Court Of Appeal Summaries (May 5 – 9, 2025) - Civil Law

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 5, 2025. This was a light week.

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In Kew Estate v. Konarski, the Court upheld a damages award to an estate after the defendant wrongfully took and dismantled a vintage Corvette with significant sentimental and collector value. The trial judge correctly applied restoration cost as the appropriate measure of damages, rather than the market value of the car at the time of the conversion and detinue. The car's uniqueness, the beneficiaries' genuine interest in restoration, and the unavailability of a suitable replacement all justified restoration cost as the correct measure of damages, even though after trial, the estate sold the remnants of the car without restoring it. The Court also confirmed that an estate can also be awarded aggravated damages for distress caused to estate trustees and beneficiaries as a result of the abuse of trust on the part of the appellant during a time of family vulnerability.

O.K. v M.H. and Conti v. Duca both involved security for costs of an appeal.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

O.K. v M.H., 2025 ONCA 352

Keywords: Family Law, Child Support, Spousal Support, Imputing Income, Property, Matrimonial Home, Remedies, Equalization of Net Family Property, Security for Support, Vesting Orders, Civil Procedure, Appeals, Adjournments, Security for Costs, Rules of Civil Procedure, rr. 56. 01, 61.06(1), 63.01, A.A. v. Z.G., 2016 ONCA 660, Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, York University v. Markicevic, 2017 ONCA 651, Lavallee v. Isak, 2022 ONCA 290, Unique Labeling Inc. v. GCAN Insurance Company, 2009 ONCA 591, Perron v. Perron, 2011 ONCA 776, Henderson v. Wright, 2016 ONCA 89, Heidari v. Naghshbandi, 2020 ONCA 757, Rathod v. Chijindu, 2024 ONCA 317

Conti v. Duca, 2025 ONCA 356

Keywords: Motions, Security for Costs, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 61.06(1)(a), 61.06(c), 56.01(1), Pickard v. London (City) Police Services Board, 2010 ONCA 643, Ford v. Windsor (City), 2018 ONCA 992

Kew Estate v. Konarski, 2025 ONCA 357

Keywords: Torts, Conversion, Detinue, Wills and Estates, Breach of Trust, Damages, Quantification, Market Value, Restoration Cost, Aggravated Damages, Rules of Civil Procedure, r. 54.08, Darbishire v. Warran, [1963] 1 W.L.R. 1067, Lengert et al. v. Gladstone (1970), 11 D.L.R. (3d) 726 (B.C. C.A.), O'Grady v. Wesminster Scaffolding Ltd., [1962] 2 Lloyd's Rep 238 (Q.B.), Palmer v. The Queen, [1980] 1 S.C.R. 759, Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, Maceroni v. Maceroni, 2024 ONCA 824, 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980, McIntyre v. Grigg, 83 O.R. (3d) 161 (C.A.), Tom v. Truong, 2002 BCSC 643, [2002] B.C.T.C. 643, Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085, Lewis N. Klar et al., Remedies in Tort (Toronto: Thomson Reuters, 2021)

Short Civil Decisions

Mundulai v. Law Society of Ontario, 2025 ONCA 351

Keywords: Regulated Professions, Lawyers, Professional Discipline, Administrative Law, Judicial Review, Civil Procedure, Leave to Appeal

Kashin v. G.E.S. Construction Limited, 2025 ONCA 354

Keywords: Contracts, Insurance, Coverage, Duty to Defend, Duty to Indemnify, Duty of Good Faith, Material Misrepresentations, Detrimental Reliance, Estoppel, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490

Brar v. Harbour, 2025 ONCA 362

Keywords: Contracts, Interpretation, Contra Proferentum, Real Property, Agreements of Purchase and Sale of Land, Unjust Enrichment, Civil Procedure, Actions, Applications, Brar et. al v. Harbour, 2024 ONSC 5651

Pye v. Di Trapani, 2025 ONCA 355

Keywords: Torts, Negligence, MVA, Civil Procedure, Damages, Prejudgment Interest, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 130, Rules of Civil Procedure, r. 57.01 Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Davies v. Clarington (Municipality), 2009 ONCA 722, MDS Inc. v. Factory Mutual Insurance Company, 2021 ONCA 594, leave to appeal refused, [2021] S.C.C.A. No. 382, Stellarbridge Management v. Magna International (2004), 71 O.R. (3d) 263 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 371

CIVIL DECISIONS

O.K. v M.H., 2025 ONCA 352

[Roberts J.A. (Motions Judge)]

COUNSEL:

M.H., acting in person

M. H. Tweyman, for the responding party

I. Matthews, appearing as amicus curiae

FACTS:

The appellant appealed from a judgment determining child support and spousal support and ordering an equalization payment to the respondent, and the disposition of the parties' home. In ordering child and spousal support, the trial judge imputed income to the appellant and vested the appellant's equity in the home in the respondent as security for the appellant's past and ongoing support obligations. The respondent moved to adjourn and stay the appeal until the appellant paid three months' support arrears and security for costs of the appeal.

ISSUES:

Was the moving party entitled to have the appellant's appeal adjourned?

HOLDING:

Appeal adjourned.

REASONING:

Yes. The Court accepted the respondent/moving party's request for payment of support arrears and rejected the appellant/responding party's assertion that nothing was due because he had effectively pre-paid them. The Court stated that the trial judge's orders were clear and provided for the ongoing payment of child and spousal support.

It is well-established that support payments are not automatically stayed by an appeal: r. 63.01. The Court explained that if the responding party wished to stay his obligations, he was required to bring a motion. If the responding party was confused about the trial judge's decision or his ongoing obligations, or if he was of the view that the order did not reflect the trial judge's decision, he was required to return before the trial judge. The Court found that he had done none of these things, and instead unilaterally decided that he did not have to pay. The responding party's actions reflected a continuing pattern of a failure to honour his court-ordered support obligations.

In the face of non-payment of support, the Court explained that an appellate court may exercise its discretion and adjourn, stay or dismiss an appeal: A.A. v. Z.G. The Court exercised its discretion to adjourn the appeal in this case.

Turning to the request for security for costs, r. 61.06(1) sets out the criteria for making such an order on an appeal. The determination of whether security for costs should be ordered is a two-step process. First, the court must assess whether the statutory criteria under r. 61.06(1) have been met. Second, the order is discretionary and will not be made unless the court is persuaded that it is just: Thrive Capital Management Ltd. v. Noble 1324 Queen Inc.; Yaiguaje v. Chevron Corporation.

The Court was not persuaded that security for costs should be awarded under r. 61.06(1)(a), but held that the motion succeeded under r. 61.06(1)(b) and (c). With respect to r. 61.06(1)(b), the responding party no longer lived in Ontario. Having established this fact, the Court explained that the onus shifted to the responding party to demonstrate that he had assets available to satisfy the moving party's costs if the appeal was unsuccessful or that his appeal had merit and the posting security for costs would have prevented him from continuing with it: Yaiguaje; Unique Labeling Inc. v. GCAN Insurance Company. The Court concluded that the responding party failed to satisfy his onus because he had no assets in Ontario.

Given his historical and ongoing failure to honour his support obligations and the possibility that he may have relocated to Qatar, the Court had no confidence that any monies would remain available to satisfy a costs order, nor that he would voluntarily satisfy a costs order if he did lose his appeal. The Court held further that as the moving party was a person of limited means, exacerbated by the responding party's failure to pay support, it would be unfair to require her to bring proceedings to recover payment of a costs order if the responding party's appeal was unsuccessful. The Court found that this was not the case with the responding party: he had substantial funds and was gainfully employed earning a six-figure salary. There was no suggestion that he could not afford to proceed with his appeal if security for costs was ordered.

The Court also held that the moving party was entitled to security for costs under r. 61.06(1)(c). The Court cited Thrive Capital Management Inc., where Zarnett J. stated that "The list of what might qualify as an "other good reason" is not closed. But the reason must be (i) compelling, and (ii) related to the purpose of ordering security, which is to provide a respondent with a measure of protection for costs". The Court explained that what may qualify as an "other good reason" includes: the responding party's historical and ongoing failure to pay his support obligations, the weakness of his appeal, and the unlikelihood that the moving party would be able to collect costs if the appeal was unsuccessful: Perron v. Perron; Henderson v. Wright; Heidari v. Naghshbandi; Rathod v. Chijindu.

Conti v. Duca, 2025 ONCA 356

[Simmons J.A. (Motions Judge)]

COUNSEL:

J. D. and J. D., acting in person

G. Gryguc, for the responding party

FACTS:

The self-represented moving parties, J.D. 1 and J.D. 2 (the "D.'s") sought an order requiring the respondent, Mr. C., to post security for costs in the amount of $25,000 and to pay outstanding costs orders totaling $12,100 plus interest, as a condition of proceeding with this appeal.

Mr. C.'s appeal is from a judgment dismissing Mr. C's claim for an ownership interest in a residential property (the "House") registered in the name of J.D 1.

In his action, Mr. C claimed that, following his employment by Daytona Auto Centre Ltd. ("Daytona"), the parties made an agreement that the House would be purchased for him but registered in the name of J.D 1. He was to be responsible for all expenses in relation to the House and when he was financially able, the House would be transferred into his name. J.D. 2 is the sole director and shareholder of Daytona. J.D. 1 is J. D. 2's son and the operations manager of Daytona.

The D.'s denied that the agreement alleged by Mr. C. was ever made. They claimed that, in 2011, J.D. 2 purchased the House as an investment for his son, J.D. 1, and to provide a home for Mr. C. to live in while he was employed at Daytona.

ISSUES:

Should the moving party be granted an order for security for costs as a condition of proceeding with this appeal?

HOLDING:

Motion granted.

REASONING:

Yes. The Court ordered Mr. C to post security for costs in the amount of $6,700. In the event Mr. C. fails to make any of the ordered payments on or before the specified dates, the moving parties may move for an order dismissing the appeal on notice to Mr. C.

While the respondent's grounds of appeal were weak, they were not frivolous, and therefore did not meet the threshold for security for costs under Rule 61.06(1)(a). The respondent's appeal primarily challenged factual and credibility findings made by the trial judge, which are entitled to deference, and lacked specificity in both the notice of appeal and oral submissions. However, the Court noted that the only potentially arguable ground related to the trial judge's finding of no unjust enrichment. Due to the limited record—particularly the absence of the statement of claim—the Court was not prepared to conclude that this ground was entirely devoid of merit.

Applying Rule 56.01(1)(c), the Court found that the respondent had failed to pay two costs orders totaling $7,100, but clarified that unpaid costs to the Intervener and costs awarded at trial could not be relied upon for the purpose of this motion, either because they were not captured by the rule or were not yet due. The Court also held that under Rule 61.06(1)(c), there were "other good reasons" to grant security for costs, including the respondent's weak appeal, unpaid costs, and failure to disclose sufficient evidence of his financial circumstances. The respondent remained in the disputed property while paying below-market occupation costs. While the Court declined to order security in relation to the unpaid costs, it granted a partial security for costs of the appeal.

Kew Estate v. Konarski, 2025 ONCA 357

[Miller, Trotter and Copeland JJ.A]

COUNSEL:

D. G. Crawford, for the appellant

J. E. Scholes and D. Boswell, for the respondent

FACTS:

Following the unexpected death of Mr. K., a trusted friend, the appellant, was asked by the family to safeguard four of Mr. K.'s vintage vehicles, including a prized 1960 Corvette convertible. Instead of protecting them, the appellant fraudulently transferred ownership of the Corvette to himself, stripped it for parts, and resisted demands for its return. The estate, represented by Mr. K's ex-wife, sued for the return of the vehicles or damages. The trial judge found the appellant liable for conversion and detinue, ordered return of the vehicles, and referred the issue of damages to a referee.

While three vehicles were returned intact, the Corvette had been dismantled, leaving only a damaged shell. The referee's report was delayed, incomplete, and ultimately rejected by the trial judge, who found it lacked jurisdictional and evidentiary rigour. The trial resumed for assessment of damages, and the trial judge concluded that restoration—not replacement—was the proper basis for compensating the estate, considering the Corvette's uniqueness, rarity, sentimental value, and the risk of unjust enrichment to the appellant. Damages were assessed at $236,712.40 for restoration costs, less $15,000 for the returned remnants, plus $15,000 in aggravated damages for the appellant's breach of trust. However, the total award was reduced to $200,000 to match the amount claimed in the pleadings. The appellant appealed, challenging the damages award on multiple grounds, including proportionality, legal principles, and the aggravated damages component.

ISSUES:

Did the trial judge place insufficient weight on the respondent's failure to have the Corvette restored to driving condition?
Did the trial judge fail to follow binding authority that provides that goods that have been converted are to be valued as at the date of conversion?
Was the award of damages contrary to public policy?
Was the award for aggravated damages a re-categorization of an award for punitive damages?

HOLDING:

Appeal dismissed.

REASONING:

1. Did the trial judge place insufficient weight on the respondent's failure to have the Corvette restored to driving condition

No. The Court rejected the appellant's argument that the estate's failure to restore the Corvette undermined the trial judge's conclusion that the estate had a genuine interest in restoration. The Court held that the trial judge properly assessed the estate's intention to repair the vehicle as of the time of trial, which is the relevant point for such an analysis. This finding was supported by evidence of preparatory steps taken, including locating a qualified restorer, obtaining a cost estimate, and demonstrating the Corvette's strong sentimental value to Mr. K's family. The Court declined to admit fresh evidence showing the Corvette was later sold unrestored, finding that it would not have affected the outcome. Changing financial circumstances after trial did not negate the bona fide intention to restore the vehicle at the relevant time. Accordingly, the Court found no error in the trial judge's reliance on that intention to support awarding damages based on restoration cost.

2. Did the trial judge fail to follow binding authority that provides that goods that have been converted are to be valued as at the date of conversion?

No. The Court rejected the appellant's argument that the trial judge erred by failing to follow binding authority requiring damages for conversion to be assessed at the market value as of the date of conversion. The Court held that the authority relied upon, 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), did not apply to the facts of this case and did not create a categorical rule limiting recovery to the asset's value at the time of conversion. The Court noted that the respondent's claim was framed not just for return of the vehicles but also for damages arising from their deterioration while in the appellant's possession. Given that the extent of the damage was unknown at the initial trial, the case proceeded in phases, with a later determination of whether further damages were needed to fully compensate the estate. Accordingly, the trial judge was not bound to use the date-of-conversion value and was entitled to award restoration-based damages.

3. Was the award of damages contrary to public policy?

No. The Court rejected the appellant's argument that the restoration-based damages award was unfair, excessive, or contrary to public policy. The Court held that the trial judge appropriately applied the relevant legal principles for assessing damages in cases involving the return of wrongfully detained but damaged property. The trial judge considered the key factors, including the Corvette's uniqueness, limited availability of true replacements, and the respondent's genuine interest in restoration. The Court noted that while the restoration cost exceeded the appellant's suggested replacement cost, the trial judge rejected the appellant's valuation and accepted the respondent's expert evidence that a truly comparable replacement would cost close to the restoration figure once inspection and repairs were factored in.

The Court further observed that the high cost of restoration was largely driven by the rarity of original Corvette parts, which was the very reason the appellant dismantled the vehicle for resale value. Thus, the Court held that the restoration cost was a just reflection of the loss and not a windfall. The trial judge also reasonably addressed the potential for overcompensation, concluding that any betterment was speculative and that, in such cases, the law rightly protects the faultless plaintiff rather than the defendant.

4. Was the award for aggravated damages a re-categorization of an award for punitive damages?

The Court rejected the appellant's argument that the trial judge erred in awarding aggravated damages. Although aggravated damages were not expressly pleaded, they were encompassed within the general claim for damages arising from the conversion and the appellant was not taken by surprise. The trial judge found that the award was justified by the appellant's reprehensible conduct, which involved the abuse of a position of trust and inflicted emotional harm on the estate beneficiaries during a period of vulnerability.

The Court noted that aggravated damages serve a compensatory purpose and are appropriate where conduct causes humiliation, psychological harm, or injury to dignity. It agreed with the trial judge's conclusion that such harm had been suffered, particularly to the estate administrator and beneficiaries. The Court disagreed with the appellant's contention that this amounted to a disguised award of punitive damages and held that aggravated and punitive damages may overlap but are conceptually distinct. Finally, the Court found no error in the trial judge considering the feelings of the estate beneficiaries, emphasizing that this did not preclude an estate from recovering aggravated damages.

SHORT CIVIL DECISIONS

Mundulai v. Law Society of Ontario, 2025 ONCA 351

[Huscroft, George and Favreau JJ.A.]

COUNSEL:

A. O. M., acting in person

R. Cookhorn, for the respondent

Keywords: Regulated Professions, Lawyers, Professional Discipline, Administrative Law, Judicial Review, Civil Procedure, Leave to Appeal

Kashin v. G.E.S. Construction Limited, 2025 ONCA 354

[Huscroft, George and Favreau JJ.A.]

COUNSEL:

C. R. Dunn, for the appellant G.E.S. Construction Limited

G. Gill, for the respondent Lloyd's Underwriters

Brar v. Harbour, 2025 ONCA 362

[Trotter, Thorburn and Wilson JJ.A.]

COUNSEL:

S. M. Turk, for the appellant

A. Melfi, for the respondents

Pye v. Di Trapani, 2025 ONCA 355

[Rouleau, van Rensburg and Gomery JJ.A.]

COUNSEL:

D. T.S. Wong and S. Ullal, for the appellants

C. Morrison and M. Klassen, for the respondent

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Court Of Appeal Summaries (May 5 – 9, 2025)

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