Court Of Appeal Summaries (December 15 – 19, 2025) - Civil Law

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Good Afternoon,
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of December 15, 2025.

In Shaw Estate v. Handler, the Court upheld the trial judge's findings that the physician breached the standard of care by not calling a patient back for an urgent surgical consultation and that timely care would likely have prevented her death.

In Sienna v Duckett, the Court allowed the appeal from an order striking a negligence claim against the Attorney General of Canada arising from a fatal shooting by a licensed gun owner, holding that while the statement of claim as drafted did not disclose a reasonable cause of action, the claim could be amended to make it viable. The Court confirmed that no private law duty arises from the Firearms Act alone, but held that a duty of care could potentially be recognised if the appellants pleaded facts showing that the respondent knew or ought to have known, at the time of licensing, that the shooter posed a risk to a sufficiently particularised group including the appellant.

In Royal Bank of Canada v. 1434399 Ontario Inc., the Court of Appeal granted the receiver's motion, holding there was no appeal as of right from a vesting and other orders under s. 193(a) or s. 193(c) of the Bankruptcy and Insolvency Act and declining leave. The Court rejected the debtor's reliance on non‑binding financing as evidence of "loss," emphasized the narrow construction of s. 193(c), and was concerned about upholding the integrity of the court‑supervised sale process.

In Hilmer Motorsport GmbH v. Mason, the Ontario Court of Appeal upheld recognition and enforcement of a German default judgment arising from a race car driver agreement specifying German law, Munich jurisdiction and containing an arbitration clause. The Court held that there was a real and substantial connection to Germany and that the arbitration clause did not oust the German court's jurisdiction because arbitration agreements are not self-enforcing and require a stay application, which the appellants never brought. Enforcement was not contrary to natural justice or public policy, as service was proper and arbitration should have been pursued in the German proceedings.

Hejno v. Hejno was an appeal from the order of the application judge who validated unsigned 2024 draft wills under s. 21.1 of the Succession Law Reform Act. The appeal was allowed, the order validating the 2024 drafts was set aside, those drafts were declared invalid, and the matter was remitted to the Superior Court for determination of the remaining issues on a full evidentiary record. A 2018 will that had been properly executed was discovered after the lower court's decision and before the appeal was heard. The Court admitted this will into evidence, as it could not have reasonably been discovered earlier and could have affected the result as to whether the 2024 wills should be recognized as valid. The matter was remitted to the Superior Court for determination.

In Liu v. Hao, the Court held that the motion judge properly granted summary judgment under Hryniak, affirmed the factual findings that DHPC acted as the appellants' agents and that payments from the second‑mortgage funds were authorized and benefited the appellants. The Court upheld joint and several liability and punitive damages.

2642948 Ontario Inc. v. Jonny's Antiques Ltd., the Court of Appeal upheld an order vacating a CPL after finding the mortgagee had taken vacant and peaceable possession under its mortgage, while also declining to quash the appeal as abusive and lacking merit despite dismissing the appeal on the merits. The Court discouraged the bringing of motions to quash for lack of merit after an appeal has already been perfected.

Wishing everyone an enjoyable holiday season.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Shaw Estate v. Handler, 2025 ONCA 868

Keywords: Torts, Negligence, MedMal, Standard of Care, Causation, Levac v. James, 2023 ONCA 73, Liu v. Wong, 2016 ONCA 366, Hasan v. Trillium Health Centre Mississauga, 2024 ONCA 586, Salter v. Hirst, 2011 ONCA 609, Barker v. Montfort Hospital, 2007 ONCA 282, Farej v. Fellows, 2022 ONCA 254

Sienna v. Duckett, 2025 ONCA 867

Keywords: Torts, Negligence, Duty of Care, Anns/Cooper Test, Wrongful Death, Crown Liability, Regulation of Firearms, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Firearms Act, S.C. 1995, c. 39, ss. 5(1), 55(2), Rules of Civil Procedure, r. 21.01(1)(b), McCreight v. Canada (Attorney General), 2013 ONCA 483, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Nelson (City) v. Marchi, 2021 SCC 41, Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, Cooper v. Hobart, 2001 SCC 79, Taylor v. Canada (Attorney General), 2012 ONCA 479, Vlanich v. Typhair, 2016 ONCA 517, Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5, Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 74 O.R. (2d) 225 (Div. Ct.), leave to appeal refused, (1991) 1 O.R. (3d) 416 (Ont. C.A.), Rivard v. Ontario, 2025 ONCA 100, Conway v. The Law Society of Upper Canada, 2016 ONCA 72, Mortazavi v. University of Toronto, 2013 ONCA 655 leave to appeal refused, [2014] S.C.C.A. No. 190

Royal Bank of Canada v. 1434399 Ontario Inc., 2025 ONCA 878

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Leave to Appeal, Orders, Nunc Pro Tunc, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, ss. 193(a), (c), Bankruptcy and Insolvency General Rules, C.R.C., c. 368 1, rr. 3, 31(2), Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 61.08(3), 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, Cosa Nova Fashions Ltd. v. The Midas Investment Corporation, 2021 ONCA 581, First National Financial GP Corporation v. Golden Dragon HO 10 Inc., 2019 ONCA 873, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282

Hilmer Motorsport GmbH v. Mason, 2025 ONCA 875

Keywords: Private International Law, Conflict of Laws, Foreign Judgments, Recognition and Enforcement, Jurisdiction, Defences, Public Policy, Civil Procedure, Summary Judgment, Contracts, Arbitration Clauses, Convention on the Recognition and Enforcement of Foreign Arbitration Awards, June 10, 1958, 330 U.N.T.S. 3, Can. T.S. 1986 No. 43, art. II, s.3, International Commercial Arbitrations Act, 2017, S.O. 2017, c. 2, Sched. 5, s. 5, UNCITRAL Model Law on International Commercial Arbitration 1985, with amendments as adopted in 2006, UNGA, 40th Sess., UN Doc. A/40/17 (1985), Annex I, 61st Sess., UN Doc. A/61/17 (2006), Annex I, Rules of Civil Procedure, r. 21.01(3)(a), Arbitration Act, 1991, S.O. 1991, c. 17, s. 7, Chevron Corp. v. Yaiguaje, 2015 SCC 42, Beals v. Saldanha, 2003 SCC 72, Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Janet Walker, Canadian Conflict of Laws, 7th ed. (Toronto: LexisNexis Canada, 2005) (loose-leaf updated 2025, release 111), vol. 2 at p. 16-11

Hejno v. Hejno, 2025 ONCA 876

Keywords: Family Law, Civil Procedure, Motions, Extension of Time, Delay, Frivolous, Vexatious, Pleadings, Striking Pleadings, Occupation Rent, Costs, , Merits, Rules of Civil Procedure, J.J.W. v. K.F., 2024 ONCA 362, Lavallee v. Isak, 2022 ONCA 290, Jex v. Jiang, 2021 ONCA 160, Issasi v. Rosenzweig, 2011 ONCA 112, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Liu v. Chan, 2024 ONCA 699, Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, Roberts v. Roberts, 2015 ONCA 450, Martin v. Watts, 2020 ONCA 406, Mullin v. Sherlock, 2018 ONCA 1063, Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.)

Liu v. Hao, 2025 ONCA 883

Keywords: Torts, Fraud, Contracts, Real Property, Mortgages, Guarantees, Agency, Ostensible Authority, Acquiesence, Damages, Punitive Damages, Joint and Several Liability, Civil Procedure, Summary Judgment, Substantial Indemnity Costs, Rules of Civil Procedure, r. 20, Hryniak v. Mauldin, 2014 SCC 7, Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Barry v. Anantharajah, 2025 ONCA 603

2642948 Ontario Inc. v. Jonny's Antiques Ltd., 2025 ONCA 892

Keywords: Contracts, Real Property, Mortgages, Enforcement, Vacant and Peaceable Possession, Civil Procedure, Certificate of Pending Litigation, Appeals, Standard of Review, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Mortgages Act, R.S.O. 1990, c. M.40, Hume v. 11534599 Canada Corp., 2022 ONCA 575

Short Civil Decisions

Jiang v. 12280451 Canada Inc., 2025 ONCA 891

Keywords: Corporations, Oppression, Sale of Assets, Reasonable Expectations, Creditors, Directors, Officers, Liability, Corporate Veil, Contracts, Debtor-Creditor, Remedies, Oppression Remedy, Civil Procedure, Summary Judgment, Canada Business Corporations Act, R.S.C., 1985, c. C-44, s. 241, Rules of Civil Procedure, r. 31.07, BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, Wilson v. Alhayeri, 2017 SCC 39

1255717 Ontario Ltd. V. Glenrio Financing Limited, 2025 ONCA 884

Keywords: Civil Procedure, Motion to Extend Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5)]

Rai v. Rai, 2025 ONCA 879

Keywords: Civil Procedure, Summary Judgment, Family Law, Disclosure, Traversal, Civil Stream, Family Stream, Evidence, Cross-examination, Refusals, Credibility, Rules of Civil Procedure, r. 34.12(3), Family Law Rules, O. Reg 114/99, Hryniak v. Mauldin, 2014 SCC 7

CIVIL DECISIONS

Shaw Estate v. Handler, 2025 ONCA 868

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

Counsel:

J. Lilles, A. Davis and L. Leshchynska, for the appellant

C.I.R. Morrison, P.J. Cahill and H. Chalmers, for the respondents

facts:

This case arose out of the death of E.S. Following bariatric surgery in 2012, E.S. had abdominal pain and nausea, leading to a visit to the emergency department of the Brampton Civic Hospital (the "Hospital") shortly before midnight on November 16, 2015. She was discharged the morning of November 17 after a report that her abdominal CT scan was normal. Shortly after E.S.'s discharge, a Hospital radiologist reported that the CT scan showed an impression of twisting of mesenteric vessels. The appellant physician did not take any steps to contact E.S. or to have her return to the Hospital.

The trial judge qualified Dr. S.J. and Dr. M.P.F. as participant experts in the care of E.S. with respect to diagnostic radiology. Dr. A.S. was qualified as an expert on the standard of care of an emergency physician. Dr. A.D. was permitted to testify about the standard of care of an emergency room physician as well as to give general evidence on causation. The trial judge qualified the plaintiffs' causation expert, Dr. R.H., and the defence causation expert, Dr. T.J. as experts in general surgery.

The trial judge concluded that the standard of care was breached when the appellant failed to call E.S. back to the Hospital for a surgical consultation after receiving the updated CT scan results and concluded that the appellant's breach of the standard of care was a cause of E.S.'s death. The trial judge noted that the appellant would only be liable if causation was established on a "but for" basis and that he needed to determine what was the cause of E.S.'s death, what would have occurred if the appellant had acted in accordance with the standard of care, and whether it was more likely than not that E.S. would not have died.

issues:

Did the trial judge err in his articulation of the standard of care and identify a standard of care that was unsupported by the evidence at trial?
Did the trial judge err in his causation analysis by failing to make the necessary factual findings to determine whether E.S. would have lived, had the appellant met the standard of care?

holding:

Appeal dismissed.

reasoning:

No.

The Court stated that in medical malpractice cases where standard of care is at issue, the court must determine "what a reasonable physician would have done (or not done) in order to meet the standard of care".The Court also held that given the complexity of medical malpractice cases, expert evidence plays an essential role in establishing the standard of care, breach of the standard of care and causation.

The Court disagreed with the appellant's proffered interpretation of Dr. A.D.'s evidence about what was required for the appellant to meet the standard of care after he learned from Dr. M.P.F. that E.S.'s CT scan showed twisting blood vessels in E.S.'s middle abdominal region, a finding that can be consistent with a post-operative hernia. The Court held that a fair reading from Dr. A.D.'s testimony, when considered together with the whole of his evidence and chronology of events, is that it fully supports and is consistent with the standard of care identified by the trial judge.

The Court further disagreed with the appellant's submission that, in articulating the standard of care and concluding it was breached, the trial judge did not make the essential findings that the need for a surgical consultation was urgent, that E.S. would have been doing worse at that time, and that, had the call been made, she would have come to the Hospital and had an urgent surgical consultation. The Court believed Dr. A.D.'s evidence clearly communicated the urgency of the situation. His opinion was that E.S. ought to have remained in the Hospital to be monitored and, if her condition had not improved, to have received a surgical consultation, and that having been discharged, once the new information was received, she ought to have been contacted to return to the Hospital for a "hands on assessment". The Court also believed there was no evidence that E.S. would have refused to return to the Hospital knowing that a surgical consultation was recommended.

The Court also disagreed with the appellant's alternative argument in relation to the standard of care that the trial judge ought to have considered and adopted Dr. A.D.'s evidence that the appellant would have met the standard of care if a surgeon had been apprised of E.S.'s condition "within a reasonable period of time". The Court was of the view that the appellant took a passage from Dr. A.D.'s trial testimony out of context. Dr. A.D. did not testify that the appellant would have met the standard of care by discharging E.S. with instructions to follow up with her bariatric surgeon in the community or that, having received the call from the second radiologist, it would have been sufficient for her to follow up with her own bariatric surgeon.

Finally, the Court disagreed with appellant's submission that the trial judge wrongly disregarded the evidence of the defence standard of care expert, Dr. A.S., after erroneously finding that this expert's opinion was anchored in his incorrect assumption that E.S.'s pain had improved by the time of her discharge.

No.

The appellant contended first, that the trial judge did not explain with specificity when the "window of opportunity" for the necessary surgical intervention would have closed. The Court held it was not necessary for the trial judge to determine when the "window of opportunity" would have closed. The Court believed there was no issue in this case as to whether, if E.S. had been operated on at some point on November 17, she would have survived. The Court agreed with the respondents that in this case a finding as to the precise time when E.S.'s trajectory would have progressed to the point where surgery would not have altered her outcome was not required. The trial judge did not have to determine when the "window of opportunity" would have closed but only that it had not closed by when E.S. would reasonably have been operated on had she returned to the Hospital.

The Court also disagreed with the appellant's second argument that the trial judge failed to make findings of fact that were required for the chain of causation. There was no reason to believe that if E.S. had been contacted shortly after she was discharged from the Hospital while still in acute pain, had been told about the CT results showing a possible hernia and being advised to return to the hospital to be seen by a surgeon, that she would have refused to return to the Hospital. There was no basis for the appellant's contention that the trial judge failed to make the necessary "granular" findings about when the call would have been made to E.S.; how long it would have taken her to return to the Hospital, be triaged and for a surgical consultation to be arranged; and when she would have been operated on.

Sienna v. Duckett, 2025 ONCA 867

[Copeland, Wilson and Pomerance JJ.A.]

Counsel:

R. J. Hooper and R. A. Sullivan, for the appellants

W. Wright and T. Gai, for the respondent

facts:

On July 30, 2019, mere hours after NS called 911 to report his concerns about the erratic behaviour of his neighbour MD, MD shot and killed NS at NS's family home. NS's personal representative and his family, the appellants, sued the respondent, the Attorney General of Canada, among others. The appellants alleged that the respondent negligently failed to properly administer regulatory oversight in issuing firearms licenses and owed them a private law duty of care. The respondent moved to strike the claim pursuant to r. 21.01(1)(b) of the Rules, arguing that it failed to disclose a reasonable cause of action.

The motion judge agreed, finding no reasonable cause of action in the claim as pleaded. He struck the claim without leave to amend. In his view, the facts pleaded did not support the necessary proximity between the parties to ground a duty of care on the respondent's part. Alternatively, compelling policy reasons negated a duty of care since finding a duty of care relating to all persons harmed by gun violence perpetrated by a licensed gun user would in essence make Canada "the insurer for victims of firearm related crimes committed by [license] holders." The appellants appealed this decision.

issues:

Did the motion judge err in finding that the claim did not plead a reasonable cause of action against the Attorney General of Canada?
Did the motion judge err in not granting leave to amend the statement of claim?

holding:

Appeal allowed.

reasoning:

No.

The applicable standard of review was correctness. Claims should only be struck relying on r. 21.01(1)(b) where it is plain and obvious that there is no reasonable prospect that the claim can succeed. Moreover, in assessing a motion to strike, courts must read the pleading generously and assume that all facts pleaded are true. Claims should not be struck simply because they contain novel duties of care. In such cases, courts must apply the Anns/Cooper test to determine if a new duty of care can be recognized by asking: 1) whether the parties are in a proximate relationship in which the defendant's failure to take reasonable care might foreseeably harm the plaintiff; and 2) if there is a prima facie duty of care, whether residual policy concerns should negate it.

First assessing proximity, the Court cited Imperial Tobacco for the three categories in which a public law duty may give rise to a private law duty of care on a government actor, like the respondent: 1) where the alleged duty of care arises explicitly or implicitly from the statute 2) where specific interactions between the government and the plaintiff create a relationship of sufficient proximity not negated by statute, and 3) where a combination of interactions and statutory duties establishes sufficient proximity to give rise to a duty of care. Here, the appellants relied on the first and third categories. The Court held that the motion judge did not err in concluding that a private law duty could not arise from the legislation alone. Sections 5(1) and 55(2) of the Firearms Act, which the appellants relied on, could not be reasonably read as creating a private law duty. However, a private law duty could arise under the third Imperial Tobacco category. This category is fulfilled where a relationship exists between the government actor and the plaintiff that is more particularized and distinct than the public at large. Importantly, interactions between plaintiff and defendant that undergird a new duty of care need not be personal. Instead, what is required is that the defendant's actions have a close or direct effect on the victim.

The Court agreed with the motion judge that the appellant's claim as currently pleaded did not disclose a reasonable cause of action under the third category but held that it was not plain and obvious that the appellants could not plead a viable cause of action, if permitted to amend their claim. The claim as pleaded alleged that MD was not eligible to hold a firearms license, and that the respondent knew or ought to have known this. What the claim lacked was the element that the respondent knew/ought to have known, when it issued the license, that MD posed a risk to NS or to a specific group including MS, as distinct from a risk to the general public if a person who does not meet the criteria for a firearms license receives one. A pleading containing facts supporting this element would create sufficient proximity between the parties to be capable of grounding a duty of care.

The Court made three further comments about the scope of the duty. When assessing a motion to strike, a court does not find that a duty of care exists, but rather that one could exist. The Court also declined to define the more particularized group that might underpin a duty of care owed by the respondent, since it was the appellants' task to amend their claim to make it compliant with prior law. Finally, the Court acknowledged the imbalance between the respondent's greater knowledge as to the licensing circumstances of MD and the appellants' lack of access to this information; this imbalance would inform the assessment of the sufficiency of the amended pleadings.

Turning to the policy analysis, the Court held that the proposed duty of care which it found could support a reasonable cause of action was more limited than the broad duty of care posited by the motion judge in his policy discussion, which may well have given rise to policy concerns. A duty of care formulated as extending to a particularized group that the respondent allegedly knew was at risk from MD would not raise these same concerns.

2. Yes.

Although the motion judge correctly found that the claim as pleaded could not support a duty of care, circumstances could be pleaded that would give rise to an arguable duty of care, as explained above, and leave to amend should have been granted. The Court emphasized that leave to amend should be denied in only the clearest cases. Here, the motion judge did not provide any analysis supporting why he denied leave to amend. This unexplained denial was not entitled to deference, and the Court varied the motion judge's order to grant leave to amend.

Royal Bank of Canada v. 1434399 Ontario Inc., 2025 ONCA 878

[Huscroft J.A. (Motion Judge)]

Counsel:

E. P. Shea, K.C. Liu and C. Liu, for the moving party, msi Spergel Inc.

V. Adams, for the respondent Royal Bank

A. McNish and C. Leung, for the responding party, 1434399 Ontario Inc

facts:

The respondent Royal Bank of Canada was a secured creditor of 1434399 Ontario Inc. ("143"), whose principal asset was the real property on which it operated a gym. J.F. was 143's sole director, officer and principal, and personally guaranteed the RBC debt, which was secured by mortgage. On September 28, 2023, on an unopposed application by RBC, the court appointed msi Spergel Inc. as receiver.

After a prolonged marketing process that yielded only two offers and required substantial price reductions, the receiver accepted the best offer and, on May 20, 2025, moved for an approval and vesting order.

In response, 143 cross‑moved to redeem its mortgage debt, approximately $1.7 million, and to discharge the receiver. At 143's request, the matter was adjourned peremptory to May 27, 2025. On the morning of the May 27 hearing, 143's counsel sent without‑prejudice emails stating that J.F. was working to secure additional financing and offering $1.4 million "for a consent discharge." At the hearing, 143 filed affidavits from J.F.'s friend, G.G., and his son, L.J.F., indicating a willingness to lend a combined $1.4 million "to salvage" 143's ownership of the property.

The motion judge held that 143 was not able to redeem, finding it had no funds in hand and had presented only "something less than binding commitments" in an amount well short of what was needed; the proposed arrangement was "too late and too little." The motion judge approved the receiver's sale and dismissed 143's motion to discharge the receiver, noting that 143 had "20 months to secure new money" and that accepting its late proposal would undermine the integrity of the court‑approved sale process.

Before the release of the motion judge's written reasons, 143 filed a notice of appeal from the approval and vesting order, an ancillary order, and the discharge order. Consequently, the receiver brought a motion seeking an order declaring that 143 has no right of appeal under ss. 193(a) or (c) of the Bankruptcy and Insolvency Act.

issue:

Did 143 have a right of appeal under s. 193(a) or s. 193(c) of the Bankruptcy and Insolvency Act from the approval and vesting, ancillary and discharge orders?

holding:

Motion granted.

reasoning:

The Court granted the receiver's motion because 143 had no appeal as of right under s. 193(a) or s. 193(c) of the Bankruptcy and Insolvency Act and leave to appeal was not warranted.

On s. 193(a), the Court held that the appeal did not involve "future rights." It applied the settled meaning that future rights are future legal rights, not present liabilities or commercial consequences: North House Foods Ltd. (Re) at para. 25. The approval and vesting order determined the guarantor's present liability, not a future right: 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd at paras. 27-28.

Section 193(c) provided a right of appeal "if the property involved in the appeal exceeded in value ten thousand dollars." 143 focused on the $10,000 threshold, arguing that it clearly surpassed the value of the property in that case and the loss it claimed it would incur if the sale was completed. However, on s. 193(c), the court construed the provision narrowly to avoid undermining the statutory stay, consistent with Cosa Nova Fashions Ltd. v. The Midas Investment Corporation at para. 22.

The Court did not accept 143's argument. There was no "loss" in establishing an appeal as of right. Affidavits from a friend and a family member expressing a willingness to lend $1.4 million did not establish the property's objective value or an actual loss. Instead, they were unenforceable statements of intention, and no funds were available. 143's effort was an attempted redemption for less than the debt, not a binding offer to purchase, and the receiver had no obligation to act on non‑binding promises.

As to leave, 143 did not seek leave in its notice of appeal as required by the BIA Rules, and leave is generally refused on that basis: see North House Foods, at paras. 44-46. A nunc pro tunc amendment was not appropriate here. In any event, applying Business Development Bank of Canada v. Pine Tree Resorts Inc., leave would have been refused. The proposed appeal raised fact‑based issues of no general importance, lacked merit given 143's inability to redeem or make a binding offer despite ample time, and further appeal would unduly delay already protracted proceedings.

Hilmer Motorsport GmbH v. Mason, 2025 ONCA 875

[Pepall, Lauwers and Dawe JJ.A.]

Counsel:

A. Monadjem, for the appellants

N. Petkov, for the respondent

facts:

NM, the appellant, was a professional racing car driver who entered into a 2014 Driver Agreement (the "Agreement") with the respondent German corporation, Hilmer Motorsport GmbH ("Hilmer"). NM was to represent Hilmer's racing team in the 2014 GP3 Series, in consideration forpayment by NM of €460,000. The Agreement contained a choice of law clause in favour of German law, a jurisdiction clause specifying Munich, and an arbitration provision indicating that any dispute arising out of the Agreement was to be settled by arbitration pursuant to the International Chamber of Commerce's Rules of Arbitration. NM's father, manager and fellow appellant, JM, guaranteed NM's obligation to the extent of €409,512.13. His guarantee provided that it was subject to German law with jurisdiction in Munich, but it did not contain an arbitration provision. NM and JM were both Ontario residents. The nine car races set out in the Agreement took place across Europe, including in Germany, with no races in North America.

In October 2015, Hilmer sued NM and JM in a Munich court, claiming breach of contract and payment of the amount due under the Agreement and guarantee. The appellants did not defend, and Hilmer obtained default judgment for €460,000. This German judgment was served on the appellants in 2017, who did not appeal or move to set it aside. Subsequently, Hilmer brought an Ontario action requesting recognition and enforcement of the German judgment and moved for summary judgment. The motion judge granted summary judgment in Hilmer's favour, rejecting NM and JM's arguments that the German court had no jurisdiction over the dispute and that the arbitration clause made recognizing/enforcing the German judgment against public policy. First, the motion judge found that the German proceeding was served in a faultless manner. Moreover, the Munich court had a real and substantial connection to the dispute since the Agreement expressed the parties' intention to address issues in Munich according to German law, the races were in Germany, and the debt was owed to a German entity. Regarding public policy, the motion judge acknowledged the recent judicial trend of staying court proceedings in the face of an arbitration clause. However, it was for the German court to address this issue – NM and JM should have objected to the German court proceeding originally, relying on the arbitration provision, instead of taking no action.

issues:

Did the motion judge err by holding that there was a real and substantial connection sufficient to support the German court's jurisdiction, even despite the Agreement's arbitration clause?
Was it a breach of natural justice or contrary to Canadian public policy to enforce the German judgment?

holding:

Appeal dismissed.

reasoning:

1. No

The Court held that the motion judge properly concluded that the German court had jurisdiction. Per Chevron, when asked to recognize and enforce a foreign judgment, courts must determine whether the foreign court properly assumed jurisdiction, via the real and substantial connection test or the traditional bases of jurisdiction (attornment and presence). If jurisdiction is made out, the defendant can assert the defences of breach of natural justice, public policy, and fraud. Applied here, no fault could be found in the motion judge's conclusion that the German court had jurisdiction based on the Agreement's jurisdiction and choice of law clauses. The traditional enforcement requirements that the judgment be final and for a definite sum of money were also fulfilled. Although the motion judge erred in stating that the races took place in Germany, when not all of them did, this minor mistake did not detract from his findings.

Furthermore, contrary to the appellants' assertion, the arbitration provision did not function to automatically negate the German court's jurisdiction. Relying on Ontario law since German law was neither pleaded nor proved, arbitration agreements are not self-enforcing. Instead, parties wishing to rely on an arbitration clause must seek a stay of the ongoing court proceeding. If they fail to do so, there is no barrier to a court hearing the dispute. Assuming a similar stay would have been available from the German court, NM and JM's failure to seek a stay was fatal to their arbitration clause argument.

2. No

Natural justice did not bar recognition and enforcement here, since the appellants were properly served with the original claim and the default judgment but opted not to engage. The public policy defence requires considering whether enforcement would be contrary to Canadian views of justice and basic morality. The appellants' arguments relating to the UN Convention on foreign arbitral awards and the International Commercial Arbitrations Act each failed, since both required the party seeking to rely on an arbitration clause to request a referral to arbitration by the court. Overall, the motion judge correctly observed that the arbitration clause was a matter to be addressed by the Munich court, and that NM and JM had no reasonable basis for failing to assert the arbitration clause in that forum. Hence, enforcement was not against public policy.

Hejno v. Hejno, 2025 ONCA 876

[Tulloch C.J.O., Lauwers, and Dawe JJ.A.]

Counsel:

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

A.J. Butcher, for the respondent

Keywords: Wills and Estates, Wills, Validity, Interpretation, Testamentary Intentions, Civil Procedure, Appeals, Fresh Evidence, Succession Law Reform Act, R.S.O. 1990, c. S.26., s. 21.1, Palmer v. The Queen, [1980] 1 S.C.R. 759, Hadley Estate (Re), 2017 BCCA 311, Penate v. Martoglio, 2024 ONCA 166, Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd., 2023 BCCA 436, Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, Swiss Reinsurance Company v. Camarin Limited, 2015 BCCA 466, State Farm Mutual Automobile Insurance Co. v. Aviva Canada Inc., 2015 ONCA 920

facts:

JJH died on May 6, 2024. He had been in a common law relationship with the respondent, JH. He had two children with his former spouse, DH and JH, and one grandchild, SH.

In 2018, JJH signed a properly executed will that established a spousal trust for the respondent, JH, and established a second family trust primarily for SH's benefit. In 2022, JJH prepared new primary and secondary wills that were not properly executed because there was only one witness, his accountant L. These wills established a spousal trust for the respondent but did not create a second family trust for SH. No signed original of the 2022 wills had been located, but L made and kept a photocopy. In 2024, JJH consulted an estates lawyer, Ss and drafted new wills that were prepared based on the 2022 wills, but with certain "slip sheets" inserted. The new wills were never completed before his death.

After JJH's passing, the respondent located the 2024 drafts and applied to court to have them validated under s. 21.1 of the Succession Law Reform Act ("SLRA"). In the alternative, she sought validation of the 2022 wills.

The record before the application judge consisted of affidavits from three key witnesses L, S, and the respondent. S deposed that JJH was indecisive in early 2024 and had not finalized testamentary instructions. However, the application judge declared the 2024 drafts to be valid. The appellants appealed that order and argued those drafts did not reflect JJH's true testamentary intentions. The 2018 will came to light after the application judge's order and the filing of the appeal.

issues:

Is the 2018 will admissible as fresh evidence?
Are the 2024 drafts invalid?
Should the 2022 wills' validity be remitted to the Superior Court?

holding:

Appeal allowed.

reasoning:

1. Yes

The Court held the 2018 will was admissible under the test in Palmer v. The Queen. It was relevant, credible, could not have been discovered earlier with due diligence, and could have reasonably affected the result. Its existence might have weighed against validating the later not fully executed 2022 wills and the 2024 drafts in the absence of a cogent explanation for the change in distribution.

2. Yes.

The Court set aside the application judge's order validating the 2024 drafts and declared those drafts invalid. The absence of reasons provided by the application judge removed deference and justified intervention. Courts must ensure that documents validated under s. 21.1 of the SLRA truly expressed the testator's wishes. The 2024 wills were not duly executed in accordance with the governing statutory formalities, and, unlike the 2022 wills, they were not executed even in an imperfect manner. The evidence of S confirmed that JJH remained undecided on aspects of his estate planning.

3. Yes.

The Court remitted the validity of the 2022 wills to the Superior Court. Appellate courts rarely engaged in first instance fact finding. It was disfavoured if the court of first instance did not make essential factual findings or provide reasons, there were evidentiary conflicts, and/or credibility and testimonial evidence were at issue. This rule applied here. The validation of an improperly executed will was a fact intensive inquiry that often turned on extrinsic evidence. Undertaking that inquiry would require the Court to make findings on a matter not addressed by the application judge which involved conflicting evidence that may have implicated credibility and required testimony. Deciding this issue on appeal would not save the parties time and expense either. Thus, the most efficient path forward was remittal to the Superior Court.

Liu v. Hao, 2025 ONCA 883

[Paciocco, George and Monahan JJ.A.]

Counsel:

R. He, for the appellants

J. Wang and Y. Mykhaylychenko, for the respondents

facts:

The respondent investors were defrauded of a combined $2.65 million invested in a second mortgage on a property represented to the investors as a gas station development by the appellant, 2640353 Ontario Inc. ("264 Inc."), whose principals, B.Y.S. and P.Y., personally guaranteed the loan. The funds were raised for the appellants by employees of D.H. Professional Corporation ("DHPC"), which acted on the first mortgage and brokered the second, through misrepresentations and material non‑disclosures by DHPC's office manager, S.L., and its in‑house mortgage broker, D.Z. All investment flows were handled through DHPC's trust account.

The motion judge granted summary judgment imposing joint and several liability for $3,760,020 against the DHPC defendants, the appellants, and other 264 Inc. principals, finding the record of misdirected payments uncontroverted and the appellants' liability patent. Additionally, $319,000 in substantial indemnity costs were also awarded. It was uncontested that 264 Inc. defaulted on the second mortgage and did not repay the loan, and the motion judge found 264 Inc. benefited from most of the funds, even if it did not directly receive all of them.

On appeal, the appellants raised several grounds of appeal and sought leave to appeal the substantial indemnity costs award.

issues:

Did the motion judge err in granting summary judgment by failing to properly apply or engage the framework set out in Hryniak v. Mauldin?
Did the motion judge err in making liability findings based on factual conclusions that were not supported by the evidentiary record?
Did the motion judge err in finding an agency relationship in respect of the $900,000 payment on summary judgment despite conflicting evidence as to authorization, knowledge, and receipt?
Did the motion judge err in imposing joint and several liability on the appellants?
Did the motion judge err by double counting interest payments?
Should leave to appeal a costs order be granted?

holding:

Appeal dismissed.

reasoning:

1. No.

The Court held that the motion judge did not err under Hryniak. Although he did not recite the two‑step test verbatim, his findings that the misdirected payments record was "uncontroverted" and that the appellants' "liability was patent on the face of their dealings" necessarily implied there was no genuine issue requiring a trial, consistent with Royal Bank of Canada v. 1643937 Ontario Inc.

2. No.

The Court found no palpable and overriding error in the motion judge's underlying factual conclusions. The appellants' evidence showed that finalizing the second mortgage took approximately three months after the February 16, 2022 mortgage commitment, during which DHPC was replaced as counsel. P.Y.'s affidavit confirmed that new counsel was retained to register the second mortgage. All material payments benefiting the appellants were made by March 29, 2022, before the second mortgage was registered. P.Y. further confirmed that D.Z. acted as a mortgage broker for 264 Inc., which required additional financing beyond the first mortgage and obtained those funds from the respondent investors. This evidence established that the DHPC Defendants acted as agents for 264 Inc. when trust funds were disbursed for its benefit. This uncontradicted evidence confirmed the existence of the agency relationship.

3. No.

The Court rejected the appellants' agency arguments. The Court further concluded that any dispute over the $900,000 payment was immaterial in light of joint and several liability. Whether the appellants benefited from the $900,000 or not, unless the finding of joint and several liability gets set aside, the outcome of the appeal remains the same. In any event, the motion judge was entitled to find that the $900,000 payment was authorized. At a minimum, it was authorized by ostensible authority and acquiescence. The payment also benefited the appellants as construction funding. The Court clarified that P.Y.'s evidence, which was that the appellants did not know about the $900,000 payment, did not undermine the validity of the payment or the authority of the agency involved. If a payment from the mortgage fund in the agent's hands was ultimately used for an authorized purpose, the payment was authorized regardless of whether the principal was alerted beforehand to the specifics of the particular payment.

4. No.

The Court was not persuaded that the motion judge erred in imposing joint and several liability. It emphasized the evidentiary record that the defendants worked together to deprive the investors of their funds and that 264 Inc. received the majority of the benefit (slightly more than half, even excluding the $900,000). This was a finding available to the motion judge through summary judgment on the uncontested evidence, and it supported the punitive damages award against all the defendants, including the appellants.

5. No.

The Court held there was no double counting of interest because the motion judge explicitly deducted $253,100 in interest that the respondents had received in calculating damages.

6. No.

The Court declined to grant leave to appeal the costs order. It reiterated that leave is granted only in obvious cases showing strong grounds of discretionary error: Brad-Jay Investments Limited v. Village Developments Limited. Substantial indemnity costs were warranted in this case, given that the defendants turned a case where their liability was patent on the face of their dealings into relatively extensive litigation. Significant deference applied, and the appellants showed no disproportionality.

2642948 Ontario Inc. v. Jonny's Antiques Ltd. 2025 ONCA 892

[Trotter, Copeland and Gomery JJ.A.]

Counsel:

DJ, acting in person, for the appellant/responding party

J. Timms, for the respondent/moving party

facts:

2642948 Ontario Inc. ("264") loaned money to Jonny's Antiques Ltd. secured by a mortgage over Jonny's Antiques' commercial property in Shakespeare, Ontario. After Jonny's Antiques failed to respond to a demand for payment of the mortgage principal and made no payments, 264 attempted to serve statutory notices under the Mortgages Act at the property, which appeared vacant. In April 2024, after repeated unsuccessful service attempts and confirmation by a bailiff that the premises were vacant, 264 entered the property and changed the locks, thereby taking possession. Jonny's Antiques attempted to re-enter by force and then obtained a certificate of pending litigation ("CPL") on an ex parte basis, which was registered on title.

264 brought a motion to set aside the CPL. The motion judge found that 264 had taken vacant and peaceable possession of the property and ordered that the CPL be vacated, declaring that 264 Ontario remained in lawful possession. While Jonny's Antiques sought a stay pending appeal, the stay was dismissed, and the property was sold. Jonny's Antiques appealed the order vacating the CPL, and 264 brought a motion to quash the appeal, which were heard at the same time.

issues:

Did the motion judge err in finding that 264 was entitled to enforce its mortgage by taking vacant and peaceable possession of the mortgaged property and in setting aside the CPL?
Did the motion judge act procedurally unfairly by granting declaratory relief and permitting mortgage enforcement without a trial?
Was the appeal clearly without merit or an abuse of process, meaning it should be quashed?

holding:

Appeal and motion dismissed.

reasoning:

1. No. The Court held the motion judge's conclusion was supported by the record. Statutory notices sent to the property were returned unclaimed, a process server repeatedly found no one there, and a bailiff confirmed the premises appeared vacant before changing the locks without incident. According to Hume, it was open to the motion judge to find 264 took vacant and peaceable possession and that the CPL improperly blocked a sale to recover the mortgage debt.

2. No. There was no unfairness. The mortgage terms permitted self-help remedies on default, including entry, possession and sale. The declaration was properly sought on the CPL motion because the possession issue arose after the action started, and the possession question could be decided on the motion record without a trial.

3. No. The appeal was not manifestly devoid of merit and was not abusive. A lack-of-merit quash motion brought after perfection (and argued the same day as the appeal) generally just increases costs without real utility.

SHORT CIVIL DECISIONS

Jiang v. 12280451 Canada Inc., 2025 ONCA 891

[Simmons, Miller and Wilson JJ.A.]

Counsel:

M. Ryu and J. Ku, for the appellants

A. Di Battista, for the respondents

1255717 Ontario Ltd. V. Glenrio Financing Limited, 2025 ONCA 884

[Trotter, Copeland and Gomery JJ.A.]

Counsel:

MR, acting in person

D. Richter, for the appellants 1255717 Ontario Ltd., 1255705 Ontario Ltd. And 1290976 Ontario Ltd.

P. J. Monaghan, for the respondents

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Striking Pleadings, Abuse of Process, Appeals, Fresh Evidence

Rai v. Rai, 2025 ONCA 879

[Trotter, Copeland and Gomery JJ.A.]

Counsel:

V. Pohani, for the appellant

E. Aiaseh, for the respondent

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.

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Court Of Appeal Summaries (December 15 – 19, 2025)

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