expenses they paid to maintain the Property after Dr. M's departure in 2006. The Respondents' statement of defence and counterclaim denied that the Property was held in a partnership. They pleaded that the Property was held as a tenancy in common. The Respondents sought the sale of the Property on the open market, pursuant to the Partition Act.
Both sides brought motions for summary judgment. The primary issue on the motions was whether the Property was held in a partnership or as a tenancy in common, and whether a sale should be ordered under the Partition Act. The motion judge found that the Property was not held in a partnership and found that the Appellants and the Respondents were co-owners as tenants in common. The motion judge then ordered a sale of the Property under the Partition Act. He ordered that the Respondents should have the first opportunity to sell the property at its highest market value and dispensed with the consent of the Appellants to complete the sale for 90 days.
Issues:
- Did the motion judge err in finding that the Appellants failed to establish that the Property was held in a partnership?
- Did the motion judge err in dispensing with the Appellants' consent to the sale?
- Did the motion judge err in fixing costs of the motions?
Holding:
Appeal allowed in part.
Reasoning:
1. No.
The Court saw no error in the motion judge's finding that the record did not support a finding that the Property was held in a partnership. The Court held that the motion judge correctly stated the requirements for the existence of a partnership, which are (1) a business, (2) carried on in common, and (3) with a view to profit. Furthermore, the question of whether a partnership exists turns on the intentions of the parties as determined by the totality of the circumstances.
The motion judge noted that there was no written agreement among the owners at any time, and he rejected the existence of a medical partnership as there was no evidence in support of this. He considered whether the parties operated the building in a partnership and based on the record before him, found that the operation of the building did not satisfy the business requirements. Furthermore, the motion judge found that the requirement that a business be carried on in common was not satisfied. He found that there was a common intention to carry on separate medical practices without paying commercial rent, but that this was not carrying on a business in common. The motion judge also found that the requirement of a view to profit was not satisfied as the building was always operated at a loss. Accordingly, there was never an intention to make money from the Property separate from its value as a real estate investment.
The Court noted that the question of whether the record supports a finding that a partnership existed is a factual one. The Court found that the motion judge properly turned his mind to the totality of the circumstances. Accordingly, the Court saw no palpable and overriding error in the motion judge's factual findings on this issue and noted that his factual findings were entitled to deference.
2. Yes.
The Court agreed with the Appellants that the motion judge erred in dispensing with their consent to the sale. First, the Court found that this was procedurally unfair because no party sought this relief before the motion judge and no submissions were made on the issue. The motion judge should have put the parties on notice that he was considering dispensing with the Appellants' consent to the sale to give them an opportunity to make submissions. It was procedurally unfair to make the order without doing so.
Second, the Court found that the record did not support the making of an order dispensing with the Appellants' consent to the sale of the Property. A court may dispense with a co-owner's consent to a sale if the co-owner is withholding consent unreasonably. The Court found that the record did not support the conclusion that the Appellants would attempt to frustrate the sale of the Property on the open market or unreasonably withhold consent to the sale. The Court noted that the Appellants were 75% owners of the Property and their right to be involved in the sale ought not to have been removed in the absence of evidence that they would unreasonably withhold consent.
The Court directed a reference for sale of the Property to an associate judge of the Superior Court assigned by the Toronto Regional Senior Justice. Pursuant to rule 66.02 of the Rules, the terms of the order are the terms that are set out in Form 66A. The Court directed that the associate judge may make any necessary directions to determine the procedure for the sale and to effect the sale and that any party to the proceeding may make offers to purchase the Property in the process supervised by the associate judge.
3. No.
The Appellants sought leave to appeal the motion judge's costs order. The Court explained that leave to appeal costs is sparingly granted, as fixing costs is highly discretionary. An appellate court may set aside a trial or motion judge's costs award only if the judge made an error in principle or if the costs award is plainly wrong. The Court saw no error in the motion judge's exercise of discretion in awarding costs and as such denied leave to appeal costs.
SHORT CIVIL DECISIONS
Gerasimov v Ratayev, 2025 ONCA 309
[Lauwers, Favreau and Dawe JJ.A.]
Counsel:
A. Sutton, for the appellant/respondent by way of cross appeal
A. Lokshin, for the respondents/appellants by way of cross appeal
Keywords: Contracts, Civil Procedure, Settlements, Enforcement, Appeals, Procedural and Natural Justice, Insufficiency of Reasons, Rules of Civil Procedure, rr. 50.13(5), 50.13(6), R. v. Sheppard, 2002 SCC 26, R. v. G.F., 2021 SCC 20
Toronto Standard Condominium Corporation No. 2931, 2025 ONCA 323
[Roberts J.A. (Motions Judge)]
Counsel:
H. Ashraf, for the moving parties
J. Fine, for the respondent corporation
N. J. Tourgis, for the respondents
Keywords: Civil Procedure, Appeals, Perfection, Extension of Time, Rules of Civil Procedure, rr. 59.03, 59.04, Caledon (Town) v. Darzi Holdings Ltd., 2022 ONCA 455, Issasi v. Rosenzweig, 2011 ONCA 112, Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, Pantoja v. Belilla, 2023 ONCA 757
Temagami (Municipality) v Temagami Barge Limited), 2025 ONCA 315
[Huscroft, Coroza and George JJ.A.]
Counsel:
L. F. Longo, for the appellants
C. M. Loopstra and J. Westworth, for the respondent Corporation of the Municipality of Temagami
E. Machado, for the respondent His Majesty the King in Right of the Province of Ontario as represented by the Minister of Northern Development, Mines, Natural Resources and Forestry
Keywords: Real Property, Municipal Law, Land Use Planning, Bylaws, Legal Non-Conforming Use, Enforcement, Civil Procedure, Applications, Remedies, Injunctions, Expert Evidence, Costs, Rules of Civil Procedure, r. 38.10, Courts of Justice Act, s. 133(b), Saint Romuald (City) v. Olivier, 2001 SCC 57, Murano v. Bank of Montreal (1998), 41 O.R. (3d) 222 (C.A.), McFlow Capital Corp. v. James, 2021 ONCA 753
Rathee v Rathee, 2025 ONCA 326
[MacPherson, Roberts and Wilson JJ.A.]
Counsel:
L. Z. Dembo and C. Palmer, for the appellant
L. Wolfson, for the respondent
Keywords: Family Law, Spousal Support, Civil Procedure, Orders, Setting Aside or Varying, Accidental Slip or Omission, Rules of Civil Procedure, r. 59.06(1), Carol Rogerson and Rollie Thompson, Spousal Support Advisory Guidelines, Ottawa: Department of Justice Canada, 2008, Rathee v. Rathee, 2024 ONCA 912, Liu v. Jin Qiu, 2022 ONCA 544, Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc., 2013 ONSC 1502
Hill v Green, 2025 ONCA 312
[Huscroft, Coroza and George JJ.A.]
Counsel:
E. Birnboim, for the appellant
M. Lambert and S. D. Groot, for the respondent
Keywords: Family Law, First Nations, Spousal Support, Property, Remedies, Equalization of Net Family Property, Family Law Act, R.S.O. 1990, c. F.3
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