Court Of Appeal Summaries (November 10 – 14, 2025) - Civil Law

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Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of November 10.

In a 133-page decision in Reference re iGaming Ontario, the Court, on a statutory reference, considered whether Ontario's provincially run online gaming scheme would remain lawful and not contravene the Criminal Code if it allowed Ontario players to engage in peer‑to‑peer play with players outside Canada. A majority held the proposed model would be lawful under Criminal Code s. 207(1)(a) in light of text, context, and purpose of the legislative scheme, and emphasizing Ontario's ongoing control over the scheme for its players. The dissenting judge would have found the scheme unlawful.

In National Steel Car v. Hamilton, the Court mostly upheld a trial judgment that found both the City of Hamilton and ArcelorMittal Dofasco equally responsible for chronic flooding of NSC's property due to decades of neglect, obstruction, and mismanagement of a nearby drainage channel. The Court affirmed the trial judge's findings on liability, mitigation, and punitive damages, concluding that both defendants engaged in serious and sustained misconduct that justified equal appointment and censure. The only modification to the trial judge's order was to slightly narrow one paragraph of the injunction requiring the defendants to remediate their property to avoid any suggestion that the defendants had been ordered to guarantee through their remediation that there would be no more flooding.

In Nowakowski v. Campbell, the Court held that under s. 192(2) of the Highway Traffic Act, co-owners of a motor vehicle were jointly vicariously liable for the negligence of the driver if either one consented to a driver's possession or operation of the vehicle, and both their insurance covered the loss.

In McCormack v. Evans, the Court upheld the dismissal of a former Toronto police officer's civil claims for malicious prosecution and related torts arising from a corruption investigation against him in which his communications had been intercepted under a wiretap authorization. The appellant alleged that the authorization had been tainted by the investigator's misdescription of two sources as confidential informants and that police had lacked both subjective and objective reasonable grounds to charge him. The Court found the intercepted communications properly admissible, the deception insufficient to invalidate the authorization, and the evidence strongly supportive of reasonable and probable grounds.

In Angelillo v Mughal, both parties appealed a final order in divorce proceedings denying the father's relocation request and establishing new parenting time and child support arrangements. On appeal, the Court held that the trial judge erred in law by failing to apply s. 16.93(2) of the Divorce Act, which placed the burden of proof on the mother to show why relocation with the father (who was primary caregiver) was not in the child's best interests. The dismissal of the relocation request was therefore set aside and remitted for a fresh hearing. The parenting order was otherwise entitled to deference, with all other relief sought on the father and mother's appeals denied.

Wishing everyone an enjoyable weekend.

Civil Decisions

Nowakowski v. Campbell, 2025 ONCA 762

Keywords: Contracts, Interpretation, Insurance, Motor Vehicles, Coverage, Vicarious Liability, Owners, Statutory Interpretation, Highway Traffic Act, R.S.O. 1990, c. H.8, s. 192(2), Insurance Act, R.S.O. 1990, c. I-8, s. 239(1), Legislation Act, 2006, S.O. 2006, c.21, Sched. F, s. 67, Rules of Civil Procedure, r. 21.01(1)(a), Mazur v. Elias (2005), 75 O.R. (3d) 299 (C.A.), Cummings v. Budget Car Rentals Toronto Ltd. (1996), 29 O.R. (3d) 1 (C.A.), Housen v. Nikolaisen, 2002 SCC 33, Thompson v. Bourchier, [1933] O.R. 525 (C.A.), Henwood v. Coburn, 2007 ONCA 882, Connors v. D-Angelo, 2017 ONSC 1104, Fernandes v. Araujo, 2015 ONCA 571, Barham v. Marsden, [1960] O.J. No. 60 (C.A.)

Reference re iGaming Ontario, 2025 ONCA 770

Keywords: Alcohol and Gaming, Regulation, Online Gaming, Criminal Law, Statutory Interpretation, Constitution Act, 1867, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 8, Criminal Code, R.S.C. 1985, c. C-46, s. 207 and 204, Alcohol and Gaming Commission of Ontario Act, 2019,S.O. 2019, c. 15, Sched. 1; Gaming Control Act, 1992, S.O. 1992, c. 24, iGaming Ontario Act, 2024, S.O. 2024, c. 20, Sched. 9, Interpretation Act, R.S.C. 1985, c. I-21, s. 10, Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c. 38, s. 13, R. v. 974649 Ontario Inc., 2001 SCC 81, R. v. Hape, 2007 SCC 26, R. v. D.F., 2024 SCC 14, R. v. Sharma, 2022 SCC 39, R. v. Ghotra, 2021 SCC 12, R. v. Langan, 2020 SCC 33, R. v. Kirkpatrick, 2022 SCC 33, R. v. Hutchinson, 2014 SCC 19, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Euro-Excellence Inc. v. Kraft Canada Inc., 2007 SCC 37, Piekut v. Canada (National Revenue), 2025 SCC 13, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43, British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, Canada v. Loblaw Financial Holdings Inc., 2021 SCC 51, McLean v. British Columbia (Securities Commission), 2013 SCC 67, M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961, MediaQMI inc. v. Kamel, 2021 SCC 23, Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Beals v. Saldanha, 2003 SCC 72, Sharp v. Autorité des marchés financiers, 2023 SCC 29, Siemens v. Manitoba (Attorney General), 2003 SCC 3, Canada (Attorney General) v. Bedford, 2013 SCC 72, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, Reference re Earth Future Lottery, 2003 SCC 10, Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, Sanis Health Inc. v. British Columbia, 2024 SCC 40, British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R 1077, L'Association St. Jean-Baptiste de Montreal v. Brault (1900), 30 S.C.R. 598, IBEW Local 773 v. Lawrence, 2018 SCC 11, Callidus Capital Corp. v. Canada, 2018 SCC 47, Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252, Canadian Security Intelligence Services Act (CA) (Re), 2021 FCA 165, John v. Ballingall, 2017 ONCA 579, Woods (Re), 2021 ONCA 190, Moreira v. Ontario Lottery and Gaming Corporation, 2013 ONCA 121, Belwood Lake Cottagers Association Inc. v. Ontario (Environment and Climate Change), 2019 ONCA 70, Reference re iGaming Ontario, 2024 ONCA 569, University Health Network v. Ontario (Minister of Finance) (2001), 208 D.L.R. (4th) 459 (Ont. C.A.), R. v. Walsh, 2021 ONCA 43, Ontario College of Pharmacists v. 1724665 Ontario Inc. (Global Pharmacy Canada), 2013 ONCA 381, Canadian Security Intelligence Services Act (CA) (Re), 2021 FCA 165, Reference Re Earth Future Lottery (P.E.I.), 2002 PESCAD 8, 211 Nfld. & P.E.I.R. 311, Mohawk Council of Kahnawà:ke v. iGaming Ontario, 2024 ONSC 2726, R. v. Andriopoulos, [1993] O.J. No. 3427 (Gen. Div.), Therrien c. Directeur général des élections du Québec, 2022 QCCA 1070, R. v. Anand, 2020 NSCA 12, Keystone Bingo Centre Inc. v. Manitoba Lotteries Foundation and Manitoba (1990), 69 Man. R. (2d) 63 (C.A.), Great Canadian Casino Company Ltd. v. Surrey (City) et al, 1999 BCCA 619

National Steel Car Limited v. Hamilton (City), 2025 ONCA 765

Keywords: Real Property, Torts, Nuisance, Strict Liability (Rylands v Fletcher), Negligence, Concurrent Tortfeasors, Apportionment of Fault, Remedies, Punitive Damages, Mandatory Injunctions, Defences, Mitigation, Negligence Act, R.S.O. 1990, c. N.1., s. 1 and 4, Rylands v. Fletcher, [1868] UKHL 1, L.R. 3 H.L. 330, Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, Martin v. Listowel Memorial Hospital (2000), 51 O.R. (3d) 384 (C.A.), Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219 (C.A.), Rizzi v. Marvos, 2008 ONCA 172, 236 O.A.C. 4, Heller v. Martens, 2002 ABCA 122, Parent v. Janandee Management Inc., 2017 ONCA 922, Ault v. Canada (Attorney General), 2011 ONCA 147, Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, Aquino v. Bondfield Construction Co., 2024 SCC 31, Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, Whiten v. Pilot Insurance Co., 2002 SCC 18, Business Development Bank of Canada v. 170 Willowdale Investments Corp., 2025 ONCA 251

McCormack v. Evans, 2025 ONCA 767

Keywords: Torts, Malicious Prosecution, Negligent Prosecution, Negligent Investigation, Misfeasance in Public Office, Intentional Infliction of Emotional Distrees, Charter Claims, Evidence, Admissibility, Intercepted Communications, Canadian Charter of Rights and Freedoms, s. 8, s. 11(b), s. 24(1), s. 24(2), Liquor Licence Act, R.S.O. 1990, c. L.19, Police Services Act, R.S.O. 1990, c. P.15, R. v. McCormack et al., 2006 ONCJ 320, R. v. McCormack, 2009 CanLII 76382 (Ont. S.C.), R. v. McCormack, 2009 CarswellOnt 7019 (S.C.), Miazga v. Kvello Estate, 2009 SCC 51, Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, R. v. Barros, 2011 SCC 51, R. v. Morelli, 2010 SCC 8, R. v. Araujo, [2000] 2 S.C.R. 992, R. v. National Post, 2010 SCC 16, R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, Boucher v. The Queen, [1955] S.C.R. 16, Krieger v. Law Society of Alberta, 2002 SCC 65, R. v. Nixon, 2011 SCC 34, R. v. Anderson, 2014 SCC 41, R. v. Varennes, 2025 SCC 22, National Industries Inc. v. Kirkwood, 2023 ONCA 63, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, R. v. Bisson, [1994] 3 S.C.R. 1097, R. v. Paryniuk, 2017 ONCA 87, R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R, R. v. Garofoli, [1990] 2 S.C.R. 1421, Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), R. v. Grant, 2009 SCC 32, R. v. Beaver, 2022 SCC 54, R. v. McGregor, 2023 SCC 4, R. v. McColman, 2023 SCC 8, R. v. Zacharias, 2023 SCC 30, P. (D.) v. Wagg, 71 O.R. (3d) 229 (C.A.), RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, Imperial Oil v. Jacques, 2014 SCC 66, Upchurch v. Oshawa (City), 2014 ONCA 425, Payne v. Mak, 2018 ONCA 622, R. v. Storrey, [1990] 1 S.C.R. 241, 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, Flood v. Boutette, 2021 ONCA 515, M.W. v. Halton (Police Services Board), 2020 ONCA 463

Angelillo v. Mughal, 2025 ONCA 769

Keywords: Family Law, Parenting, Relocation, Best Interests of the Child, Child Support, Civil Procedure, Burden of Proof, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16.93(2). 16.93(3), Berry v. Berry, 2011 ONCA 705, Housen v. Nikolaisen, 2002 SCC 33, Barendregt v. Grebliunas, 2022 SCC 22, Shipton v. Shipton, 2024 ONCA 624, D.A. Rollie Thompson, "Legislating About Relocating Bill C-78, N.S. and B.C.", (2019) 38 Can. Fam. L.Q. 219

Short Civil Decisions

Rizzuto v. Hamilton-Wentworth Catholic District School Board, 2025 ONCA 773

Keywords: Torts, Negligence, Duty to Investigate, Standard of Care, Clements v. Clements, 2012 SCC 32

MCC Mortgage Holdings Inc. v. Rutaihwa, 2025 ONCA 778

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Appeals, Extension of Time, Stay Pending Appeal, Rules of Civil Procedure, r. 63.02(1), 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Laski v. Laski, 2016 ONCA 337, Wardlaw v. Wardlaw, 2020 ONCA 286, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Morguard Residential v. Mandel, 2017 ONCA 177, Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 859, Ducharme v. Hudson, 2021 ONCA 151

Chen v. Huang, 2025 ONCA 776

Keywords: Contracts, Real Property, Mortgages, Enforcement, Corporations, Oppression, Fraudulent Conveyances, Business Corporations Act, R.S.O. 1990, c. B.16

Bombardier Inc. v. Alstom Rail Sweden AB, 2025 ONCA 779

Keywords: Contracts, Arbitration Agreements, Civil Procedure, Orders, Stay Pending Arbitration, Appeals, Jurisdiction, Final or Interlocutory, International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 , s.9, Courts of Justice Act, R.S.O. 1990, c. C. 43, Paulpillai Estate v. Yusuf, 2020 ONCA 655, Distributors Ltd. v. JH Whittaker & Sons Limited, 2023 ONCA 260

CIVIL DECISIONS

Nowakowski v. Campbell, 2025 ONCA 762

[Huscroft, Coroza and Monahan JJ.A.]

Counsel:

M.M. O'Donnell and C.L. Foster, for the appellant

B.S.M. Chapman, for the respondent

facts:

The defendants, M and LB, were joint registered owners of a vehicle (the "Vehicle"). M held a policy of insurance for the Vehicle with Economical (the "Economical Policy"). A third party, C, had been involved in an accident while operating the Vehicle. C and LB were not named insureds or listed drivers on M's Economical Policy.

The plaintiff commenced an action against M, LB, C, and the plaintiff's own insurer, Allstate Insurance Company of Canada ("Allstate"), which was the respondent on the appeal. The parties brought a motion pursuant to r. 21.01(1)(a) of the Rules of Civil Procedure and sought a determination of the issue before trial on the basis of an agreed statement of facts. Economical's position on the motion was that M's personal consent to C's possession of the Vehicle was required to ground liability under s. 192(2) of the Highway Traffic Act (the "HTA") and for her Economical Policy to respond pursuant to s. 239(1) of the Insurance Act. The motion judge found that M's Economical Policy provided insurance coverage for the plaintiff's claim against M on the basis of either s. 192(2) of the HTA and/or s. 239(1) of the Insurance Act.

Economical appealed and sought a declaration that, where there were two or more owners of a motor vehicle, any owner who did not provide consent to the possession or operation of the motor vehicle by a non-owner was not vicariously liable under s. 192(2) of the HTA and their motor vehicle policy was not engaged under s. 239(1) of the Insurance Act. Allstate sought dismissal of the appeal and confirmation of the motion judge's order.

issues:

Did the motion judge err in finding that a co-owner of a motor vehicle was liable for loss or damage resulting from the negligent operation of the vehicle where a second co-owner consented to the vehicle being in the possession of a non-owner, but the first owner did not?

holding:

Appeal dismissed.

reasoning:

No. The Court found that if either co-owner had consented to the possession of their jointly owned vehicle by a non-owner, both were vicariously liable pursuant to, and in accordance with, s. 192(2) of the HTA. Section 192(2) of the HTA made an owner of a motor vehicle liable for any loss or damage caused by negligence in its operation on a highway, unless the motor vehicle was without the owner's consent in the possession of some person other than the owner. The reference in the opening words of s. 192(2) to "the owner" included "the owners" in circumstances where a vehicle had more than one owner. If LB consented to C's possession and/or operation of the vehicle, then the vicarious liability of both LB and M under s. 192(2) was engaged.

Economical was correct that s. 239(1) of the Insurance Act did not establish a vehicle owner's liability but merely required that any liability legally imposed on an owner in respect of certain losses or damage be covered by the owner's motor vehicle insurance policy. However, that error made no difference in these circumstances. Both co-owners were liable under the HTA if either one of them consented to the possession of their vehicle by a non-owner, since s. 239(1) of the Insurance Act required that any such liability be covered by the relevant owner's insurance policy.

Reference re iGaming Ontario, 2025 ONCA 770

[Tulloch C.J.O., Gillese, van Rensburg, Hourigan and Dawe JJ.A.]

Counsel:

J. Hunter, A. Sinnadurai, H. Evans and J. Boyczuk, for the Attorney General of Ontario

M. Milne-Smith, C. Sethi and S. Cormack, for the interveners Atlantic Lottery Corporation, British Columbia Lottery Corporation, Lotteries and Gaming Saskatchewan and Manitoba Liquor and Lotteries Corporation

N. Kennedy, for the intervener Mohawk Council of Kahnawà:ke

G. Hamilton and T. Markin, for the interveners NSUS Group Inc. and NSUS Limited

S. Hutchison, K. Flanagan and B. Chung, for the intervener Flutter Entertainment plc

D. Bush, A. Goldenberg, G. Ringkamp and R. Abrahams, for the intervener the Canadian Gaming Association

facts:

This was a 133-page decision. By Order in Council (OIC), the Lieutenant Governor in Council referred a question to the Court of Appeal on February 2, 2024, pursuant to s. 8 of the Courts of Justice Act. The question was:

Would legal online gaming and sports betting remain lawful under the Criminal Code if its users were permitted to participate in games and betting involving individuals outside of Canada as described in the attached Schedule? If not, to what extent?

Five entities or groups were granted leave to intervene: the Canadian Gaming Association; Flutter Entertainment plc; Mohawk Council of Kahnawà:ke; NSUS Group Inc. and NSUS Limited; and the Atlantic Lottery Corporation, British Columbia Lottery Corporation, Lotteries and Gaming Saskatchewan, and Manitoba Liquor and Lotteries Corporation.

In Ontario, internet gaming is governed by the federal Criminal Code, and three provincial statutes: the Alcohol and Gaming Commission of Ontario Act, the Gaming Control Act, and its regulations; and the iGaming Ontario Act, 2024. Section 207 of the Criminal Code provides that notwithstanding any of the provisions of Part VII relating to gaming and betting, it is lawful: for the government of a province, either alone or in conjunction with the government of another province, to conduct and manage a lottery scheme in that province, or in that and the other province, in accordance with any law enacted by the legislature of that province.

The term "lottery scheme" in s. 207 is defined by s. 207(4) to mean: a game or any proposal, scheme, plan, means, device, contrivance or operation described in any of paragraphs 206(1)(a) to (g), whether or not it involves betting, pool selling or a pool system of betting. Under Ontario's current internet gaming and sports betting scheme, internet gaming is offered to players in Ontario by a number of private gaming companies who have entered into agreements with iGaming Ontario ("iGO"). iGO is an Ontario government corporation and an agent of the Crown in right of Ontario. The Court referred to these private gaming companies as "iGO Operators".

The Operating Agreements required the iGO Operators to take steps to limit access to the iGO Sites to players who are physically located in Ontario. The OIC noted that under the existing framework:

Players participating in legal online gaming and sports betting must be located in Ontario and are not entitled to participate in games or betting involving players located outside of Ontario.

The AGO referred to this as a "closed" or "restricted" liquidity scheme because the funds provided by the participating players were limited geographically. The games offered on the iGO Sites fell within the broad definition of "lottery scheme" in s. 207(4) of the Criminal Code. The reference questions were predicated on that assumption and the Court accepted that assumption for the purpose of its decision.

The Schedule to the OIC described a Proposed Model for internet gaming in which players in Ontario "will be able to participate in peer-to-peer games, including games of chance and mixed chance and skill played for money, and sports betting, involving players outside of Canada." The AGO referred to this as a "pooled" liquidity scheme. Players in other parts of Canada would not be allowed to participate in these games, unless Ontario reaches an agreement with the province or territory where these players are physically located. The Schedule specifies that "iGaming Ontario will continue to conduct and manage the iGO Sites through its agents, the Operators".

In summary, the Proposed Model would have permitted players in Ontario to play peer-to-peer games against players who are physically situated outside Canada, and to bet on the outcomes. The players located in Ontario and those in other countries would access these games through different web portals, with players in Ontario using the iGO Sites, and players in other countries using websites or applications accessible in the jurisdictions where they are physically located.

issues:

Would legal online gaming and sports betting remain lawful under the Criminal Code if its users were permitted to participate in games and betting involving individuals outside of Canada as described in the attached Schedule? If not, to what extent?

holding:

Appeal allowed.

reasoning:

Majority: Yes.

The majority of the Court of Appeal answered the reference question in the affirmative: legal online gaming and sports betting would remain lawful under the Criminal Code, if its users were permitted to participate in games and betting involving individuals outside of Canada as described in the Schedule that is attached to the OIC. This response made it unnecessary for the Court to address the second reference question.

The Court's analysis of the provision began with a brief review of the modern principle of statutory interpretation. Thereafter, the Court applied that principle to s. 207(1)(a), conducting the necessary textual, contextual, and purposive analysis.

The Court looked to Rizzo & Rizzo Shoes Ltd. (Re), where the Supreme Court embraced the method of statutory interpretation now known as the Modern Principle, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. The Court affirmed that this was done according to a textual, contextual and purposive analysis to find a meaning that was harmonious with the Act as a whole.

Under the Proposed Model, players in Ontario would have been able to participate in games and betting involving players outside of Canada. The laws and agreements that would allow these games to be played would be a "lottery scheme" under the s. 207(4) definition, as would the games themselves. The Court found that a textual analysis of s. 207(1)(a), while not definitive, favoured a broad interpretation. The Court conducted a contextual analysis to ensure that the interpretation advanced was cohesive and internally consistent with the relevant statutory framework. The contextual analysis consisted of two parts. In the first part, the Court considered s. 207(1)(a) within the structure and scheme of Part VII of the Criminal Code. This consideration reinforced the conclusion that s. 207(1)(a) does not preclude international play. In the second part, the Court addressed the contextual arguments the Lottery Coalition advanced in opposition to that conclusion and explained why the majority did not accept those arguments.

The Court rejected a restrictive interpretation of s. 207(1)(a) because such an interpretation would have undermined Parliament's purpose in enacting that provision. As the legislative history demonstrated, the Court found that Parliament favoured provincial regulation because unregulated gaming that lacked provincial safeguards would have been harmful to society, increasing the risks of crime, fraud, and addiction. The Court also accepted the AGO's contention that leaving extraterritorial online gaming unregulated in Ontario would foster those harms.

The Court concluded by noting that its opinion that the Proposed Model would be lawful was predicated on assumptions that were embedded in the reference questions and appended Schedule; the evidence, argument, and submissions of the AGO; and their understanding of how the Proposed Model would operate.

van Rensburg J.A. (dissenting): No.

Dissenting, van Rensburg J.A. did not agree with the Majority's interpretation of the provision or their analysis. Van Rensburg J.A. would have answered "no" to the first question set out in the OIC directing the reference. Van Rensburg J.A. stated that legal online gaming and sports betting would not remain lawful under the Criminal Code if its users were permitted to participate in games and betting involving individuals outside of Canada as described in the Schedule to the OIC. As for the second question, "If not, to what extent?", the international liquidity aspect, which was the raison d'être of Ontario's Proposed Model, would contravene the Criminal Code gaming prohibitions, and the exemption in s. 207(1)(a) would not apply.

National Steel Car Limited v. Hamilton (City), 2025 ONCA 765

[Pepall, Lauwers and Dawe JJ.A.]

Counsel:

E. S. Lederman, J. Chen, C. Windsor, for the appellant

D. Trafford, for the respondent National Steel Car Limited

J. Diacur, for the respondent ArcelorMittal Dofasco Inc.

facts:

National Steel Car's ("NSC") property sits beside the Kenilworth Avenue Drainage Channel in Hamilton. The City owns the southern portion of the Channel, and ArcelorMittal Dofasco ("AMD") owns the northern portion. During heavy rainstorms, the City diverts large volumes of stormwater mixed with untreated sewage into the Channel. Over the span of twenty years, neither the City nor AMD maintained their sections of the Channel, and sediment built up to the point that key culverts became severely obstructed. AMD also modified the former natural inlet by infilling it, installing culverts, and altering its land in ways that reduced the Channel's capacity and diverted water toward NSC's property.

As a result, NSC's plant flooded repeatedly between 2010 and 2021, causing significant operational and property damage. Throughout this period, the City denied owning the relevant portion of the Channel and took no steps either to maintain it or to enforce its own bylaw requiring property owners to keep watercourses clear. AMD likewise undertook no maintenance after 1994. These conditions combined to cause the recurring floods that gave rise to NSC's claim.

The trial judge found both the City of Hamilton and AMD liable in nuisance and negligence. They were both found to be strictly liable pursuant to Rylands v. Fletcher. He held that the repeated flooding constituted a substantial and unreasonable interference with NSC's property. The City caused and contributed to the harm by discharging large volumes of wastewater into an obstructed Channel, refusing to maintain the portion it owned, and failing to enforce its bylaw against AMD. AMD contributed by allowing its culverts and sediment basin to become heavily blocked and by modifying the Channel and surrounding land in ways that reduced drainage capacity. The judge concluded that either defendant's conduct alone would have been sufficient to cause the flooding.

The judge rejected the City's argument that NSC failed to mitigate its damages, finding that NSC had attempted to pursue a flood wall but could not obtain regulatory approvals without the City's participation. He accepted NSC's damages of approximately $5.29 million, including cleanup costs, lost inventory, equipment damage, and the projected cost of a flood wall, and apportioned the compensatory award equally between the City and AMD. He also awarded punitive damages of $500,000 against AMD and $400,000 against the City due to their prolonged disregard of known flooding risks. Finally, he issued a mandatory injunction requiring both defendants to remediate and maintain their respective portions of the Channel on an ongoing basis.

issues:

1. Did the trial judge err in assigning 50/50 responsibility between the City and AMD?

2. Did the trial judge err in rejecting the City's argument that National Steel Car failed to mitigate its losses?

3. Did the trial judge err in awarding punitive damages against the City, or in the amount awarded?

4. Did paragraph 6(d) of the trial judge's amended judgment impose an improper or unrealistic obligation on the City?

holding:

Appeal allowed in part.

reasoning:

No.

The City argued that the trial judge failed to conduct a proper analysis under the Negligence Act and that its blameworthiness was far lower than AMD's. The Court began by reaffirming that apportionment is an assessment of relative fault, not mechanical causation, and that equal apportionment under s. 4 is reserved for situations where a more precise division is not practicable. Consistent with Cempel, Rizzi, and Parent, the inquiry focuses on how markedly each defendant departed from expected standards of conduct. Because apportionment is primarily a factual determination, appellate intervention requires a palpable and overriding error, a standard the City could not meet.

The Court rejected the argument that the trial judge failed to conduct the necessary blameworthiness analysis. When his reasons were read as a whole, it was evident that he considered the misconduct of both defendants and concluded they were equally at fault. AMD had materially altered the natural watercourse, installed restrictive culverts (some on City land), allowed its outlet system to become almost fully obstructed, and ceased maintaining its section of the Channel for decades. The City, in turn, continued to discharge enormous volumes of sediment-laden wastewater into an obstructed Channel, failed to maintain the portion it owned, refused to enforce its own watercourse bylaw, and deliberately denied ownership despite clear evidence.

The City's principal claim, that the trial judge erred in finding it knew of its ownership as early as 2000, did not undermine the apportionment analysis. Even if that conclusion were overstated, the City unquestionably possessed actual knowledge by 2017 yet maintained its denial until the eve of trial, during which eight more floods occurred. The Court characterized this as, at best, serious negligence and, at worst, wilful blindness. It also noted that the judge's approach to punitive damages (treating the defendants as equally blameworthy save for an adjustment related to NSC's tax misconduct) reinforced the symmetry of his fault assessment.

Given the sustained and serious misconduct by both defendants, the Court held that the trial judge's equal apportionment was open to him and revealed no error warranting appellate interference. The City's first ground of appeal therefore failed.

No.

The City argued that NSC failed to mitigate its damages, principally by not constructing a flood wall or taking other protective measures earlier. The Court upheld the trial judge's rejection of this defence. It began by reiterating that the onus lay entirely on the City to prove not only that the plaintiff failed to take reasonable steps but also that a realistic, available, and effective mitigation measure existed. The trial judge correctly applied this framework and committed no palpable and overriding error.

The Court accepted the trial judge's finding that NSC acted reasonably in the circumstances. NSC investigated a flood wall, retained an engineering consultant, and approached the Hamilton Conservation Authority to determine the regulatory requirements. Those efforts could not proceed because the wall would affect the Channel, AMD's land, and City-owned property; therefore, approvals were required. The City's continued refusal to acknowledge ownership of the Channel or to participate in any remediation effectively made the project impossible. The law does not require a plaintiff to undertake mitigation measures that are legally or practically unavailable, nor did it require NSC to construct a structure whose permissions depended on the cooperation of a defendant who was denying responsibility.

The Court also emphasized that the City failed to demonstrate that the proposed flood wall would have reduced damages in any predictable way. The trial judge was entitled to find that, given the City's stance and the hydrological complexities of the Channel, NSC lacked any feasible path to implement the wall even with diligence. The City's submissions amounted to a re-argument of the facts, not proof of error by the trial judge.

In the result, the Court held that the trial judge was entitled to conclude that NSC had taken reasonable mitigation steps and that the City had failed to discharge its burden. The mitigation defence was therefore properly rejected by the trial judge.

No.

The City argued that the trial judge erred both in awarding punitive damages against it and in fixing the amount at $400,000. The Court rejected this argument, holding that the award met the stringent criteria set out in Whiten and fell squarely within the trial judge's discretion. Punitive damages are reserved for conduct that is malicious, oppressive, or high-handed to a degree representing a marked departure from ordinary standards of decency. The trial judge's findings amply supported such a conclusion.

The Court accepted the trial judge's determination that the City deliberately denied ownership of the Channel for years in the face of overwhelming and continually mounting evidence. It continued to discharge large volumes of sediment-laden sewage and stormwater into an obstructed Channel that it refused to maintain, despite repeated flooding and clear notice of the harm being caused. The City's refusal to enforce its own watercourse bylaw—both against AMD and against itself—further entrenched the pattern of disregard. Although the City argued that the trial judge overstated the significance of a 2000 internal City of Hamilton historical land analysis document as evidence of its knowledge, the Court held that any such error did not undermine the punitive damages award. By 2017, the City had indisputable confirmation of its ownership, yet continued to deny it through the litigation until the eve of trial. That sustained conduct was independently sufficient to justify punitive damages.

The Court also endorsed the trial judge's treatment of NSC's tax-withholding misconduct. The judge expressly reduced the punitive figure to account for this factor, demonstrating his attention to proportionality. The remaining amount served the legitimate purposes of denunciation and deterrence, particularly given the City's prolonged institutional intransigence. The Court concluded that the award was proportionate to the blameworthiness of the conduct and fell within the acceptable range. There was no basis for appellate intervention.

Yes.

The final issue concerned paragraph 6(d) of the mandatory injunction, which required the City and AMD to retain an engineer to design an annual maintenance protocol for the Channel "so as to ensure NSC's property does not flood." The City argued that this wording effectively imposed a guarantee against any future flooding, regardless of the severity of weather events or factors outside its control, and that such a requirement was both unreasonable and capable of giving rise to contempt proceedings if even a single flood occurred.

The Court of Appeal agreed that the impugned wording was problematic. Although the trial judge likely did not intend to impose an absolute no-flood guarantee, the language was sufficiently broad that it could be read that way. The Court noted that the injunction already contained other provisions (particularly the requirement that all work be carried out in accordance with accepted engineering standards) that adequately captured the intended remedial objective. The "ensure no flooding" clause added unnecessary ambiguity, broadened the defendants' obligations beyond what the evidence supported, and risked future disputes about compliance.

Because appellate courts have the authority to vary an injunction where its terms are unclear or overly burdensome, the Court deleted the offending phrase and replaced paragraph 6(d) with revised wording that required the defendants to obtain an engineer-stamped annual maintenance protocol without imposing a literal guarantee of flood-free conditions. With that modification, the injunction remained otherwise intact.

McCormack v. Evans, 2025 ONCA 767

[Gillese, Gomery and Pomerance JJ.A.]

Counsel:

H. Epstein and N. Simpson, for the appellant

K. McGivney and N. Kolos, for the respondents

facts:

In 2004, the appellant was working as a plainclothes officer with the Toronto Police Service ("TPS"). His duties included Liquor Licence Act investigation and enforcement in Toronto's entertainment district. During an investigation into organized crime, police uncovered evidence that incriminated the appellant in bribery and corruption offences. He became a target of "Project Bar District". Police obtained an authorization to intercept the appellant's communications. As a result of his incriminating utterances, he was charged with various crimes. Some were stayed for delay and others were withdrawn by the Crown.

The appellant launched a civil action alleging misfeasance in public office, malicious prosecution, negligent investigation, negligence and/or intentional infliction of emotional distress. He sought special damages, punitive damages, and in the alternative, Charter damages. He asserted factual innocence and claimed police lacked reasonable and probable grounds. His claim centered on a deception carried out by the lead investigator, E, who misdescribed two individuals as confidential informants ("CIs") in the wiretap affidavit. The appellant argued that the deception required exclusion of the intercepted communications and that the charges were based on investigators' animus. The trial judge dismissed the action, finding the intercepted communications admissible; that police had reasonable and probable grounds; that the evidence did not establish animus or malice; and that the civil claims had not been proved. The appellant challenged those findings on appeal.

issues:

1. Did the trial judge err in holding that the intercepted communications were admissible at the civil trial?

2. Did the trial judge err in finding that the police had subjective grounds to charge the appellant with the offences?

3. Did the trial judge err in finding that there were objectively reasonable grounds to lay the charges against the appellant?

4. Did the trial judge err in finding that the alleged wrongs had not been proved?

holding:

Appeal dismissed.

reasoning:

1. No. The Court found the trial judge did not err in holding that the intercepted communications obtained pursuant to the wiretap authorization were admissible at the civil trial. It was difficult to imagine a proper basis for excluding them. Excluding them would have potentially permitted recovery of damages in the absence of civil wrongdoing and overshot the purpose of the Charter by permitting the use of the exclusion of the evidence as a sword, rather than as a shield to defend against criminal charges.

The wiretap authorization was presumed to be valid authority for the interception of the appellant's communications. The Crown's comments did no more than affirm what everyone already accepted, that the deception in the affidavit should not have occurred. It was conceivable that the authorization might have been upheld as valid on the basis that it could have issued based on a corrected affidavit. The appellant's Garofoli application might have succeeded at a criminal trial, but success was not inevitable. Even if it had been, that would not have dictated admissibility in civil proceedings. The analysis of whether or not to exclude evidence for a Charter breach was entirely different in the civil context than in the criminal context. The pursuit of truth was the cardinal principle in civil proceedings. Admissibility was governed by the rules of evidence and by balancing probative value against prejudicial effect. The intercepted communications stood as a powerful rebuttal of both assertions. The probative value of the evidence fell at the high end of the range. E's deception did not cause the appellant to say what he said. It captured precisely what it purported to capture, the appellant's direct involvement in corrupt activities.

2. No. The Court held the trial judge's finding of subjective grounds disclosed no error. In laying charges, the standard of care was informed by the legal requirement of reasonable and probable grounds to believe the suspect was guilty. An investigator's personal belief that there were reasonable and probable grounds was not sufficient, a reasonable person standing in the shoes of the investigator had to believe there were reasonable and probable grounds that the person charged had committed the offence. The investigator did not have to evaluate evidence to a legal standard or make legal judgments.

Logically, deception could co-exist with a belief that a suspect was guilty. E misstated the status of sources as CIs, but did not alter what those sources had to say. It was the content of their evidence that supported the investigators' grounds. The wiretap affidavit summarized the investigation up to a certain point. It led to the issuance of the wiretap authorization. However, the charges were based on the fruits of the authorization, the appellant's incriminating utterances. The informations charging the offences stood as uncontradicted evidence of the officers' subjective grounds for belief.

3. No. The Court found the grounds to be objectively reasonable. A committal to stand trial was a relevant, though not dispositive, consideration when evaluating the bases for charges. It reflected a judicial determination that there was evidence upon which a reasonable jury, properly instructed, could have found the appellant guilty of the charged offence. That threshold determination, designed to screen out unfounded charges, was some indication that the prosecution was properly commenced.

The trial judge carried out a thoughtful and highly detailed analysis of each of the charged counts. The intercepts disclosed conversations between the appellant and various bar owners, discussing how to deal with existing charges, how to avoid new charges, and payment for favours already discharged. Even if some of that evidence could have grounded a defence at a criminal trial, it did not vitiate the grounds that existed for the charges when they were laid. The Crown posited that the evidence might be excluded, not because it lacked reliability, but because of how it had been obtained. The withdrawal of charges did not undermine or displace the very clear, objective and reliable bases for criminal charges to be laid against the appellant.

4. No. The Court found no error in the trial judge's analyses of the appellant's claims, and no basis for appellate intervention. Once it was accepted that the charges were based on reasonable and probable grounds, and that investigators were not acting out of malice, the appellant's grounds for appeal had to fail. The trial judge engaged in a careful analysis of the constituent elements of each allegation. He applied the correct principles and reached conclusions that were open to him on the evidence.

Angelillo v. Mughal, 2025 ONCA 769

[Huscroft, Coroza, and Monahan JJ.A.]

Counsel:

V.A., acting in person

S.A.M., acting in person

facts:

VA, the father, and SAM, the mother, each appealed the trial judge's final order in their divorce proceedings. The couple were married for less than a year and shared one young child, RA. Following the parties' separation in 2022, the father had primary care of RA pursuant to several interim orders. The mother's parenting time was required to be supervised by her parents, and by the time of trial she had day-time parenting of RA three to four days a week and one overnight.

At trial, the father sought permission to relocate with RA to Montréal, requesting that the mother's parenting time be reduced to one extended weekend per month, under supervision. He further sought to affirm his sole decision-making authority for their daughter and requested a restraining order against his ex-wife. Unsurprisingly, the wife opposed the relocation request, seeking sole decision-making authority, the majority of parenting time, and removal of the supervision requirement.

Acknowledging that the best interests of the child were the paramount consideration, the trial judge assessed the relocation request in accordance with s. 16.93(2) of the Divorce Act (the "Act"). This section provides that where a child spends most of their time in the care of the party seeking relocation, the party opposing relocation bears the burden of proving that the move would not be in the child's best interests. The trial judge accepted that the father had bona fide reasons for wanting to move to Montréal, since he had family members in the city and new employment in Ottawa. However, she was troubled by the logistics of the relocation plan, which proposed that the mother's 68-year-old father would drive RA between Toronto and Montréal monthly to enable the mother's parenting time. The maternal grandfather testified he was reluctant to do this amount of driving. Hence, the trial judge declined the relocation request, directing that the parties continue to share meaningful parenting time with RA while residing in the same geographic location. The trial judge also maintained the status quo with respect to the father's sole decision-making responsibility but added a requirement that he consult with the mother and consider her views. Finally, the trial judge increased the mother's parenting time, removed the supervision requirement, and dismissed the restraining order request. Other financial issues including child support paid by the mother to the father were also resolved.

Both parties appealed. The father contended that the trial judge mistakenly placed the burden to demonstrate why the status quo should be displaced via relocation on him, contrary to s. 16.93(2) of the Act. In contrast, the mother argued that the trial judge's relocation request denial should be upheld. She further asserted that, as RA's primary caregiver since birth and considering the father's alleged coercive conduct, she ought to have sole decision-making authority and the bulk of parenting time. The mother also sought supervision of the father's parenting time, a restraining order against him, and revision of her child support obligations to reflect her current finances.

issues:

1. Did the trial judge err in denying the father's relocation request by failing to apply the burden of proof set out at s. 16.93(2) of the Act?

2. Did the trial judge err with respect to the parenting time order?

3. Should the trial judge's child support order be varied to reflect the mother's "updated financial circumstances"?

holding:

Father's appeal allowed in part. Mother's appeal dismissed.

reasoning:

1. Yes. Though the trial judge acknowledged that s. 16.93(2) established that the mother bore the burden of proving that relocation would not be in RA's best interests, the trial judge failed to actually apply this burden. This was an error of law attracting the correctness standard. The fundamental premise underlying the burden is that where a child's primary caregiver proposes to relocate, it usually is in the child's best interests to move with that parent, thereby maintaining stability and continuity of care. While the trial judge properly focused upon RA's best interests, she did not start her analysis by presuming that relocating with the father was in RA's best interests. Rather, she dismissed the request by simply identifying logistical concerns with the father's relocation plan and even directed the father to abandon his own plans to move. The trial judge was required to do more than identify a flaw in the plan and default to the status quo and erred in law by in effect applying a straightforward best interests analysis that placed an equal burden of proof on each parent, which is not what s. 16.93(2) directs. Thus, the Court set aside the relocation conclusion, remitting the issue for a fresh hearing.

2. No. No palpable and overriding errors were evident in the trial judge's parenting order, which had been in place for 10 months at the time of appeal. The Court emphasized that relocation decisions must be based on the facts at a particular point in time. Since the trial judge's order increased the mother's parenting time to include one weekday overnight and several days every other weekend, the arrangement differed significantly from the parenting division that was in place when the father initially sought permission to relocate. The Court held that the trial judge's parenting time findings were entitled to deference, declining to reweigh the evidence and substitute either the mother or father's preferred schedule.

3. No. The existing child support order was based on the mother's own evidence regarding her income. Any variation of this order would require a motion to change, which the mother had not brought.

SHORT CIVIL DECISIONS

Rizzuto v. Hamilton-Wentworth Catholic District School Board, 2025 ONCA 773

[Copeland, Wilson and Pomerance JJ.A.]

Counsel:

J. Strype and C.V. Delft, for the appellants

J. Greve and C. Leung, for the respondents

Keywords: Torts, Negligence, Duty to Investigate, Standard of Care, Clements v. Clements, 2012 SCC 32

MCC Mortgage Holdings Inc. v. Rutaihwa, 2025 ONCA 778

[Thorburn J.A. (Motion Judge)]

Counsel:

Jo. R. and Ja. R, appearing in person

J. Opolsky, appearing as amicus curiae

J. Riewald, for the responding party

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Appeals, Extension of Time, Stay Pending Appeal, Rules of Civil Procedure, r. 63.02(1), 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Laski v. Laski, 2016 ONCA 337, Wardlaw v. Wardlaw, 2020 ONCA 286, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Morguard Residential v. Mandel, 2017 ONCA 177, Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 859, Ducharme v. Hudson, 2021 ONCA 151

Chen v. Huang, 2025 ONCA 776

[Roberts, Miller and Monahan JJ.A.]

Counsel:

J. Mesiano-Crookston, for the appellants

D. Michaud, for the respondents, 710561 Ontario Limited, CMH, YZ, TTL, XY, WC, YG, HL, 14455169 Canada Inc. and LH

P. Benipal, for the respondents, JJ and YG

Keywords: Contracts, Real Property, Mortgages, Enforcement, Corporations, Oppression, Fraudulent Conveyances, Business Corporations Act, R.S.O. 1990, c. B.16

Bombardier Inc. v. Alstom Rail Sweden AB, 2025 ONCA 779

[Roberts, Miller and Monahan JJ.A.]

Counsel:

H. Meighen and B. Wray, for the respondent/moving party

O. Pasparakis and N. Tawdy, for the appellant/responding party

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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 (November 10 – 14, 2025)

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