Court Of Appeal Summaries (June 23-27, 2025)

Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of June 23, 2025.

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In Price v. Smith & Wesson, the Court partially allowed the plaintiffs' appeal of a motion judge's decision to not certify their class action. The Court certified their negligence claim against a gun manufacturer as a class proceeding. The plaintiffs sued Smith & Wesson for failing to incorporate authorized user technology that would prevent stolen guns from being fired by criminals. Smith & Wesson had apparently entered into an agreement with the U.S. government to install such technology more than two decades ago, but had not honoured that agreement. The case arose out of the tragic Danforth shooting in Greektown in July 2018. Applying the Anns/Cooper test, the Court confirmed that a duty of care in negligence existed because the manufacturer could foresee its guns being stolen and misused to harm other people. The foreseeability of that injury put the parties in a proximate relationship, and no policy considerations negated the resulting duty of care. The Court upheld the motion judge's dismissal of the plaintiffs' strict liability and public nuisance claims. It determined that it was inappropriate to extend the law of strict liability set out in Rylands v Fletcher (which relates to the use of land) to a product manufacturer where there was no use of land at issue. The Court also determined that while the discharge of a firearm could constitute a public nuisance, the manufacture of one could not, as gun manufacturing was a legal and regulated activity.

In a lengthy decision in Drover v. Canada (Attorney General), the majority of the Court allowed the appeal of the ex-returning officer for Carleton, who sought a declaration that residency requirements in the Canada Elections Act to hold that office were contrary to the right to liberty under section 7 of the Canadian Charter of Rights and Freedoms. The majority was of the view that the application judge erred in determining that the choice of residence does not engage in a section 7 liberty interest. In a lengthy dissent, Miller J.A. disagreed with the scope of section 7 and would have dismissed the appeal.

In Ontario Securities Commission v. Cacoeli Asset Management Inc., the Court dismissed a motion to stay a receivership order made under the Securities Act upon application of Ontario Securities Commission.

In Afolabi v. Law Society of Ontario, the LSO learned that its November 2021 bar examinations were compromised. The investigation process identified candidates that intentionally or inadvertently had advance access to a cheating key duplicating answers to the exam. The candidates in question had their exam scores and LSO registration applications voided. Twenty of the applicants applied for judicial review. The Divisional Court found in their favour, however, the Court set aside that decision in April 2025. The twenty candidates' motion to re-open the appeal was dismissed.

In Bongard v. Bullen, the Court dismissed the defendant's appeal from the motion judge's dismissal of his anti-SLAPP motion, and further dismissed the self-represented plaintiff's cross-appeal from the motion judge's decision not to award costs. The Court agreed with the motion judge that the expression at issue was not related to a matter of public interest and that the self-represented plaintiff had not established any forgone earnings that would have justified overcoming the presumption that successful plaintiffs do not normally get costs on anti-SLAPP motions.

In Sapusak v Canguard Group Limited, the Court dismissed the appellant's appeal of a motion judge's partial summary judgment which found that the appellant's mortgage was fraudulent and removed it from title.

In Kim v. McIntosh, the appellant father, who lives in Australia, unsuccessfully sought to vary a parenting order. He wanted more time with the children in Australia, and apparently, so did they. The appeal was dismissed. While the children's wishes were a factor, they did not rise to the level of a material change in circumstances and were not determinative of the best interests of the children analysis.

In Bosrock v. Hutchison, the Court dismissed an appeal from an order granting spousal support and costs.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Price v. Smith & Wesson Corporation, 2025 ONCA 452

Keywords: Torts, Negligence, Product Liability, Duty of Care, Anns/Cooper Test, Standard of Care, Strict Liability, Public Nuisance, Civil Procedure, Class Proceedings, Certification, Reasonable Cause of Action, Common Issues, Rules of Civil Procedure, r. 21, Class Proceedings Act, 1992, S.O. 1992, c. 6, s.5(1), Family Law Act, R.S.O. 1990, c. F.3, s. 61, Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), Cooper v. Hobart, 2001 SCC 79, Bowman v. Ontario, 2022 ONCA 477, Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Rankin (Rankin's Garage & Sales) v. J.J., 2018 SCC 19, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Nelson (City) v. Marchi, 2021 SCC 41, Donoghue v. Stevenson, [1932] A.C. 562 (Eng. H.L.), Dixon v. Bell (1816), 105 E.R. 1023 (Eng. K.B.), Dominion Natural Gas Co. v. Collins, [1909] A.C. 640 (P.C.), Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744, Kreutner v. Waterloo Oxford Cooperative Inc. (2000), 50 O.R. (3d) 140 (C.A.), Cantlie v. Canadian Heating Products Inc, 2017 BCSC 286, Nicholson v. John Deere Ltd. (1986), 58 O.R. (2d) 53 (H.C.), Rentway Canada Ltd./Ltée v. Laidlaw Transport Ltd. (1989), 49 C.C.L.T. 150 (Ont. H.C.), Gallant v. Beitz (1983), 42 O.R. (2d) 86 (H.C.), Burr v. Tecumseh Products of Canada Limited, 2023 ONCA 135, Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, Rylands v. Fletcher (1868), L.R. 3 H.L. 330 (U.K.H.L.), Tock v. St. John's (City) Metropolitan Area Board, [1989] 2 S.C.R. 1181, Smith v. Inco Limited, 2011 ONCA 628, Daishowa-Marubeni International Ltd. v. Toshiba International Corporation, 2010 ABQB 627, Ryan v. Victoria, [1999] 1 S.C.R. 201, Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, Hodge v. Neinstein, 2017 ONCA 494, Hyundai Auto Canada Corp. v. Engen, 2023 ABCA 85, Lewis N. Klar, Tort Law, 2nd ed., Scarborough: Carswell, 1996, Philip H. Osborne, The Law of Torts, 4th ed., Toronto: Irwin Law Inc., 2011, Warren K. Winkler et al., The Law of Class Actions in Canada, Toronto: Canada Law Book, 2014

Drover v. Canada (Attorney General), 2025 ONCA 468

Keywords: Elections Law, Constitutional Law, Right to Liberty, Reasonable Limits, Oakes Test, Statutory Interpretation, Canadian Charter of Rights and Freedoms, ss. 1, 2, 5, 7 and 12, Canada Elections Act, S.C. 2000, c. 9, ss. 22(4), 24(4), Canadian Bill of Rights, S.C. 1960, c. 44, ss. 1(a), 2(e), Constitution Act, 1867, s. 52(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1)(a), Elections Modernization Act, S.C. 2018, c. 31, Universal Declaration on Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 211, Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, R. v. MalmoLevine, 2003 SCC 74, Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, Gosselin v. Québec (Attorney General), 2002 SCC 84, Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, Jones v. The Queen, [1986] 2 S.C.R. 284, R. v. Morgentaler, [1988] 1 S.C.R. 30, B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, Reference re ss. 193 & 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123, Jackson v. Canada (Attorney General) (2006), 215 O.A.C. 96 (C.A.), Canada (Attorney General) v. Bedford, 2012 ONCA 186, R. v. Comeau, 2018 SCC 15, Duggan v. Durham Region Non-Profit Housing Corporation, 2020 ONCA 788, R. v. Kirkpatrick, 2022 SCC 33, Canada v. Craig, 2012 SCC 43, Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, Chaoulli v. Quebec (Attorney General), 2005 SCC 35, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, Canada (Attorney General) v. Bedford, 2013 SCC 72, Carter v. Canada (Attorney General), 2015 SCC 5, Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, R. v. Oakes, [1986] 1 S.C.R. 103, Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, R. v. Poulin, 2019 SCC 47, R. v. Stillman, 2019 SCC 40, Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, R. v. Kapp, 2008 SCC 41, Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), Minister of Home Affairs v. Fisher, [1980] A.C. 319 (P.C., Bermuda), Peavine Métis Settlement v. Alberta (Minister of Aboriginal Affairs & Northern Development), 2007 ABQB 517, Doe v. Canada (Attorney General), 2007 ONCA 11, Leroux v. Ontario, 2023 ONCA 314, Mathur v. Ontario, 2024 ONCA 762, R. v. D.B., 2008 SCC 25, Rodriguez v. British Columbia (Attorney General), Page: 81 [1993] 3 S.C.R. 519, John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2025 SCC 6, R. v. Smith, 2015 SCC 34, L.M. v. Peel Children's Aid Society, 2019 ONCA 841, D'Costa v. Mortakis (2000), 47 O.R. (3d) 417, Frank v. Canada (Attorney General), 2019 SCC 1, Opitz v. Wrzesnewskyj, 2012 SCC 55, Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, R. v. Moriarity, 2015 SCC 55, R. v. Safarzadeh-Markhali, 2016 SCC 14, R. v. Michaud, 2015 ONCA 585, P.J. Fitzgerald, Salmond on Jurisprudence, 12th ed., London: Sweet & Maxwell, 1966, Grant Huscroft, "A Constitutional 'Work in Progress'? The Charter and the Limits of Progressive Interpretation" (2004) 23 S.C.L.R. (2d) 413, Philip Bryden, "Section 7 of the Charter outside the Criminal Context" (2005) 38 U.B.C. L. Rev. 507, Mark P. Mancini, "The Purpose Error in the Modern Approach to Statutory Interpretation" (2022) 59 Alta. L. Rev. 919, "Two Concepts of Liberty", Henry Hardy and Roger Hausheer, eds., The Proper Study of Mankind, New York: Farrar, Straus and Giroux, 1998, Colton Fehr, Constitutionalizing Criminal Law, University of British Columbia Press, 2022, Grégoire Webber, "Rights and Persons", Grégoire Webber et al., eds., Legislated Rights: Securing Human Rights Through Legislation, Cambridge: Cambridge University Press, 2018, Dwight Newman, "Recovering Forgotten Freedoms", Dwight Newman et al., eds., The Forgotten Fundamental Freedoms of the Charter, Toronto: LexisNexis Canada Inc., 2020, Mary Anne Waldron, Q.C., "Putting Conscience Rights in a Box: Can We Take Off the Lid?", Newman et al., eds., Forgotten Fundamental Freedoms 177, Walter Tarnopolsky, The Canadian Bill of Rights, 2nd rev. ed., Toronto: Macmillan, 1975, Joseph Raz, The Morality of Freedom, Oxford: Clarendon Press, 1986, Bundesverfassungsgericht, May 23, 1980, Zur Verfassungsmäßigkeit eines ortsrechtlichen Taubenfütterungsverbotes, BVerfGE 54, 143 (Germany), Peter W. Hogg and Wade K. Wright, Constitutional Law of Canada, 5th ed. Supplemented, Toronto: Thomson Reuters Canada, 2020

Ontario Securities Commission v. Cacoeli Asset Management Inc., 2025 ONCA 465

Keywords: Securities, Enforcement, Receiverships, Real Property, Contracts, Mortgages, Civil Procedure, Stay Pending Appeal, Evidence, Weight, Securities Act, R.S.O. 1990, c. S.5, s. 129(2), National Housing Act, R.S.C. 1985, c. N-11, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Longley v. Canada (Attorney General), 2007 ONCA 149, Zafar v. Saiyid, 2017 ONCA 919, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441, Syntex Inc. v. Novopharm Ltd. (1991), 36 C.P.R. (3d) 129 (F.C.A.), Re Regal Constellation Hotel Ltd. (2004), 71 O.R. (3d) 255 (C.A.), Ontario v. Shehrazad Non Profit Housing Inc., 2007 ONCA 267, Therriault v. United Freight Services Ltd., 2006 ABCA 350, Kitmitto et al. v. Ontario Securities Commission, 2023 ONSC 1739 (Div. Ct.), Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, Fraser v. Nova Scotia Barristers' Society, 2024 NSCA 26, Ducharme v. Hudson, 2021 ONCA 151

Afolabi v. Law Society of Ontario, 2025 ONCA 464

Keywords: Administrative Law, Judicial Review, Standard of Review, Regulated Professions, Lawyers, Licensing, Law Society Act, R.S.O. 1990, c. L.8, Law Society of Ontario, By-Law 4, Licensing, s.14(2), s.18(2), First Elgin Mills Developments Inc. v. Romandale Farms Limited, 2015 ONCA 54, Meridian Credit Union v. Baig, 2016 ONCA 942, McGrath v. Joy, 2023 ONCA 46

Bongard v. Bullen, 2025 ONCA 473

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Costs, Self-Represented Litigants, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 1704604 Ontario Ltd. v Pointes Protection Association, 2020 SCC 22, Benchwood Builders, Inc. v Prescott, 2025 ONCA 171, Dent-X Canada v Houde, 2022 ONCA 414, Mustang Investigations v Ironside, 2010 ONSC 3444, Canadian Tire Corporation, Limited v Eaton Equipment Ltd., 2024 ONCA 25, Hamilton v Open Window Bakery Ltd., 2004 SCC 9, Veneruzzo v Storey, 2018 ONCA 688

Sapusak v. Canguard Group Limited, 2025 ONCA 470

Keywords: Contracts, Real Property, Mortgages, Fraudulent Conveyances, Civil Procedure, Partial Summary Judgment, Evidence, Motions, Affidavits, Admissibility, Hearsay, Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369

Kim v. McIntosh, 2025 ONCA 469

Keywords: Family Law, Parenting, Decision-Making, Relocation, Variation, Material Change in Circumstances, Best Interest of the Child, Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 29(1), A.(A.) v. G.(Z.), 2016 ONCA 660, International Child Abduction, Can. T.S. 1983 No. 35, Gordon v. Goertz, [1996] 2 S.C.R. 27, N.L. v. R.R.M., 2016 ONCA 915

Bosrock v. Hutchison, 2025 ONCA 472

Keywords: Family Law, Spousal Support, Imputed Income, Family Law Act, R.S.O. 1990, c. F.3, s. 29, Spousal Support Advisory Guidelines, Ottawa: Department of Justice, 2008, Halliwell v. Halliwell, 2017 ONCA 349

Short Civil Decisions

Dramel Limited v. Multani, 2025 ONCA 463

Keywords: Contracts, Debtor-Creditor, Loan Agreements, Forbearance Agreements, Lending Fees, Interest, Civil Procedure, Evidence, Admissibility, Expert Evidence, Substantial Indemnity Costs, Interest Act, R.S.C. 1985, c. I-15

Watkins v. Capital Power (PDN) L.P., 2025 ONCA 458

Keywords: Civil Procedure, Representation by Lawyer, Removal of Lawyer of Record, Dismissal for Delay, Rules of Civil Procedure, rr. 15.04(8), 24.01

CIVIL DECISIONS

Price v. Smith & Wesson Corporation, 2025 ONCA 452

[Hourigan, Wilson and Pomerance JJ.A.]

Counsel:

L. Rothstein, O. Soriano, M.N. Ruby, A. Bazak, M.W. Drapeau and J. Juneau, for the appellants/ respondents

S. Maidment, J. Dent, F. D'Aquila-Kelly and E. Hush, for the respondent/appellant, Smith & Wesson Corp.

Facts:

In July 2018, F.H. shot fifteen people who were enjoying a summer evening in Greektown on Toronto's Danforth Avenue, killing two of them, using a stolen M&P®40 handgun manufactured by the respondent/appellant Smith & Wesson. The families and victims (the plaintiffs and appellant/respondents) brought a class action in 2019 against Smith & Wesson for claims in negligence, strict liability, and public nuisance, specifically for failing to implement technology to prevent unauthorized use of the gun. They alleged that if Smith & Wesson had implemented the technology, then F.H. would not have been able to use the gun. Smith & Wesson had an Agreement with the United States government in 2000 committing to incorporating authorized user technology in newly designed handguns by March 2003 to reduce criminal misuse of firearms (the "Agreement"). Smith & Wesson never complied with the Agreement. The plaintiffs brought a certification motion.

The motion judge bifurcated the plaintiff's certification motion into two phases: In the first phase, Smith & Wesson moved under r. 21 of the Rules of Civil Procedure to strike the plaintiff's claim on the basis that it disclosed no reasonable cause of action and to therefore dismiss their action. The motion judge dismissed the plaintiffs' claims based in strict liability and nuisance but determined that their negligence claim satisfied the cause of action criterion for certification. In the second phase, the motion judge concluded that the plaintiffs had not satisfied the common issue criterion set out in s. 5(1)(c) of the Class Proceedings Act, 1992 (CPA), and declined to certify their claim.

Both parties appealed the motion judge's decision. Smith & Wesson argued that the negligence claim had no reasonable prospect of success and should have been struck at the first phase. The plaintiffs argued that their strict liability and public nuisance claims were not doomed to fail, and that their action satisfied the common issues criterion.

Issues:

Did the motion judge err in not striking the claim in negligence?
Did the motion judge err in striking the claim in strict liability?
Did the motion judge err in striking the claim in public nuisance?
If the negligence claim was not properly struck, did the motion judge err in not certifying the action because the common issues criterion for certification was not met?

Holding:

Appeal allowed, in part. Smith & Wesson cross-appeal dismissed.

Reasoning:

1. No.

The motion judge correctly held that the plaintiffs' claim disclosed a cause of action in negligence, and that it was capable of success. His decision not to strike the negligence claim was fortified by a full Anns/Cooper analysis, which established that the defendant could reasonably have foreseen that its handguns might be stolen and used to harm other people. Further, the foreseeability of that injury put the parties in a proximate relationship, and no policy considerations negated the resulting duty of care.

The correctness standard of review applied to the motion judge's determination of whether a claim discloses a reasonable cause of action. Further, the test applied on a motion to strike a pleading is the same test used to determine whether pleadings satisfy the cause of action criterion under the CPA. That test asks whether it is plain and obvious, assuming the facts pleaded are true, that the plaintiff's claim cannot succeed. On motions to strike pleadings, the threshold to strike a claim is high, and the court must read the claim "as generously as possible" because it is preferable to dispose of cases on their merits.

The Court set out the Anns/Cooper duty of care analysis, which inquires into whether the plaintiff's claim: (a) falls within or is analogous to an established duty of care, or (b) is based on a novel duty. The applicable framework has three elements: proximity, reasonable foreseeability of harm, and the absence of countervailing public policy considerations. To defeat a motion to strike and satisfy the cause of action criterion, the action as pleaded must: (a) fall within an established or analogous category of duty of care, or (b) plead material facts which show that the relationship between plaintiff and defendant establishes a duty of care.

The Court clarified the current landscape for the Anns/Cooper analysis. If bodily harm is reasonably foreseeable, a duty of care will usually exist. The Court highlighted that recent Supreme Court of Canada case law represent an unwillingness to overextend a category-based approach to the duty of care analysis, however, the category-based approach should not be abandoned, because sometimes there is no need to turn to first principles. The Court held that when an established category fits a new set of facts imperfectly, the Court should undertake a full Anns/Cooper analysis, and not try to awkwardly force the two together. Further, the Court affirmed that to determine whether one party owes another a duty of care in personal injury cases, Courts must determine whether the physical harm is reasonably foreseeable, and if so, whether any policy considerations cut against recognizing a duty of care. If physical harm is reasonably foreseeable, proximity is generally established, but a duty of care is only established when the "court takes the final step and determines that no policy considerations preclude its recognition".

The Court disagreed with Smith & Wesson's argument that the motion judge took a "shortcut" by recognizing a duty of care based on established categories which are not analogous to the relationship in this case, and that this case involved a novel duty of care warranting a full Anns/Cooper analysis (although the Court still proceeded to conduct a full analysis). The motion judge found that the plaintiffs' action fell within two recognized categories of negligence, the goods dangerous per se category, and the product liability category, for which case law demonstrated that a manufacturer owes a duty to the foreseeable user of their product.

The motion judge's decision not to strike the negligence claim was fortified by the Court's full Anns/Cooper analysis, which established that Smith & Wesson could reasonably have foreseen that its handguns might be stolen and used to harm other people. Further, the foreseeability of that injury put Smith & Wesson in a proximate relationship with the victims. The Court relied on Rankin, which supports the proposition that in cases of personal injury, reasonable foreseeability often entails proximity with few exceptions. This case was not one of the exceptions. The Court found no policy considerations negating the duty of care.

The Court held that it was not plain and obvious that the defendant owed the plaintiffs no duty of care, and the plaintiffs' claim in negligence was not doomed to fail.

2. No.

It was plain and obvious that a strict liability claim did not extend to the facts of this case. It was inappropriate to extend the law of strict liability to this product manufacturer, particularly when the damages were caused by a third party while committing a crime.

The Court held that the strict liability rule developed in Rylands does not extend to the facts of this case, because the claim was not related to the use of land. The Court dismissed the plaintiffs' argument that the rule in Rylands could evolve to apply to include non-land-use-based claims. The Court held that this would represent a significant, rather than incremental, departure from the existing jurisprudence, which treats products liability as a matter of negligence, not strict liability.

Further, the Court found that refusing to impose strict liability on manufacturers was justified. Manufacturers cannot guarantee that all goods are incapable of harming people, particularly when they are not used in accordance with instructions, and a manufacturer who produces a product does not insure someone who suffers injury while using it.

3. No.

The motion judge correctly held that it was plain and obvious that selling firearms does not sound in public nuisance. Firearm manufacturing is a regulated and permitted activity. There is a difference between manufacturing firearms, which cannot constitute a public nuisance, and the actions of people who misuse firearms, which could constitute a public nuisance.

Public nuisance claims are rooted in the denial of the public's right to enjoy public areas, and includes two broad categories: (i) interference with the rights of the public which everybody shares, such as blocking access to a public park, protest marches, or polluting the air; and (ii) widespread interference with the use and enjoyment of private land.

It is one thing to impose negligence-based liability on gun manufacturers for the reasonably foreseeable consequences of third parties' use of firearms. It is quite another to impose liability in public nuisance, which does not inquire into foreseeability, proximity, or whether the defendant breached an applicable standard of care. Doing so, the motion judge rightly held, would radically transform the law governing liability for negligent manufacturing, not incrementally develop it.

4. Yes.

The motion judge erred in principle by imposing a standard that required the plaintiffs to prove their case on the merits at the certification stage. The plaintiffs' claim in negligence should be certified as a class proceeding.

The motion judge held that the plaintiffs met the identifiable class requirement, but did not meet the common issue criterion in 5(1)(c) of the CPA. The Court agreed with the plaintiffs' argument that the motion judge articulated and applied the wrong legal test under s. 5(1)(c), and found that he erred by applying a merits-based test to his common issue analysis.

The Court affirmed that on a certification motion, a motion judge "does not reach the merits of the case", and instead asks whether there is "some basis in fact" for each of the certification criteria, other than the cause of action criterion. The "some basis in fact" standard sets a low bar and requires some minimal evidence in support of a claim and does not require proof of the claim.

On the certification motion, the plaintiffs had to show some basis in fact that the proposed common issues existed and that they extended across the proposed class members. The plaintiffs were not required to demonstrate that their negligence claim would ultimately be successful, or even that there was a prima facie case. They instead had to show some evidential basis that the defendant's failure to include the authorized user technology constituted negligence and caused or increased the risk of harm to the class members.

The motion judge did not apply the some-basis-in-fact standard. Instead, he faulted the plaintiffs for failing to provide a broad range of additional expert evidence and improperly scrutinized the evidence in a merits-based manner, which amounted to a demand that they prove their case on the merits, which far exceeded the some-basis-in-fact standard's minimal requirements. The Court found that it was unfair to impose a higher evidentiary burden on a plaintiff than the CPA requires. Motion judges and defence counsel should "resist the temptation to jump to a substantive determination on the merits without a complete evidentiary record".

The Court found that the motion judge erred in three other aspects: 1) he incorrectly criticized the plaintiffs for not providing expert evidence on authorized user technology, yet wrongly refused to compel Smith & Wesson to disclose the technology's technical and commercial viability, deeming it irrelevant to certification; 2) he erred in his limited consideration of the United States' Agreement with Smith & Wesson; 3) he erred by relying on his own research to yield evidence not proffered by the parties without giving them an opportunity to respond.

The Court held that all four of the common issues that the plaintiffs sought to be certified should be certified. The Court found that the evidence showed some basis in fact to conclude (a) that Smith & Wesson was negligent in failing to incorporate authorized user technology in the gun used in the shooting; (b) that the failure to incorporate authorized user technology in the gun caused harm to the members of Classes 1 and 2; c) that Smith & Wesson is liable to family members within the meaning of the Family Law Act; and d) this was an appropriate case to award punitive damages. The Court held that because all class members were harmed by the single unauthorized user of a single gun on a single occasion, this satisfied the requirement that these issues were necessary to the resolution of each class member's claim, because all their claims arose from the same transaction.

Drover v. Canada (Attorney General), 2025 ONCA 468

[Miller, Harvison Young and Gomery JJ.A.]

Counsel:

C.Rusko, for the appellant

S.Goudarzi and J. Chung, for the respondent

Facts:

Elections Canada appointed the appellant to a ten-year term as the returning officer in the federal electoral riding of Carleton. He originally lived within the Carleton riding but later moved to a village outside of the riding. At the time, section 22(4) of the Canada Elections Act required a returning officer to reside in the riding to which they were appointed and section 24(4) provided that their office would become vacant if they ceased to reside in the riding. When Elections Canada learned about the appellant's move, it terminated his appointment as returning officer.

The appellant sought a declaration that residency requirements in the Elections Act are contrary to the freedom of liberty under section 7 of the Canadian Charter of Rights and Freedoms. An amendment to section 22(4) was made in 2019, which permitted Elections Canada to appoint returning officers who reside either in the riding of their appointment or in an adjacent riding. Section 24(4) remained unchanged.

The application judge adopted the proposition from Blencoe v. British Columbia (Human Rights Commission), that individuals are entitled to make decisions of fundamental importance free from state interference. However, the application judge ultimately dismissed the appellant's application on the basis that the right to liberty in section 7 of the Charter does not protect an individual's choice of residence.

Issues:

Did the application judge err in finding that the choice of residence does not engage the section 7 liberty interest?
1. How is the right to liberty in section 7 circumscribed?
2. Did the application judge err in finding that La Forest J.'s reasons in Godbout v. Longueuil (City) does not constitute a binding precedent for the proposition that choice of residence is a protected liberty under section 7?
3. If not, is the appellant's choice of residence a liberty interest protected under section 7?
Did the residency requirement for returning officers in the Elections Act deprive the appellant of his section 7 right contrary to the principles of fundamental justice?
If the Elections Act deprives the appellant of a liberty right, has the respondent proved that the deprivation was justified under section 1 of the Charter?

Holding:

Appeal allowed.

Reasoning:

1. Did the application judge err in finding that the choice of residence does not engage the section 7 liberty interest?

MAJORITY (Harvison Young and Gomery JJ.A.) – YES.

The majority agreed with the application judge's view on Blencoe, that section 7 protects personal autonomy for individuals to make deeply personal choices of fundamental importance, free from state interference. However, the majority disagreed with the application judge's conclusion, instead finding that the choice of residence is a decision of fundamental importance that falls within the ambit of the section 7 protection.

DISSENT (Miller J.A.) – NO.

The dissent disagreed with the application judge and the majority, finding that section 7 does not posit a free-standing right to liberty and that such right is restricted to the context of the administration of justice. The dissent noted that the appellant's claim was far removed from the administration of justice regardless of whether choice of residence can be characterized as a decision of fundamental importance.

a. How is the right to liberty in section 7 circumscribed?

MAJORITY (Harvison Young and Gomery JJ.A.)

The majority's position was that it is the principles of fundamental justice, not an administration of justice threshold, that circumscribe section 7 rights. Section 7 is subject to broad and progressive interpretation, and it has evolved from a right of procedural guarantees to a protection against overbroad state action that deprives individuals of their freedom to make personal decisions of fundamental importance.

The majority articulated that the debate of whether section 7 includes an administration of justice threshold requirement has remained largely unsettled. The Supreme Court has repeatedly denied that an administration of justice threshold necessarily applies to section 7 claims. Additionally, none of the criteria for the principles of fundamental justice suggest that their applicability could be limited to the context of the administration of justice. The majority further explained that the administration of justice threshold requirement was developed in the context of a more limited understanding of the principles of fundamental justice, which has since evolved. Accordingly, the majority found that there was a principled basis for reconsidering the necessity of such a threshold.

DISSENT (Miller J.A.)

The dissent's position was that section 7 only addresses deprivations of liberty from state conduct that occur in the context of the administration of justice. The dissent argued that this administration of justice requirement was the binding precedent set out in New Brunswick (Minister of Health and Community Services) v. G. (J.) and remains the dominant and majority view. Though the Supreme Court has expressed an openness to future reconsideration of that view, it never overturned nor reversed it. The dissent held that the Court was bound by the G. (J.) precedent under the doctrine of vertical precedent, as none of the two narrow exceptions from R. v. Comeau applied: the appellant has neither identified any evolving legislative or social facts, nor pointed to any novel section 7 principles that justify re-evaluating G. (J.).

The dissent further asserted that a purposive interpretation of section 7 would also lead to the conclusion that section 7 requires the administration of justice threshold.

The dissent also cautioned against interpreting the right to liberty as entitling individuals to make decisions of fundamental importance free from state interference. There is a lack of judicial guidance for determining what is "fundamental" and such determination is inherently controversial and subjective.

b. Did the application judge err in finding that La Forest J.'s reasons in Godbout v. Longueuil (City) does not constitute a binding precedent for the proposition that choice of residence is a protected liberty under the right to liberty in section 7?

The appellant relied on La Forest J.'s minority reasoning in Godbout, arguing that Godbout stood for the proposition that an individual's choice of residence is a decision of fundamental importance. The application judge rejected this argument on the basis that La Forest J.'s reasoning in Godbout has only been followed in its general principles but not its conclusions that the choice of residence falls within the ambit of section 7.

MAJORITY (Harvison Young and Gomery JJ.A.) – NO.

The majority agreed with the application judge and found that the Supreme Court of Canada has yet to determine whether section 7 protects an individual's choice of residence. Though the question was raised in Godbout, the case was decided on a different basis and the question has not been revisited by the Supreme Court since. La Forest J.'s view, that an individual's choice of residence falls within the ambit of liberty protected by section 7, was neither endorsed nor rejected by the majority. As such, the door remains open.

DISSENT (Miller J.A.) – NO.

The dissent agreed with the application judge's assertion that La Forest J.'s reasons in Godbout have been followed only in its general principles but not in its conclusion about choice of residence falling within the ambit of the section 7 liberty interest. But the dissent also found that the application judge overstated the extent to which La Forest J.'s general principles in Godbout have been endorsed and that the application judge overlooked the foundational threshold issue regarding the requirement of the administration of justice.

c. If not, is the appellant's choice of residence a liberty interest protected under section 7?

Yes.

The majority maintained that the Supreme Court has repeatedly affirmed the general principle from La Forest J.'s minority reasoning that the right to liberty in section 7 protects a sphere of personal autonomy wherein an individual may make inherently private choices free from state interference. In determining whether the appellant's claim constituted an inherently private choice that should be free some state interference, the majority held that the application judge erred in two main ways.

First, the application judge erred by solely focusing on the appellant's financial motivations and ignoring evidence of other factors that affected his decision to move. The appellant's affidavit stated various personal and quality of life reasons that motivated his move, showing that the decision was also influenced by personal preferences.

Second, the application judge failed to consider the range of motives that may generally inform the choice of an individual's choice of residence. The determination of the appeal would affect the scope of the section 7 liberty interest for other individuals seeking to challenge state-imposed restrictions on their choice of residence. Accordingly, the appellant's own personal reasons for his choice of residence were not the only relevant consideration. The broader range of private considerations that may affect an individual's choice of residence should be considered as well.

The majority concluded that the choice of residence is a deeply personal and consequential decision that affects various aspects of an individual's life.

2. Did the residency requirement for returning officers in the Elections Act deprive the appellant of his section 7 right contrary to the principles of fundamental justice?

Yes.

The majority relied on the proposition from Canada (Attorney General) v. Bedford that a law is overbroad if it "goes too far and interferes with some conduct that bears no connection to its objective". The majority held that for the purpose of the section 1 overbreadth analysis, the objective of the residency requirement in subsections 22(4) and 24(4) of the Elections Act is to ensure that election officers have sufficient local knowledge and the ability to be physically present in the district to run an effective and fair election.

The majority stated that despite the appellant's move, the respondent acknowledged that the appellant had the required knowledge and ability to be present to perform his duties as the returning officer for Carleton. Accordingly, the majority found section 24(4) to be overbroad, as it was unnecessary to achieve the residency requirement's objective. The Court declared that section 24(4) of the Elections Act is of no force or effect.

3. If the Elections Act deprives the appellant of a liberty right, has the respondent proved that the deprivation was justified under section 1 of the Charter?

No.

The majority found that the amendment to section 22(4) proves that there are less drastic means of achieving the purpose of the residency requirement, so the deprivation failed the minimal impairment test.

Ontario Securities Commission v. Cacoeli Asset Management Inc., 2025 ONCA 465

[Gomery J.A]

Counsel:

C. Rempel and C. Harrell, for the appellants

E. Hoult, for the respondent, Ontario Securities Commission

Facts:

The appellants' brought a motion for a stay of Steele J.'s order (the "Receivership Order"), or in the alternative, a partial stay allowing the repayment of shareholder loans. The appellants consist of companies and partnerships under the "Cacoeli" banner, which are involved in the purchase and redevelopment of residential real estate properties. These are partially financed by private investors through various limited partnerships.

The Ontario Securities Commission ("OSC") received a complaint from Cacoeli's former chief financial officer about the appellants' activities and began an investigation into the appellants, Ms. L and Mr. W. After the investigators discovered evidence of the fraudulent diversion of investor funds, the OSC applied for the appointment of a receiver over Cacoeli. This application was supported by some holders of first and second mortgages against properties being developed by Cacoeli. The application was adjourned on terms, including the appointment of the proposed receiver as Monitor.

The Monitor's first report identified several concerns: Ms. L and Mr. W provided incomplete answers to the Monitor's questions and took an extended period of time to respond to its requests for information; Ms. L and Mr. W made payments to related parties without notice to the Monitor and declined to explain the basis for such payments; these payments were made while mortgages on Cacoeli properties were unpaid or underpaid, and some mortgages were in default; and Ms. L and Mr. W had been using a bank account they personally control to receive and handle Cacoeli funds, in which they denied any co-mingling of company funds and personal funds.

Steele J. granted the Receivership Order over all the appellants, concluding that the OSC had shown that there were serious concerns that Cacoeli might have breached the Securities Act. She had found evidence that the appellants repeatedly diverted investor funds from some limited partnerships to other Cacoeli entities and investments, and this was not a permitted use of funds. The appellants appealed the Receivership Order and sought an interim stay. Monahan J.A. issued an interim stay on terms to remain in effect until a determination of the applicants' stay motion (this motion). He ordered that the monitorship would continue for the duration of the interim stay.

The Monitor issued a second report, stating that: the percentage of related-party transactions against Cacoeli's rental revenue had increased and the related-party transactions "diverted significant funds from each of the Real Properties, jeopardizing or restricting each corresponding limited partnership's ability to make mortgage payments on time and in full"; and personal and corporate funds may have been comingled. The Monitor also refused Ms. L's request to authorize payments by the limited partnerships to some of the Cacoeli corporations for their management and other services.

Issues:

Should a stay be granted?
1. Is there a serious issue to be tried?
2. Did the appellants prove that they would suffer irreparable harm if a stay is not granted?
3. What does the balance of convenience favour?
Should a partial stay be granted?

Holding:

Motion dismissed.

Reasoning:

1. No.

The Court concluded that the interests of justice did not favour a stay of the Receivership Order. The Court relied on the factors for a stay set out in RJR-MacDonalds Inc. v. Canada (Attorney General): (1) whether there is a serious issue to be determined; (2) whether the moving party will suffer irreparable harm without a stay; and (3) whether the balance of convenience favours a stay.

a. Yes.

The Court emphasized that RJR-MacDonald's threshold for finding that there is a serious issue to be determined on appeal is low. Once a motion judge is satisfied that the application was neither vexatious nor frivolous, they should proceed to the second and third test, even if they believe that the plaintiff is unlikely to succeed at trial.

b. No.

RJR-MacDonald defined irreparable harm as "harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other". The Court highlighted that an applicant for a stay cannot rely on speculative evidence about irreparable harm. Rather, there must be a high degree of probability that permanent and non-compensable harm will in fact occur.

The appellants relied on two affidavits of Ms. L to establish irreparable harm. The first affidavit asserted that without a stay, Cacoeli's business "will be at an end". The Court found that the appellants' fears were speculative and was not convinced that the appellants' evidence established a high degree of probability that the Receivership Order would end Cacoeli's business. The Court distinguished Ontario v. Shehrazad Non Profit Housing Inc. because in Shehrazad, the explicit purpose of obtaining a receivership order was to empower the receiver to take steps to sell the corporation's housing projects. In contrast, there was no evidence that the Receiver had concluded that the interests of the stakeholders were better served by winding up Cacoeli's business.

Furthermore, the Court found that the Ms. L's second affidavit, asserting that her family relies on income from Cacoeli, was not supported by any disclosure of assets or income. The mere possibility of financial harm is not enough to satisfy the irreparable harm test.

Though the Court was not convinced by the appellants' evidence regarding potential reputational harm, it maintained that even if the appointment of a receiver could cause reputational harm, the harm had already occurred. The Receivership Order had already been made and was in the public record.

Furthermore, the Court rejected the appellants' argument that not granting a stay would cause irreparable harm because they would have to assume the costs of the receivership and would have no right to recover those amounts. The Court stated that the lack of availability of damages was not considered a controlling factor in RJR-MacDonald.

However, the Court agreed that the appeal could be heard on an expedited basis and concluded that the appellants would unlikely suffer any significant irreparable harm through the operations of the Receivership Order.

The appellants relied on six affidavits from investors of a Cacoeli limited partnership, essentially stating that they had never alleged that Cacoeli was in breach of the limited partnership agreement and that they were aware of the Receivership Order and did not support the appointment of a receiver. The Court gave these affidavits little weight, finding them to essentially contain undetailed boilerplate assertions. There was no evidence that the investors were aware of the investigators' findings or the disclosures in the Monitor's report, or that they understood the effect of the Receivership Order. The Court further explained that even if the affidavits were given weight, it would still leave out the 47 other investors whose interests presumptively favoured the enforcement of the Receivership Order.

The Court also distinguished Fraser v. Nova Scotia Barristers' Society, which granted a stay of an order suspending a lawyer's right to practice. The suspension order in that case was made by the provincial bar association's complaints committee on an ex parte (without notice) basis, whereas the Receivership Order was made following a two-day contested hearing in the Superior Court of Justice on four months' notice. Additionally, the receiver appointed to administer the law practice following the suspension recommended that a partial stay of the suspension be granted so that the lawyer could continue to represent two clients. In contrast, the Monitor's second report provided additional support for the immediate implementation of the Receivership Order.

The Court also considered public and third-party interests. The Court found that the public interest would be harmed if a stay was granted. The OSC obtained the Receivership Order in furtherance of its duties under the Securities Act as the regulator of capital markets. The Court emphasized that the public must have confidence in the integrity and rigorous enforcement of the capital markets. Additionally, the Court determined that mortgagees would also be affected by a stay, as they cannot take steps to enforce their security interests under the terms of the monitorship order. Although the Receivership Order would also preclude mortgagees from commencing mortgage enforcement proceedings (just as the OSC's application did), the Court concluded that it would still place them in a better position because the Receiver is required to protect the interests of all stakeholders.

2. No.

The Court noted that the proposed partial stay would not be in the interests of justice, particularly in light of the Monitor's second report. Under the proposed terms of the partial stay, repayment of the shareholder's loans would have priority over repayment of secured debt.

Afolabi v. Law Society of Ontario, 2025 ONCA 464

[Gillese, Roberts and Coroza JJ.A]

Counsel:

A. Rouben, for the respondents/moving parties A.U.V., S.H.R.S., M.A.R.Q., Q.N., G.S., P.B., and A.H.A.

G. Ko and F. Nasca, for the respondents/moving parties A.I.A., H.K., N.D.O., I.T. and F.Z.

J. Haylock, for the respondent/moving party S.S.

S. Dewart and T. Gleason, for the appellant/responding party

Facts:

The Law Society of Ontario (the "LSO") learned that the integrity of the November 2021 bar examinations were compromised. As a result, the LSO directed its Licensing & Accreditation Department ("the Licensing Department") to review the exams. The Licensing Department identified anomalies in about 10% of the November exams. These anomalies suggested that the candidate, intentionally or inadvertently, had advance access to a cheating key that duplicated the exam questions and provided answers. The Licensing Department ultimately deemed void the identified candidates' November exams (the "Exam Decision") and voided their registrations in the LSO licensing process (the "Registration Decision"). Twenty of the identified candidates (the "Applicants") brought applications for judicial review. The Divisional Court heard the applications together and concluded that the Exam Decision was reasonable, however, that the LSO breached the Applicants' rights to procedural fairness in making the Registration Decision. The LSO appealed the determination in respect of the Registration Decision and the Court allowed the appeal. The Applicants moved to have the appeal re-opened.

Issues:

Were the Applicants deprived of their right to have the Registration Decision judicially reviewed?

Holding:

Motion dismissed.

Reasoning:

No.

The Applicants argued the issue of the reasonableness of the Registration Decision before the Divisional Court, both in written submissions and oral argument. The Court found the fact that the Divisional Court heard and decided their judicial review applications to be a full answer to this issue.

Further, the Court rejected the Applicants' claim that they were denied the core constitutional minimum of judicial review due to both courts allegedly failing to consider their reasonableness arguments. These arguments were explicitly addressed in the Court's April 2025 reasons. The Court identified the Applicants' central grievance as relating to the adequacy of the court's reasons regarding the Registration Decision. The rare circumstances that lead to the re-opening of an appeal includes things such as overlooking or misapplying evidence or a clear and compelling legal case on point. The Court found that the alleged inadequacy of reasons did not meet this threshold and did not constitute a "rare circumstance" warranting reopening: Meridian Credit Union v. Baig. Consequently, there was no significant risk of a serious injustice without reconsideration, and it was not in the interests of justice to withdraw the April 2025 Reasons, in which reasonableness had been duly considered.

Finally, the Court concluded that under the relevant LSO by-law and rules, it was sufficient that the Licensing Department found the Applicants had engaged in prohibited actions during the November exams. Proof of knowledge or intent was not required. Therefore, the Divisional Court was not obliged to make findings regarding the Applicants' knowledge or intent. In such instances, the Court found that pursuant to s.18(2) of By-law 4, the Registration Decision was well within the range of possible or acceptable outcomes.

Bongard v. Bullen, 2025 ONCA 473

[Copeland, Wilson and Rahman JJ.A]

Counsel:

A. Hamilton, D. Kim, and O. Flis, for the appellant/respondent by way of cross-appeal

R.A.B., respondent/appellant by way of cross-appeal, acting in person

Facts:

The defendant/appellant/respondent by way of cross-appeal, K.B., brought an anti-SLAPP motion against the plaintiff/respondent/appellant by way of cross-appeal, R.A.B., claiming that R.A.B.'s defamation action was an attempt to limit his freedom of expression on a matter of public interest. R.A.B.'s action was related to a comment in an email from K.B. to his spouse about R.A.B., with whom they contracted to renovate their home and had a falling out, which stated "I would never have hired this person if I knew what terrible actions would come along with him". The motion judge considered the expression at issue and found that it did not meet the first stage requirement of the anti-SLAPP provisions in s. 137.1 of the Courts of Justice Act, namely that the expression relates to a matter of public interest. He found that the expression was a private comment and there was no evidence that the email was disseminated or available to the public at large.

K.B. appealed the motion judge's order dismissing his anti-SLAPP motion. The plaintiff sought leave to cross-appeal the motion judge's costs order, as he ordered no costs on the motion.

Issues:

Did the motion judge err in dismissing the defendant's anti-SLAPP motion?
Did the motion judge err in not awarding costs on the anti-SLAPP motion?

Holding:

Appeal and cross-appeal dismissed.

Reasoning:

1. No

The motion judge did not err in dismissing the anti-SLAPP motion and in concluding that the claim did not arise from an expression by the defendant that related to a matter of public interest, but rather related to a private dispute.

The Court disagreed with the K.B.'s argument that the motion judge erred in law by finding that the fact that the expression at issue in the claim was a private comment between spouses and not shared with the public at large was determinative of whether it was an expression that related to a matter of public interest. The motion judge properly considered the substance of the expression and the context in which it was made in concluding that the proceeding did not arise from expression that related to a matter of public interest.

The Court also disagreed with the K.B.'s argument that the motion judge did not consider that R.A.B. pleaded in his amended statement of claim that K.B.'s communications caused him "a loss of reputation and business opportunity" as context. The motion judge specifically referred to this aspect of the amended statement of claim in his reasons, and notwithstanding this, this aspect of the pleading did not change the private character of the expression at issue. The Court agreed with K.B. that the motion judge erred in referring to "evidence" from his cross-examination when the transcript was never ordered by R.A.B. and was not before the court. However, the Court found that the references to the evidence had no impact on the motion judge's analysis. The fact that there was no evidence that the communication at issue was shared with the public was already evident from the motion materials.

2. No

The motion judge did not err in making no order for costs on the anti-SLAPP motion.

Leave to appeal costs is granted sparingly, and 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. These principles apply to applications for leave to appeal costs orders made under s. 137.1(7) and (8) of the Courts of Justice Act relating to anti-SLAPP motions.

R.A.B. was self-represented before the motion judge. The motion judge considered that self-represented litigants must demonstrate that in representing themselves they have incurred an opportunity cost by foregoing other remunerative activity to be awarded costs. He was not satisfied that R.A.B. demonstrated this, given the lack of detail provided by the respondent on this issue. In addition, the motion judge correctly recognized the starting point in s. 137.1(8) of the Courts of Justice Act that costs not be awarded to the plaintiff/responding party on the motion when an anti-SLAPP motion is dismissed, unless the motion judge determines it is appropriate in the circumstances. Taking those factors into consideration, the motion judge appropriately exercised his discretion to make no order as to costs on the motion.

Sapusak v. Canguard Group Limited, 2025 ONCA 470

[Copeland, Gomery and Wilson JJ.A.]

Counsel:

G.N. Cadogan, for the appellant

N. Colville-Reeves, for the respondent

Facts:

The respondent plaintiff, C.J.S, owned a property located on Royal Terrace Crescent in Bolton, Ontario (the "Property"). The Property was sold in January 2018 under power of sale by a lawyer, R.M., through his companies, who held a mortgage on the Property. R.M. is a defendant in several actions brought by the respondent related to the Property.

After the sale in February 2018, the appellant defendant, Canguard Group Limited, registered a mortgage on the Property from the purchaser under the power of sale, Bangia Property Services Ltd. ("Bangia"). In February 2019, alleging that Bangia had failed to make any payments on the mortgage, the appellant obtained default judgment against Bangia and an order for possession of the Property. The respondent claimed that the sale of the Property under power of sale to Bangia and the appellant's mortgage with it were fraudulent conveyances. Before the summary judgment motion, the sale of the Property to Bangia was set aside by default judgment on the basis that it was a fraudulent transaction.

On the summary judgment motion, the motion judge found that the appellant's mortgage was fraudulent and granted partial summary judgment in the respondent's favour. Given the respondent's evidence regarding the fraudulent conveyance, and in the absence of any response or documentation from the appellant supporting the validity of the mortgage, there was no genuine issue requiring a trial relating to the validity of the mortgage because there was no evidence that the appellant had ever advanced any monies under it. The motion judge ordered that the mortgage in favour of the appellant was void as a result of a fraudulent conveyance and that the Land Registrar delete the mortgage in favour of the appellant from the title to the Property. The appellant appealed from the motion judge's summary judgment.

Issues:

Did the motion judge err in granting partial summary judgment?

Holding:

Appeal dismissed.

Reasoning:

No.

The appellant argued that the motion judge erred in granting summary judgment because he relied on a lawyer's affidavit that contained hearsay. The Court found that the motion judge made no error in deciding not to exclude the lawyer's affidavit. The lawyer's affidavit attached affidavits by the respondent previously filed in the proceeding that provided firsthand evidence. The Court found that the motion judge did not err in effectively allowing the respondent to refile his affidavits as an attachment to a lawyer's affidavit. Beyond this, the lawyer's affidavit provided the procedural history of the litigation and related litigation. This was not hearsay and was properly admissible through the lawyer's affidavit.

The Court found no error in the motion judge's conclusion that the record supported summary judgment in favour of the respondent. The respondent's record supported the determination that the transactions at issue were fraudulent. The appellant did not seek to cross-examine on the respondent's evidence on the motion, despite having months to do so, and filed no evidence to contradict the respondent's evidence. The motion judge considered and applied the correct legal principles in granting partial summary judgment, finding summary judgment was appropriate because there was no risk of inconsistent findings, and resolving the issue of the validity of the appellant's mortgage by summary judgment would be less expensive and more efficient for the parties.

The Court disagreed with the appellant's argument that the motion judge erred by returning the Property to the respondent "mortgage free". This ground apparently referred not to the appellant's mortgage, but to instruments in favour of other parties allegedly registered on title to the Property. The Court found the appellant misconceived the order made by the motion judge, which only concerned the mortgage in favour of the appellant.

Kim v. McIntosh, 2025 ONCA 469

[Lauwers, George and Dawe JJ.A.]

Counsel:

A.M., acting in person

A.K., acting in person

C. Doucet and M. Reilly, for the respondent Office of the Children's Lawyer

Facts:

The parties are parents to four children, aged between 7 to 16 at the date the appeal was argued. Their father, the appellant, resides in Australia and the children reside in Ontario with their mother, the respondent. Steele J. made a final order granting the respondent sole decision-making authority, allowing the appellant up to eight weeks of parenting time, and prohibiting him from removing the children from Ontario. A clinical investigator from the Office of the Children's Lawyer (OCL) produced a report on the children's preferences. While none of them want to move to Australia, they are interested in visiting and most of them want to spend more time with their father than the order allows. The respondent sought to vary the order. The judge dismissed the motion, finding that there had been no material changes to the best interest of the child analysis.

Issues:

Did the motion judge err in her determination that the expression of the children's views were not a material change warranting a variation of the trial judge's order?

Holding:

Appeal dismissed.

Reasoning:

No.

The Court emphasized that the children's views are only one factor in determining their best interests. There is a high threshold before a change is considered material enough for the best interest of the child analysis to be conducted afresh: Gordon v. Goertz. The threshold is set out in N.L. v. R.R.M. and requires : (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parent to meet those needs; (2) that the change materially affects the child; and (3) that the change not be foreseen or could not have been reasonably contemplated by the judge who made the initial order. In this case, the OCL's evidence did not constitute a material change because the motion judge agreed that the appellant presented a "wrongful removal risk" and that he would not likely return any child who visited him in Australia. Further, considering the appellant had already produced much litigation in this case and had very limited financial resources, the Court disagreed with the OCL's argument that if the appellant kept a child in Australia, the respondent could avail herself of relief under the Hague Convention on the Civil Aspects of International Child Abduction. The Court also found the appellant to be ungovernable and held that if it had not dismissed the appeal on the merits, it would have been quashed due to the appellant's failure to pay outstanding costs awards or support orders: A. (A.) v. G. (Z.).

The Court also rejected the appellant's argument that the motion judge's decision breached the principles of natural justice by proceeding on the basis of his original notice of motion without prior notice that she would reject his amended notice, finding that the differences between the two notices were relatively minor.

Bosrock v. Hutchison, 2025 ONCA 472

[Copeland, Wilson and Rahman JJ.A]

Counsel:

R. McGlashan, for the appellant

S.G.H. Bond, for the respondents

Facts:

The trial judge found that the parties were spouses. The trial judge also determined that the respondent was entitled to non-compensatory support. In fixing the amount of monthly spousal support, the trial judge concluded that it was appropriate to use the appellant's actual income, rather than a lower amount that was closer to the Spousal Support Advisory Guidelines' ("SSAG") ceiling of $350,000. The trial judge determined that the duration of support should be five years and six months, rather than the seven-and-a-half years the respondent claimed.

The appellant appealed from the trial judge's order requiring her to pay spousal support to the respondent. She also applied for leave to appeal the trial judge's costs award in favour of the respondent.

Issues:

Did the trial judge err in awarding spousal support to the respondent?
Did the trial judge err in making the costs award in favour of the respondent?

Holding:

Appeal dismissed.

Reasoning:

1. No

The appellant does not take issue with the trial judge's determination that the respondent is entitled to non-compensatory spousal support. She took issue with the amount of spousal support the trial judge ordered her to pay. The appellant alleged that the trial judge committed three errors in fixing the amount of support, each of which was addressed.

First, the Court disagreed with the appellant that the trial judge failed to conduct an individualized and fact-specific assessment in deciding what her income should be for the purpose of applying the SSAG. The trial judge explained why he decided to use the appellant's actual income in calculating the range of spousal support. Specifically, the trial judge carefully considered both parties' budgets. This comparison of the parties' respective financial circumstances was both individualized and fact specific.

Moreover, the trial judge's reasons demonstrated that he was alive to the length of the relationship and the fact that the parties were not married. This is not a case where the trial judge mechanically applied the SSAG without explaining his reasoning. The trial judge set out the range and then explained why he fixed support at the high end of the range. This was a discretionary decision with which the Court saw no basis to interfere.

Second, the Court did not agree with the appellant that the trial judge did not adequately consider that the appellant paid back the mortgage payments the respondent previously made on the parties' jointly owned home when setting spousal support. The trial judge explicitly found that the respondent was not entitled to compensatory support, but only needs-based support. As already discussed, he then reviewed the parties' relative budgets to assess need. Furthermore, the trial judge's reasons adverted to the return of this money and the appellant's argument that this return of capital in their home meant that the respondent had lived in the home rent-free.

Finally, the Court did not agree with the appellant that the trial judge erred in imputing only $50,000 in income to the respondent, rather than the $70,000 that the appellant claimed was appropriate. The trial judge correctly stated that there must be an evidentiary basis on which to impute income. In this case, he explained that there was no such evidence adduced at trial. On that basis, he appropriately accepted the respondent's position that he could earn an income of $50,000. There was no basis to interfere with this conclusion.

2. No

The trial judge's costs decision addressed all the issues disputed at trial: rectification (which was not at issue on appeal and on which the appellant had been successful), whether the respondent qualified as a spouse, and if so, what was the period of cohabitation, and lastly, whether the respondent was entitled to spousal support and in what amount. The trial judge turned his mind to the fact that there was divided success but concluded that the respondent was entitled to costs because the issues of whether the respondent was a "spouse" and the amount and duration of spousal support consumed most of the trial time. There was no basis for the Court to intervene with this discretionary decision. Leave to appeal costs was refused.

SHORT CIVIL DECISIONS

Dramel Limited v, Multani, 2025 ONCA 463

[Simmons, Rouleau and Pepall JJ.A.]

Counsel:

D. Van Sickle, for the appellants

M. Robins and M. Taghivand, for the respondent

Watkins v. Capital Power (PDN) L.P., 2025 ONCA 458

[Simmons, Rouleau and Pepall JJ.A.]

Counsel:

N. Colville-Reeves and R. McGlashan for the appellants

K.A. McCulloch and O. Flis for the respondent

Keywords: Civil Procedure, Representation by Lawyer, Removal of Lawyer of Record, Dismissal for Delay, Rules of Civil Procedure, rr. 15.04(8), 24.01

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

Court Of Appeal Summaries (June 23-27, 2025)

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