Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of July 21-25, 2025. It was a light week.
In Heegsma v. Hamilton (City), the applicants' application to have certain municipal bylaws restricting where homeless people could shelter was dismissed. Prior to that final order, the court had struck certain evidence upon which the applicants had sought to rely. The applicants did not seek leave to appeal those interlocutory orders to the Divisional Court and the application was then heard and dismissed. On appeal, the applicants sought to appeal not only the final order, but the prior interlocutory orders that had struck the evidence. The City moved to strike the grounds of appeal related to the interlocutory orders. The Court dismissed that motion, finding that it could hear those interlocutory appeals under s. 6(2) of the Courts of Justice Act. In addition, the Court determined that the applicants' challenge to the interlocutory orders was not res judicata or an abuse of process because the excluded medical evidence and homelessness statistics were linked to the merits of the final order and the Court would have inevitably granted leave to appeal the interlocutory orders had leave been sought.
In 2724582 Ontario Inc. v. Gold, the respondent entered into a series of mortgage transactions with the appellants, one of whom was a realtor, with the other appellants being related to the realtor (without the borrower being made aware of those relationships). The realtor had his client sign a Release that barred complaints to RECO, and the respondent later challenged its enforceability. The Court upheld the motion judge's finding that the Release was void and unenforceable due to both an illegal provision (prohibiting regulatory complaints) and unconscionability.
In Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., the moving party sought a Norwich order to obtain further disclosure from the responding party as well as its insurers regarding a finding of fraud and judgment that was under appeal. The Court dismissed the motion, holding, among other things, that Norwich orders are an equitable, discretionary remedy intended for pre-trial proceedings, and were not available at the appellate stage.
Wishing everyone an enjoyable weekend.
Table of Contents
Civil Decisions
Heegsma v. Hamilton (City), 2025 ONCA 554
Keywords: Constitutional Law, Charter Claims, Poverty Law, Municipal Law, By-Laws, Civil Procedure, Appeals, Jurisdiction, Interlocutory Orders, Evidence, Res Judicata, Abuse of Process, Canadian Charter of Rights and Freedoms, sections 1, 7, and 15, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b), 6(2), 19(1)(b), Rules of Civil Procedure, rr. 1.04, 51, 61.03(1)(b), Cole v. Hamilton (City), (2002), 60 O.R. (3d) 284 (C.A.), Mader v. South Easthope Mutual Insurance Co., 2014 ONCA 714, Brown v. Hanley, 2019 ONCA 395, Carcillo v. Ontario Major Junior Hockey League, 2024 ONCA 685, P1 v. XYZ School, 2021 ONCA 901, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), 2099082 Ontario Limited v. Varcon Construction Corporation, 2020 ONCA 202, Azzeh v. Legendre, 2017 ONCA 385, Blair v. Ford, 2021 ONCA 841
2724582 Ontario Inc. v. Gold, 2025 ONCA 531
Keywords: Real Estate, Mortgages, Refinancing, Release Form, Default, Void and Unenforceable, Reversible errors, Rules of Civil Procedure, r. 21.01
Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2025 ONCA 543
Keywords: Contracts, Torts, Fraud, Fraudulent Misrepresentation, Conversion, Breach of Fiduciary Duty, Knowing Receipt, Knowing Assistance, Unjust Enrichment, Civil Procedure, Documentary Discovery, Norwich Orders, Appeals, Limitations Act, 2002, S.O. 2002, c. 24 Sch. B., Rules of Civil Procedure, r. 61.16(1), Akagi v. Synergy Group (2000) Inc., 2015 ONCA 771, Amphenpol Canada Corp v. Sundaram, 2019 ONCA 932, City of Toronto v. Polai, [1970] 1 O.R. 483 (C.A.), GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619 , Gemeinhardt v. Babic, 2016 ONSC 4707, Mitsui & Co. Ltd. v. Nexen Petroleum UK Ltd., [2005] 3 All E.R. 511, Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.)., Rogers Communications Inc. v. Voltage Pictures. LLC, 2018 SCC 38, Seismotech IP Holdings Inc. v. Ecobee Technologies ULC, 2024 FCA 205
Short Civil Decisions
Ricketts v. Veerisingnam, 2025 ONCA 541
Keywords: Contracts, Real Property, Leases, Residential Tenancies, Remedies, Eviction, Civil Procedure, Leave to Appeal, Stay Pending Appeal, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311
Keywords: Costs
Power v. Home Trust Company, 2025 ONCA 544
Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Appeals, Extension of Time, Rules of Civil Procedure, r. 2.1.01, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Girao v. Cunnigham, 2020 ONCA 260, Grand River Conservation Authority v. Ramdas, 2021 ONCA 815
Bank of Montreal v. 11977636 Canada Inc., 2025 ONCA 561
Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Enforcement, Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Leave to Appeal, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 243(1), 193(e), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Menzies Lawyers Professional Corporation v. Morton, 2015 ONCA 553, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225
CIVIL DECISIONS
Heegsma v. Hamilton (City), 2025 ONCA 554
[Trotter, Thorburn, and Wilson JJ.A.]
Counsel:
B. Shores and J.L. King, for the moving party/respondent, City of Hamilton
S. Choudhry, S. Crowe and W. Poziomka, for the responding parties/appellants, Kristen Heegsma et al.
Keywords: Constitutional Law, Charter Claims, Poverty Law, Municipal Law, By-Laws, Civil Procedure, Appeals, Jurisdiction, Interlocutory Orders, Evidence, Res Judicata, Abuse of Process, Canadian Charter of Rights and Freedoms, sections 1, 7, and 15, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b), 6(2), 19(1)(b), Rules of Civil Procedure, rr. 1.04, 51, 61.03(1)(b), Cole v. Hamilton (City), (2002), 60 O.R. (3d) 284 (C.A.), Mader v. South Easthope Mutual Insurance Co., 2014 ONCA 714, Brown v. Hanley, 2019 ONCA 395, Carcillo v. Ontario Major Junior Hockey League, 2024 ONCA 685, P1 v. XYZ School, 2021 ONCA 901, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), 2099082 Ontario Limited v. Varcon Construction Corporation, 2020 ONCA 202, Azzeh v. Legendre, 2017 ONCA 385, Blair v. Ford, 2021 ONCA 841
Facts:
Fourteen unhoused persons challenged municipal by-law "sheltering restrictions" and evictions as breaches of their sections 1, 7, and 15 Charter rights. There were two interlocutory orders: (1) Ground 3 of the notice of Appeal on Nov 12, 2024, which redacted physicians' affidavits on the responding parties' harm; and (2) Ground 1 on Dec 4, 2024, which struck volumes of statistical data on homelessness.
The application judge dismissed the responding parties' application as a final order on December 23, 2024. The responding parties appealed the final order and sought to appeal those interlocutory evidentiary rulings at the same time. The moving party moved to strike these grounds and the excluded documents from the appeal record.
Issues:
1. Did the Court have jurisdiction to hear the appeal of the two interlocutory orders?
2. Would an order allowing the appeal of the interlocutory orders to be heard with the appeal of the final order run counter res judicata or be an abuse of process?
Holding:
Motion dismissed.
Reasoning:
1. Yes.
The Court held it could hear the interlocutory appeals together with the final order. That is, the interlocutory and final orders were sufficiently interrelated that the Court of Appeal would have inevitably granted the interlocutory appeal. Section 6(2) of the Courts of Justice Act provides the Court of Appeal jurisdiction to decide appeals relating to matters already taken to the Court of Appeal. This applies even without seeking leave from the Divisional Court. In doing so, the Court highlighted its goal to promote judicial economy and expediency as set out in Rule 1.04 of the Rules of Civil Procedure.
2. No.
The Court held that granting leave would neither be res judicata nor an abuse of process. The Court decided it would have inevitably granted leave to appeal the interlocutory orders because of the significant overlap between the interlocutory and final orders and the issues they considered.
Among the interlocutory orders, Ground 1 was linked to the final order because it provided the relevant evidence to the issues of how the evictions and their execution deprived the responding parties section 1, 7, and 15 Charter rights. The physician's evidence in Ground 3 was also pivotal to the final order because it discussed the mental and physical effect resulting from the evictions and barriers in accessing shelter. The Court held these negative impacts were interrelated to the claims of violated Charter rights.
2724582 Ontario Inc. v. Gold, 2025 ONCA 531
[Coroza, Madsen and Rahman JJ.A.]
Counsel:
O. Hoque, for the appellants
D. McConville, for the respondent
Keywords: Real Estate, Mortgages, Refinancing, Release Form, Default, Void and Unenforceable, Reversible Errors, Rules of Civil Procedure, r. 21.01
Facts:
In 2019, the respondent, RG, was introduced to a realtor, SK, when she was trying to refinance a second mortgage on her properties. From then until 2022, the respondent entered into several mortgage transactions with third parties that were brokered by SK.
The lender for the first two mortgages was SA, who was SK's mother. These mortgages were refinanced with mortgages from DD's company, 2707551 Ontario Inc. ("270"). DD was SK's girlfriend and real estate brokerage partner. The 270 mortgages were subsequently refinanced. One of the 270 mortgages was refinanced by a mortgage from 2724582 Ontario Inc. ("272"), a company directed by SA. The respondent's evidence is that she did not know about SK's relationship with SA or DD. With each successive refinancing, the respondent's borrowing costs and level of debt increased. SK, SA, DD, 270, and 272 are the appellants in this appeal.
On May 6, 2022, following a complaint made by the respondent to the Real Estate Counsel of Ontario, the respondent signed a release prepared by SK (the "Release"). In exchange for the respondent paying $700 and waiving the default fees, she released 272, 270, SK, DD and their lawyers from "any and all actions" in connection with the mortgage transactions. The Release also barred the parties from making any complaints to regulatory bodies.
In August 2022, SK sourced another mortgage for the respondent
from JP (a non-party to this appeal), which was applied to the 272
mortgage. In February 2023, the 272 mortgage went into default. 272
delivered a notice of sale and issued a statement of claim. In June
2023, JP delivered a notice of sale and issued a statement of
claim.
The appellants alleged that as of August 2022, the respondent owed
them $848,679.31. Over the course of the mortgage transactions,
approximately $267,000.00 in actual funds were advanced to the
respondent.
Three proceedings arising from the mortgage transactions were consolidated and were case managed. In scheduling the motion, the case management judge commented in his endorsement that his determination of the threshold issue may amount to partial summary judgment, but that this was the process the parties had agreed to because doing so would save considerable time, money and effort if the Release was found to be enforceable.
The threshold issue before the motion judge was the enforceability of the Release. The motion judge declared that the Release was unconscionable, void and unenforceable, as per r. 21.01(1)(a) of the Rules of Civil Procedure.
Issues:
1. Did the motion judge err in determining the threshold question under r. 21.01(1)(a) because it was not a "question of law raised by a pleading"?
2. Did the motion judge err in law by making adverse findings in her reasons about the mortgage scheme?
3. Did the motion judge misapprehend material evidence in her unconscionability analysis?
Holding:
Appeal dismissed.
Reasoning:
1. No.
The appellant argued that the threshold question before the motion judge was not "a question of law raised by a pleading" and the motion judge inappropriately determined the question under r. 21.01(1)(a). However, the appellants were the ones who sought relief under s. 21.01(1)(a). The motion judge cannot be faulted for framing the motion as a r. 21 motion when the parties framed the motion themselves in that way. The mere fact that the result was unfavourable to them does not constitute reversible error.
The motion judge was satisfied that the Release contained an illegal provision that barred the respondent from making any regulatory complaints. This was sufficient for the motion judge to declare the entire Release void under r. 21.01(1)(a).
2. No.
The motion judge found that the Release was unenforceable because there was evidence that an improvident bargain had been struck. In reaching this conclusion, she found that the improvident bargain was established by the concealment of non-arm's length lenders, numerous illegal charges levied by the appellants on the mortgages, and borrowing costs incurred by the respondent which were manifestly unfair.
In the respondent's oral argument, it was noted that the appeal materials were silent on the unconscionability of the mortgage scheme. The respondent stated that it was not necessary for the motion judge to make findings on this issue and a trial judge at a later proceeding is not bound by the motion judge's findings regarding the mortgage scheme.
The Court saw no error in the motion judge's reference to the mortgage scheme and no risk of inconsistent findings. There was no confusion about the nature of the order that was being made. Being unsuccessful on the motion meant that the appellants were disentitled from raising the issue of the Release at trial. It did not prohibit the parties from making arguments about the mortgage scheme.
3. No.
The Court did not accept the appellants' submission that the motion judge misapprehended material evidence in her unconscionability analysis. The motion judge's reasons are thorough and careful. They did not reveal any errors in her treatment of evidence.
Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2025 ONCA 543
[Madsen J.A.]
Counsel:
S.M, acting in person and as representative for the appellants/moving parties, Eaton Equipment Ltd., Intellectual Inventive Inc., Citrus Grove Mortgageco Ltd., Appslack Ltd., Appakiss Ltd., and Appnatty Ltd
No one appearing for the appellants/moving parties
C. Pendrith and J.L. Kuredjian, for the respondent/responding party, Canadian Tire Corporation, Limited
Keywords: Contracts, Torts, Fraud, Fraudulent Misrepresentation, Conversion, Breach of Fiduciary Duty, Knowing Receipt, Knowing Assistance, Unjust Enrichment, Civil Procedure, Documentary Discovery, Norwich Orders, Appeals, Limitations Act, 2002, S.O. 2002, c. 24 Sch. B., Rules of Civil Procedure, r. 61.16(1), Akagi v. Synergy Group (2000) Inc., 2015 ONCA 771, Amphenpol Canada Corp v. Sundaram, 2019 ONCA 932, City of Toronto v. Polai, [1970] 1 O.R. 483 (C.A.), GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619 , Gemeinhardt v. Babic, 2016 ONSC 4707, Mitsui & Co. Ltd. v. Nexen Petroleum UK Ltd., [2005] 3 All E.R. 511, Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.)., Rogers Communications Inc. v. Voltage Pictures. LLC, 2018 SCC 38, Seismotech IP Holdings Inc. v. Ecobee Technologies ULC, 2024 FCA 205
Facts:
Canadian Tire Corporation, Limited ("CTC") contracted with Servantage Dixie Sales Canada Inc. ("Dixie") to administer a product repair program, which Dixie subcontracted to the appellants. Between 2015 and 2018, CTC discovered that nearly all repair billings submitted by the appellants were fraudulent, resulting in over $3.2 million in improper payments. CTC sued for damages related for fraud and was granted summary judgment. The appellants sought to set aside this order and seek summary judgment in their own favour. The appellants also requested to have a motion scheduled in Superior Court to seek further disclosure from CTC's non-party insurers under a "Norwich-Type" order.
Issues:
Is it appropriate to grant a Norwich order on a motion as a part of the appeal process?
Holding:
Motion dismissed.
Reasoning:
No.
Norwich orders are an equitable pre-trial remedy to help a rights holder in the face of apparent wrongdoing: Norwich Pharmacal Co. v. Customs and Excise Rogers, Communications Inc. v. Voltage Pictures, LLC., Amphenpol Canada Corp v. Sundaram, Seismotech IP Holdings Inc. v. Ecobee Technologies. The jurisprudence does not suggest a Norwich order to be available on a motion within the appeal process. Accordingly, the Court found that it was inappropriate to seek such relief at this stage in the proceeding, holding that the time to request the production of insurance policies and documents related to any insurance claim was during the trial process, not on an appeal.
Further, the Court found that even if it had been persuaded that a Norwich order may be available on a motion pending appeal, it would not be appropriate in this case. While a party seeking an equitable remedy must come to the court with clean hands, the appellants had already been found to have created a "fraudulent scheme". Accordingly, while that decision was under appeal, it appeared that the motion judge's findings of fact will be difficult to disturb given the standard of review.
SHORT CIVIL DECISIONS
Ricketts v. Veerisingnam, 2025 ONCA 541
[Lauwers J.A.]
Counsel:
A. J. Johnson, for the appellant
S. V. and K. S., acting in person
Keywords: Contracts, Real Property, Leases, Residential Tenancies, Remedies, Eviction, Civil Procedure, Leave to Appeal, Stay Pending Appeal, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311
[Roberts, Zarnett and Gomery JJ.A.]
Counsel:
P. Jervis and S. Fiddes, for the appellants
R. Shastri and D. Winer, for the respondent
Keywords: Costs
Power v. Home Trust Company, 2025 ONCA 544
[Lauwers J.A.]
Counsel:
P. P. and D. D, acting in person
J. Kukla, for the respondent
Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Appeals, Extension of Time, Rules of Civil Procedure, r. 2.1.01, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Girao v. Cunnigham, 2020 ONCA 260, Grand River Conservation Authority v. Ramdas, 2021 ONCA 815
Bank of Montreal v. 11977636 Canada Inc., 2025 ONCA 561
[Lauwers J.A.]
Counsel:
A. Misir, for the appellant
S. L. Graff and M. Lici, for the respondent
Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Enforcement, Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Leave to Appeal, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 243(1), 193(e), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Menzies Lawyers Professional Corporation v. Morton, 2015 ONCA 553, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225
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