Court Of Appeal Summaries (August 3 – August 7, 2025) - Civil Law

Article Insights

John Polyzogopoulos’s articles from Blaney McMurtry LLP are most popular:

in Canada
with readers working within the Insurance and Law Firm industries

Blaney McMurtry LLP are most popular:

within Insolvency/Bankruptcy/Re-Structuring and Intellectual Property topic(s)
with Inhouse Counsel

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of August 3 to 7, 2026.

It was a busy week. There were several employment law and MedMal decisions of interest released this week. Other topics included defamation, a contract case involving the indoor management rule, an estate litigation matter challenging gifts made during the donor’s lifetime and an unjust enrichment claim in a family law case.

In Baker v. Van Dolder’s Home Team Inc. and Li v Wayfair Canada ULC the Court addressed the enforceability of With Cause and Without Cause Provisions in employment contracts, specifically whether the phrase “at any time”, “at any time for any reason” rendered such clauses inconsistent with the Employment Standards Act, 2000. The Court clarified the interpretive framework for termination provisions, holding that employment contracts must be interpreted in a manner that furthers employment law principles and protects vulnerable employees, while still giving effect to the objective intentions of the parties. Ultimately, the Court found that the termination provisions in both contracts reflected an intention to comply with ESA minimum standards, allowing the appeal in part in Baker v. Van Dolder and dismissing the appeal in Li v. Wayfair.

In Wigdor v. Facebook Canada Ltd., the Court mostly allowed the appeal in a wrongful dismissal case, except with respect to punitive damages, and dismissed the cross-appeal made by Facebook. The Court found that although there was no error in the application judge’s conclusion that the termination provisions in the employment agreement contravened the Employment Standards Act, the application judge erred in denying damages for unvested Restricted Stock Units.

In Ibrahimova v. Cavanagh, the Court dismissed an appeal from a tragic MedMal case where a 28-year-old woman lost her legs and kidneys and suffered a stroke and seizures after she went into septic shock as a result of the appellant’s failure to send her to treat her miscarriage promptly. Instead of being sent to the o/b team in London, she was sent home while she was miscarrying, with resulted in the septic shock that caused her catastrophic injuries. The Court upheld the trial judge’s findings on causation.

In Bradley v. Wang, the Court dismissed family medicine resident’s appeal from the trial judge’s decision finding that he administered the respondent a vaccine in a negligent manner and caused the respondent’s damages, including loss of income and pension loss. The Court found no error in the trial judge’s analysis of the credibility and reliability of the parties’ evidence, “but for” causation and mitigation of damages issues. The Court emphasized that a trial judge’s decision to believe or disbelieve all or any part of a witness’s testimony will be owed significant deference provided they have engaged in a reasoned assessment of their testimony and addressed key challenges to credibility and reliability raised before them.

In Canadian Union of Postal Workers v. Quebecor Media Inc., the Court dismissed the appellant union’s appeal from the trial judge’s dismissal of their defamation action. The action arose from remarks made by the respondents in a broadcast and published article in July 2014 concerning the appellant’s participation in a “Protest in Solidarity with Gaza” demonstration. The Court agreed with the trial judge that while these remarks and communications were defamatory and suggested that the appellants supported terrorism and Hamas, a designated terrorist organization, the respondents were entitled to rely on the defences of fair comment and responsible communication and that some of their communications attracted the protection of statutory privilege under the Libel and Slander Act. The Court emphasized that within the defence of fair comment, what constitutes “comment” is generously interpreted, and the analysis is highly contextual. The Court found that the trial judge did not err on any of the grounds claimed by the appellant and that the defence of fair comment extends to even “farfetched or extreme” opinions, provided they are grounded in stated or otherwise known facts.

In Mathur v. Ontario, the Court dismissed a motion to reopen a climate change Charter appeal after Ontario repealed the legislative provisions that were at the centre of the case. The Court held that reopening of the appeal was not in the interests of justice because the application judge retains discretion to hear the remitted matter notwithstanding the repeal of the legislation with the benefit of additional evidence and argument. The parties were directed to proceed before the application judge in accordance with the original appeal order.

In Curridor v. Millstone Homes Inc., the Court allowed an appeal from a trial judgment that had found a residential agreement of purchase and sale (APS) to be valid and enforceable. The Appellant argued the APS was fraudulently executed using the owner’s signature stamp without authorization while the owner was on vacation. The trial judge had upheld the APS in reliance on the indoor management rule in s. 19 of the OBCA. The Court allowed the appeal and the matter was remitted for a new trial, mainly as a result of the trial judge’s errors in excluding relevant evidence.

In Buffa v. Giacomelli, the Court dismissed the appellant’s appeal of the application judge’s dismissal of his application to set aside inter vivos transfers of over $1,700,000 made by his mother to his sister on the grounds of undue influence and lack of donative intent. The Court found no error in the application judge’s findings that there was no undue influence and that the deceased had intended to make a gift to her daughter.

In Stacey v. Vey, the appellant successfully argued that the trial judge erred in finding unjust enrichment and a joint family venture, and in awarding the respondent 41% of the proceeds of sale despite the parties’ written equity agreement that only gave the respondent 10%.

Finally, in Sui v. Ontario (Attorney General) a motion by a previously declared vexatious litigant for an extension of time to perfect an appeal was dismissed, and a further vexatious litigant review process was initiated by the Court.

Wishing everyone an enjoyable weekend.

Civil Decisions

Baker v. Van Dolder’s Home Team Inc., 2026 ONCA 568

Keywords: Contracts, Interpretation, Employment, Termination, Wrongful Dismissal, Defences, Just Cause, Employment Standards Act 2000, S.O. 2000, c. 41, Amberber v. IBM Canada Ltd., 2018 ONCA 571, Baker v. Van Dolder’s Home Team Inc., 2025 ONSC 952, Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029, aff’d 2024 ONCA 915, leave to appeal ref’d [2025] S.C.C.A. No. 58, Li v. Wayfair Canada ULC., 2025 ONSC 2959, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, Rossman v. Canadian Solar Inc., 2019 ONCA 992, Waksdale v. Swegon North America Inc., 2020 ONCA 391, leave to appeal ref’d [2020] S.C.C.A. No. 292, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, Ceccol v. Ontario Gymnastic Federation (2001), 55 O.R. (3d) 614 (C.A.), Investors Compensation Scheme Ltd. v. West Bromwich Building Society, [1998] 1 All E.R. 98 (H.L.), Bertsch v. Datastealth Inc., 2025 ONCA 379, Emond v. Trillium Mutual Insurance Co., 2026 SCC 3, Henderson v. Slavkin et al., 2022 ONSC 2964, Markovic v. 1756982 Ontario Limited, 2015 CanLII 58892 (Ont. L.R.B.), Roden v. Toronto Humane Society (2005), 202 O.A.C. 351 (C.A.), MacDonald v. ADGA Systems International Ltd. (1999), 117 O.A.C. 95 (C.A.), Fogelman v. IFG, 2021 ONSC 4042, Singh v. Adecco Employment Services Limited, 2019 ONSC 1512, Farah v. EODC Inc., 2017 ONSC 3948, Ilie v. S210 Technologies Corp. (2003), 33 C.C.E.L. (3d) 170 (Ont. S.C.), Oudin v. Centre Francophone de Toronto, 2016 ONCA 514, leave to appeal ref’d, [2016] S.C.C.A. No. 391, Dimson v. KTI Kanatek Technologies Inc., 2013 ONCA 454, Clarke v. Insight Components (Canada) Inc., 2008 ONCA 837, Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967, Raposo v. CA Canada Company, 2018 ONSC 4226, Simpson v. Global Warranty Management Corporation, 2014 ONSC 724, aff’d 2014 ONSC 6916 (Div. Ct.), Nikolic v. Computer Associates, [2000] O.T.C. 458 (S.C.), Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.), leave to appeal ref’d [2005] S.C.C.A. No. 25, Plester v. Polyone Canada Inc., 2011 ONSC 6068, aff’d 2013 ONCA 47, De Castro v. Arista Homes Limited, 2025 ONCA 260, Rahman v. Cannon Design Architecture Inc., 2022 ONCA 451, leave to appeal appln discont’d [2023] S.C.C.A. No. 83, Nemeth v. Hatch Ltd., 2018 ONCA 7, J. Moreau, “Fixing the Broken Law of Termination Clauses” (2020) 22:2 C.L.E.L.J. 143

Wigdor v. Facebook Canada Ltd., 2026 ONCA 572

Keywords: Contracts, Employment, Termination, Wrongful Dismissal, Damages, Statutory Interpretation, Employment Standards Act, 2000, S.O. 2000, c. 41, ss. 60, 61, 9, 5, 54, 56-61, 64, 65, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Rossman v. Canadian Solar, 2019 ONCA 992, Bertsch v. Datastealth Inc., 2025 ONCA 379, Amberber v. IBM Canada Ltd., 2018 ONCA 571, Rahman v. Cannon Design Architecture Inc., 2022 ONCA 451, Livshin v. The Clinic Network Canada Inc., 2021 ONSC 6796, Matthews v. Ocean Nutrition, 2020 SCC 26, Paquette v. TeraGo Networks Inc., 2016 ONCA 618, Taggart v. Canada Life Assurance Company (2006), 146 A.C.W.S. (3d) 674 (Ont. C.A.), Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Canada (Minister Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Wilds v. 195612 Ontario Inc., 2024 ONSC 3452, Groves v. UTS Consultants Inc., 2019 ONSC 5605, Sandhu v. Solutions 2 go Inc., 2012 ONSC 2073, Waksdale v. Swegon North America Inc., 2020 ONCA 391, Mikelsteins v. Morrison Hershfield Limited, 2019 ONCA 515, Honda Canada Inc. v. Keays, 2008 SCC 39, The Construction of Statutes, 7th ed. (Toronto: LexisNexis, 2022)

Ibrahimova v. Cavanagh, 2026 ONCA 573

Keywords: Torts, Negligence, MedMal, Standard of Care, Causation, “But For” Test, Civil Procedure, Evidence, Witnesses, Experts, Burden of Proof, Adverse Inferences, Ibrahimova v. Cavanagh, 2025 ONSC 4808, Sacks v. Ross, 2017 ONCA 773, Hasan v. Trillium Health Centre (Mississauga), 2024 ONCA 586, Goodman v. Viljoen, 2012 ONCA 896, Gumbley v. Vasiliou, 2025 ONCA 851, Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, Benhaim v. St-Germain, 2016 SCC 48, Arndt v. Smith, [1997] 2 S.C.R. 539, Ediger v. Johnston, 2013 SCC 18, Salter v. Hirst, 2010 ONSC 3440, R. v. Ellis, 2013 ONCA 9, Brown v. Meaney, 2026 ONCA 445

Bradley v. Wang, 2026 ONCA 570

Keywords: Torts, Negligence, MedMal, Standard of Care, Causation, “But For” Test, Defences, Mitigation, Civil Procedure, Evidence, Witnesses, Credibility, Farej v. Fellows, 2022 ONCA 254, Monk v. Farmers’ Mutual Insurance Company (Lindsay), 2019 ONCA 616, Liu v. Huang, 2020 ONCA 450, Housen v. Nikolaisen, [2002] 2 SCR 235, Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51

Canadian Union of Postal Workers v. Quebecor Media Inc., 2026 ONCA 562

Keywords: Torts, Defamation, Defences, Fair Comment, Responsible Communication, Statutory Privilege, Libel and Slander Act, R.S.O. 1990, c. L.12, s. 3(2), WIC Radio Ltd. v. Simpson, 2008 SCC 40, Grant v. Torstar Corp., 2009 SCC 61, Housen v. Nikolaisen, 2002 SCC 33, Berry v. Pulley, 2002 SCC 40, Public Service Alliance of Canada v. Canada (Attorney General) (2002), 62 O.R. (3d) 682 (C.A.), Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 38 O.R. (3d) 97, Bent v. Platnick, 2020 SCC 23, Ross v. Beutel, 2001 NBCA 62, Solmar Inc. v. Hall, 2026 ONCA 367, Hansman v. Neufeld, 2023 SCC 14, Neufeld v. Bondar, 2025 BCCA 51, Mainstream Canada v. Staniford, 2013 BCCA 341, Canadian Union of Postal Workers v. B’nai Birth, 2021 ONCA 529, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26

Mathur v. Ontario, 2026 ONCA 561

Keywords: Public Law, Environmental Law, Constitutional Law, Charter Rights, Civil Procedure, Appeals, Reopening, Canadian Charter of Rights and Freedoms, ss. 7 and 15, Cap and Trade Cancellation Act, 2018, S.O. 2018, c. 13, ss. 3, 16, Climate Change Mitigation and Low-carbon Economy Act, 2016, S.O. 2016, c. 7, s. 3(1), Bill 68 An Act to implement Budget measures and to enact and amend various statutes, Schedule 1, Rules of Civil Procedure, rr. 59.06, 61.16(6.1), 37.14, Mathur v. Ontario, 2024 ONCA 762, leave to appeal ref’d [2024] S.C.C.A. No. 534, First Elgin Mills Development Inc. v. Romandale Farms Ltd., 2015 ONCA 54, Meridian Credit Union Limited v. Baig, 2016 ONCA 942, Mujagic v. Kamps, 2015 ONCA 360, leave to appeal ref’d [2015] S.C.C.A. No. 330, McGrath v. Joy, 2023 ONCA 46, Chuang v. Toyota Canada Inc., 2016 ONCA 852, Geliedan v. Rawdah, 2020 ONCA 339, Doman Forest Products Ltd. v. GMAC Commercial Credit Corp. – Canada, 2005 BCCA 111, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342

Curridor v. Millstone Homes Inc., 2026 ONCA 571

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Agency, Corporations, Indoor Management Rule, Damages, Pre-Judgment Interest, Civil Procedure, Evidence, Admissibility, Affidavits, Business Corporations Act, R.S.O. 1990, c. B.16, s. 19, Courts of Justice Act, R.S.O. 1990, c. C. 43, ss. 127, 128, 129, 130, 130(2)(a), (f) and (g), Rules of Civil Procedure, rr. 49.10, 53.01(1), 53.02, 53.02(2), 1264777 BC Ltd. v. 0694813 BC Ltd., 2023 BCCA 410, Aubin v. Synagogue and Jewish Community Centre of Ottawa (Soloway Jewish Community Centre), 2024 ONCA 615

Buffa v. Giacomelli, 2026 ONCA 566

Keywords: Wills and Estates, Undue Influence, Presumption of Undue Influence, Resulting Trusts, Inter Vivos Gifts, Donative Intent, Corroborative Evidence, Evidence Act, R.S.O. 1990, c. E.23, s. 13, Vout v. Hay, [1995] 2 S.C.R. 976, Neuberger Estate v. York, 2016 ONCA 191, Goodman Estate v. Geffen, [1991] 2 S.C.R. 353, Morreale v. Romanino, 2017 ONCA 359, Foley (Re), 2015 ONCA 382, Housen v. Nikolaisen, 2002 SCC 33, Pecore v. Pecore, 2007 SCC 17, McNamee v. McNamee, 2011 ONCA 533, Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854, Sands Estate v. Sonnwald (1986), 9 C.P.C. (2d) 100 (Ont. H.C.J.), The Canadian Law of Unjust Enrichment and Restitution, 2nd ed. (Toronto: LexisNexis Canada, 2022)

Stacey v. Vey, 2026 ONCA 564

Keywords: Family Law, Property, Unjust Enrichment, Joint Family Venture, Remedies, Damages, Quantification, Monetary Value of Contributions, Value Survived, Kerr v. Baranow, 2011 SCC 10, Moore v. Sweet, 2018 SCC 52, Birmingham v. Ferguson, 2004 CanLII 4764 (ON CA), Pettkus v. Becker, [1980] 2 S.C.R. 834, Nasser v. Mayer‑Nasser 2000 CanLII 5654 (ON CA), Wilson v. Fotsch, 2010 BCCA 226, Panara v. Di Ascenzo, 2005 ABCA 47

Sui v. Ontario (Attorney General), 2026 ONCA 560

Keywords: Civil Procedure, Vexatious Litigation, Frivolous, Vexatious, Abuse of Process, Appeals, Perfection, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 140(4)(e), Provincial Offences Act, R.S.O. 1990, c. P.33, Rules of Civil Procedure, rr. 3.02, 1.04(1), 2.03, 2.2, 2.1, Dale v. Toronto Real Estate Board, 2025 ONCA 476, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Hart v. Fullerton, 2021 ONCA 438, Chavali v. The Law Society of Upper Canada, 2007 ONCA 482, Damallie v. Ping, 2016 ONCA 603

Short Civil Decisions

Peninsula Employment Services Ltd. v. Castillo, 2026 ONCA 563

Keywords: Civil Procedure, Costs, Appeals, Stay of Proceedings, Motions, Abandonment, Abuse of Process, Orders, Disclosure, Anton Piller Orders, Rules of Civil Procedure, r. 37.09(3)

CIVIL DECISIONS

Baker v. Van Dolder’s Home Team Inc., 2026 ONCA 568

[Zarnett, Monahan, and Rahman JJ.A.]

Counsel:

T. Lawson, B. Kain, M. Fimiani, and J. Gray for the appellant Van Dolder’s Home Team Inc.

F. Pejovic and J. Jagpal, for the respondent FB

A.J. McCreary, M.T. Maimets, and S. Gellatly, for the intervenor Ontario Chamber of Commerce

J. Esmonde, C. Eisen, and D. McQuillan, for the interveners Parkdale Community Legal Services and Income Security Advocacy Centre

S. Ostrowski and B. Hahn, for the appellant SL

E.J. O’Dwyer and K. Brennan, for the respondent Wayfair Canada ULC

Keywords: Contracts, Interpretation, Employment, Termination, Wrongful Dismissal, Defences, Just Cause, Employment Standards Act 2000, S.O. 2000, c. 41, Amberber v. IBM Canada Ltd., 2018 ONCA 571, Baker v. Van Dolder’s Home Team Inc., 2025 ONSC 952, Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029, aff’d 2024 ONCA 915, leave to appeal ref’d [2025] S.C.C.A. No. 58, Li v. Wayfair Canada ULC., 2025 ONSC 2959, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, Rossman v. Canadian Solar Inc., 2019 ONCA 992, Waksdale v. Swegon North America Inc., 2020 ONCA 391, leave to appeal ref’d [2020] S.C.C.A. No. 292, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, Ceccol v. Ontario Gymnastic Federation (2001), 55 O.R. (3d) 614 (C.A.), Investors Compensation Scheme Ltd. v. West Bromwich Building Society, [1998] 1 All E.R. 98 (H.L.), Bertsch v. Datastealth Inc., 2025 ONCA 379, Emond v. Trillium Mutual Insurance Co., 2026 SCC 3, Henderson v. Slavkin et al., 2022 ONSC 2964, Markovic v. 1756982 Ontario Limited, 2015 CanLII 58892 (Ont. L.R.B.), Roden v. Toronto Humane Society (2005), 202 O.A.C. 351 (C.A.), MacDonald v. ADGA Systems International Ltd. (1999), 117 O.A.C. 95 (C.A.), Fogelman v. IFG, 2021 ONSC 4042, Singh v. Adecco Employment Services Limited, 2019 ONSC 1512, Farah v. EODC Inc., 2017 ONSC 3948, Ilie v. S210 Technologies Corp. (2003), 33 C.C.E.L. (3d) 170 (Ont. S.C.), Oudin v. Centre Francophone de Toronto, 2016 ONCA 514, leave to appeal ref’d, [2016] S.C.C.A. No. 391, Dimson v. KTI Kanatek Technologies Inc., 2013 ONCA 454, Clarke v. Insight Components (Canada) Inc., 2008 ONCA 837, Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967, Raposo v. CA Canada Company, 2018 ONSC 4226, Simpson v. Global Warranty Management Corporation, 2014 ONSC 724, aff’d 2014 ONSC 6916 (Div. Ct.), Nikolic v. Computer Associates, [2000] O.T.C. 458 (S.C.), Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.), leave to appeal ref’d [2005] S.C.C.A. No. 25, Plester v. Polyone Canada Inc., 2011 ONSC 6068, aff’d 2013 ONCA 47, De Castro v. Arista Homes Limited, 2025 ONCA 260, Rahman v. Cannon Design Architecture Inc., 2022 ONCA 451, leave to appeal appln discont’d [2023] S.C.C.A. No. 83, Nemeth v. Hatch Ltd., 2018 ONCA 7, J. Moreau, “Fixing the Broken Law of Termination Clauses” (2020) 22:2 C.L.E.L.J. 143

facts:

The Court observed that there is uncertainty in the jurisprudence as to whether termination provisions in employment contracts comply with the Employment Standards Act (“ESA”). that has yet to be resolved. These two appeals provided an opportunity for the Court to clarify the relevant legal principles governing the interpretation of termination provisions in employment contracts. This will not only assist trial courts which must determine the enforceability of such provisions but, more importantly, serve the mutual interest of the parties to such agreements, who might thereby be spared the necessity of litigating an issue of considerable consequence at a time when employees are particularly vulnerable.

In the first appeal, Baker v. Van Dolder’s Home Team Inc. (“Baker”), Mr. B argued that the termination provisions in his employment contract were inconsistent with the ESA and therefore void. On a motion for summary judgment, the motion judge found that both the Without Cause Provision and With Cause Provision were unenforceable. The Without Cause Provision permitted the employer to terminate Mr. B’s employment “at any time” which was found to be inconsistent with the ESA since the statute prohibits employers from terminating an employee’s employment at certain times. The With Cause Provision was unenforceable because, despite the contract setting out what conduct constituted “just cause” for purposes of the contract, it did not explain the ESA definition of “wilful misconduct” and how that statutory standard differed from the contractual standard.

However, in the second appeal, Li v. Wayfair Canada ULC (“Li”), Mr. L similarly argued that the Without Cause Provision in his employment contract was unenforceable because it permitted Wayfair to terminate his employment “at any time for any reason”, however the motion judge rejected this argument and found the provision enforceable, notwithstanding that it was otherwise almost identical to the provision at issue in Baker. The motion judge relied on the fact that the Without Cause Provision “clearly and repeatedly indicates payments will be made as ‘required by’ or ‘under the ESA’”. The motion judge also held that the With Cause Provision was enforceable since the Mr. L’s employment contract defined cause in relation to the ESA standard of “wilful misconduct” and provided that he would receive any minimum statutory entitlements required by the ESA.

issues:

1. Are the Without Cause Provisions in both employment contracts consistent with the ESA?

Is the Without Cause Provision in Mr. B’s contract consistent with the ESA?
Is the Without Cause Provision in Mr. L’s contract consistent with the ESA?

1. Is the phrase “for any reason” consistent with the ESA?

2. Are the With Cause Provisions in Mr. B’s employment contract consistent with the ESA?

holding:

Baker appeal allowed in part.

Li appeal dismissed.

reasoning:

The modern approach to contractual interpretation is a “practical, common-sense approach” that focuses on the objective intention of the parties in light of the words used and the surrounding circumstances (Sattva). Courts must “read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract.” (Sattva). Another important interpretive principle is that a contractual provision is not ambiguous merely because it is possible to identify multiple potential or hypothetical interpretations. Genuine ambiguity only arises where there are two or more reasonable, but differing interpretations considered in the context of the entire contract. Courts should not strive to find an ambiguity where none reasonably exists.

1. Yes.

The interpretation proposed by Mr. B and Mr. L required a literal reading of “at any time” (in Baker) and “at any time and for any reason” (in Li) (in both cases, the “Impugned Words”), considered in isolation from the context in which they are found. When viewed through the proper interpretive lens, the parties could not have intended that the inclusion of the Impugned Words meant that the employers in these cases were thereby entitled to terminate Mr. B’s or Mr. L’s employment despite express statutory provisions to the contrary.

a. Yes.

Although Mr. B argued before the motion judge that it was possible to interpret the Without Cause Provision as permitting termination contrary to statutory prohibitions, he also did not propose that the parties intended this result. This should have been sufficient for the motion judge to conclude that the inclusion of the Impugned Words did not give rise to an inconsistency with the ESA. Contractual provisions must be read in context, and it is evident that the parties could not have intended for the Impugned Words to have the meaning proposed by Mr. B on this appeal. It was obvious that at the time the contract was formed, Mr. B would not have intended that the inclusion of the Impugned Words in the Without Cause Provision would entitle his employer to deprive him of rights guaranteed in the ESA and other Ontario statutes. Nor could the employer have reasonably intended that the inclusion of the Impugned Words give rise to an inconsistency between the contract and these statutory protections. This interpretation would entirely defeat the purpose of the Without Cause Provision and it would expose the employer to additional consequences.

The words “at any time” in the Without Cause Provision read in context reflected a mutual intention that a without cause termination will be valid and legally effective regardless of when it occurs. But the use of this wording was not intended to render legally effective a termination that was expressly prohibited by the ESA. This understanding was consistent with the jurisprudence on the employer’s right to terminate employment contracts without cause, as discussed in Wallace.

b. Yes.

The provision expressly and repeatedly affirmed the intention of Mr. L’s employer to comply with the ESA. The repeated affirmation of Mr. L’s entitlement to the minimum benefits provided by the ESA made it implausible to interpret the Impugned Words as reflecting a mutual intention to permit the employer to violate statutory prohibitions on termination in the ESA and other statutes. The analysis discussed above for Baker applied equally here.

i. Yes.

The Court did not find the words “for any reason” in the Without Cause Provision to be inconsistent with the ESA. There was scrupulous intention to comply with the ESA, so it was illogical to read the inclusion of the words “for any reason” as somehow expressing a contrary intention by either the employer or Mr. L. The words “for any reason” meant that a termination will be consistent with the contract and therefore legally effective regardless of the reason for the termination. The employer is not required to give the employee a reason for terminating the employment contract. They simply need to provide the employee with their contractual entitlement on termination, express or implied, which must, at a minimum, be the ESA entitlements. However, the fact that the employer is not required to give a reason for terminating a contract without cause does not mean that the employer could plausibly maintain that the contract somehow purported to exempt it from prohibitions on termination found in the ESA.

2. Yes.

In order to appreciate the purpose and legal effect of “just cause” being used in a provision, the Court reviewed the difference between “just cause” at common law and “wilful misconduct” under the ESA. At common law, an employer is permitted to terminate an employment contract without notice or compensation where there is Just Cause for doing so. In this context, Just Cause is considered employee misconduct “that is incompatible with the fundamental terms of the employment relationship” (Render v. ThyssenKrupp Elevator (Canada) Limited). When an employer has Just Cause to terminate the employee, it does not need to provide the employee with reasonable notice or payment in lieu of notice under the common law. Under the ESA, employees are entitled to notice, benefits continuation and severance pay when their employment has been terminated, except where they have been “guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.” This has been characterized as the employee doing something “deliberately, knowing they are doing something wrong” and as being “bad on purpose” (Render). The Court has held that a higher level of employee misconduct is required to fall within the Wilful Misconduct standard in the regulation under the ESA entitled Termination and Severance of Employment, O. Reg. 288/01 (the “Regulation”) as compared with Just Cause at common law. Therefore, even if there is Just Cause at common law to terminate an employment contract without the need to provide reasonable notice, the employee will still be entitled to ESA notice (or pay instead of notice), benefit continuation and severance pay, unless they have engaged in Wilful Misconduct.

Despite the With Cause Provision seeming to be consistent with the ESA, the motion judge found that the provision gave rise to “potential unfairness” because “the employer has described in detail the contractual standard of just cause but given no detail or explanation of the ESA wilful misconduct standard, and that it differs from the contractual standard”. The Court found difficulties with this analysis. First, the motion judge did not explain the basis for his conclusion that many employees would assume they have “no entitlement” if they breach the contractual standards. Second, the motion judge suggested that the employer should provide details and an explanation of the ESA Wilful Misconduct standard and how it differed from the contractual standard, however the relationship between these concepts was complicated. The Court found that there was no ambiguity in the wording of the With Cause Provision and the motion judge made an error in principle by failing to consider the objective intention of the parties as expressed in the wording of the contract.

Wigdor v. Facebook Canada Ltd., 2026 ONCA 572

[George, Copeland, and Gomery JJ.A]

Counsel:

A. Shore and D. Rosenbluth, for the appellant/respondent by way of cross-appeal

G. Avraam and J. Bernardo, for the respondents/appellants by way of cross-appeal

T. Lawson, B. Kain, M. Fimiani and J. Gray, for the intervener, Canadian Association of Counsel to Employers

facts:

The appellant founded Chatham Inc. (“Chatham”) which provided consulting services to the respondents, Facebook Canada Ltd. (“Facebook”) and Meta Platforms, Inc. (“Meta”). In 2020, Meta purchased Chatham with the intention that the appellant and his team would be terminated by Chatham and employed by Facebook. As part of the purchase, Meta agreed to grant the appellant 43,380 Restricted Stock Units (“RSUs”) in Meta which, once vested under a four-year schedule, would become common shares. The RSUs were governed by four RSU Agreements from 2020 to 2023 that were incorporated into the appellant’s employment agreement, along with termination provisions that allowed the appellant to be terminated on two-weeks’ notice in the first three months of his employment (the “Termination Provisions”).

In 2023, Facebook terminated the appellant’s employment. The termination letter stated the appellant would be given his minimum entitlements under the Employment Standards Act (the “ESA”) and would receive supplemental entitlements if he signed a release. The appellant did not sign the release because it precluded him from disputing the forfeiture of unvested RSUs.

At trial, the application judge found that the Termination Provisions were unenforceable for contravening minimum standards under the ESA because they purported to contract out of the appellant’s right under s. 9 of the ESA to have his previous employment at Chatham be included in calculating his termination entitlements after the sale.

With respect to the RSUs, the appellant argued that the RSU Agreements were unenforceable for breach of ss. 60 and 61 of the ESA. However, the application judge held that s. 60 of the ESA applied only to working notice, while s. 61 applied only to pay in lieu of notice. Accordingly, she considered the appellant’s entitlement to damages for the RSUs only under s. 61, finding that the RSU Agreements complied with ESA minimum standards based on s. 61. She also went on to find that since the appellant’s RSU entitlements were governed by separate agreements, they were not subject to the ESA at all. She therefore dismissed his claim for the value of RSUs that would have vested during the common law notice period.

The appellant also claimed punitive damages on the basis that the respondents intentionally delayed paying his ESA entitlements by 10 months. The application judge dismissed this claim.

The appellant appealed from the application judge’s order dismissing his claim for the value of the RSUs and for the punitive damages. The respondents cross-appealed from the application judge’s finding that the Termination Provisions were void for contravention of the ESA, arguing that the application judge erred in her interpretation of the provisions and that the appellant had access to legal counsel.

issues:

The Cross-Appeal:

1. Did the application judge err in finding that the Termination Provisions of the employment agreement contravened the ESA’s minimum standards?

The Appeal:

2. Did the application judge err in denying the appellant damages for the RSUs what would have vested during the notice period?

Did the application judge err in her interpretation of ss. 60 and 61 of the ESA and their application to the appellant’s entitlement to the RSUs?
Did the application judge err in finding that the obligation on employers to not alter terms or conditions of employment during the statutory notice period did not apply to the appellant’s RSU entitlements?
Did the application judge err in finding that the ESA did not apply at all to the RSU entitlements?

3. Did the application judge err in declining to award the appellant punitive damages?

holding:

Appeal allowed in part. Cross-appeal dismissed.

reasoning:

The Cross-Appeal:

1. No.

Pursuant to s. 9 of the ESA, where a business is sold and an employee continues to be employed by the purchaser, the employee’s prior employment with the seller must be included for the purpose of any subsequent calculation of the employee’s length of employment. The Court upheld the application judge’s interpretation of s. 9 and the Termination Provisions, which mandated that the appellant’s nine years of his previous employment at Chatham be included in calculating his entitlement to notice and severance under the ESA. The Court further affirmed that there was no ambiguity as to the Termination Provisions. For ambiguity to exist, there must be two or more reasonable interpretations of the clause. However, the respondents’ proposed interpretation of the Termination Provisions was inconsistent with the entire scheme of the employment agreement. The Court further emphasized that termination clauses should be interpreted in a way that encourages employers to draft agreements that comply with the ESA and that courts should favour an interpretation that encourages employers to comply with its minimum standards.

The Court also rejected the respondents’ argument that the appellant was represented by counsel, cautioning against allowing considerations of an employee’s sophistication and access to independent advice to override the plain language in termination provisions.

The Appeal:

2. Yes.

The Court relied on the Supreme Court’s decision on Matthews v. Ocean Nutrition, which sets out two questions courts should consider when determining whether a terminated employee is entitled to damages for a bonus or similar entitlement: (1) whether but for the termination, the employee would have been entitled to the bonus during the reasonable notice period; and (2) whether the wording of the bonus plan unambiguously alters or removes the employee’s common law right to reasonable notice.

Regarding the first question, if the appellant remained employed during the 10-month common law notice period, he would have been entitled to the RSUs that would have vested.

On the second question, the Court agreed with what the appellant argued on appeal, that s. 61(1)(a) of the ESA requires that the lump sum payment an employee is entitled to where pay is provided in lieu of working notice must be calculated on the basis that there are no alterations to the terms or conditions of employment during the statutory notice period.

a. Yes.

The Court found that the application judge erred by reading ss. 60 and 61 disjunctively. Under s. 60, an employer cannot alter any term or condition of employment during the period of notice of termination. Under s. 61(1)(a), an employer must pay the employee, as a condition of termination without notice or with less notice than required under the ESA, a lump sum equal to what the employee would have been entitled to receive had notice been given in accordance with s. 60. Read together, ss. 60 and 61 are intended to place the employee in the same financial position whether they are given working notice or pay in lieu of notice. The Court also focused on the wording of s. 61(1)(a) and how it supports the interpretation that the entitlement to a lump sum is not limited to regular wages, but includes any compensation the employee would have been entitled to. Therefore, the lump sum payment must be based on terms and conditions of employment not being altered during the statutory notice period.

b. Yes.

The Court found that the application judge erred by approaching her consideration of whether the RSU Agreements complied with the ESA from the perspective of events at the time of termination, rather than at the time the contract was entered into. The legality and enforceability of terms in an employment contract must be assessed at the time the contract is entered into, not at the time of termination. Even if the employer complies with the ESA minimum standards at the time of termination, that compliance does not have the effect of remedying a termination provision that does not comply with the ESA minimum standards. The Court found that because the application judge erred in her interpretation of ss. 60 and 61, she also failed to consider whether the terms of the RSU Agreements contravened the ESA by purporting to alter a term or condition of employment during the statutory notice period.

The intervener argued that any form of equity-based compensation can never constitute “wages” within the definition of s. 1(1) of the ESA. The Court found it unnecessary to address this issue in the appeal.

c. Yes

The Court commented that the application judge’s conclusion that the appellant’s RSU entitlements were not subject to the ESA appeared to be inconsistent with her (erroneous) finding that s. 61 applied to the RSU entitlement but that the RSU Agreements were not contrary to s. 61. Moreover, the application judge’s conclusion that the ESA did not apply to the appellant’s RSU entitlements was contrary to the application provision of the ESA. The language of s. 3 of the ESA speaks to the broad application of the ESA to employees who perform work in Ontario. The Court emphasized that this is consistent with the ESA’s purpose as remedial legislation, designed to extend its protections to “as many employees as possible”.

The application judge relied on Mikelsteins v Morrison Hershfield Limited in finding that the ESA did not apply to the RSU entitlements. In Mikelsteins, the court held that the receipt of shares was not employment compensation subject to the ESA. The Court distinguished the case at bar on the basis that Mikelsteins concerned an “employee-owned engineering firm” that allowed certain employees to purchase shares in the parent corporation using their own funds. In contrast, the RSU entitlements were a form of employment compensation that automatically vested in consideration of ongoing employment.

3. No.

Punitive damages are restricted to “advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own”. The Court agreed with the application judge’s finding that the respondents’ conduct in not paying the pay in lieu of notice for 10 months, although approaching a finding of intentional misconduct, did not meet the high standard to award punitive damages.

Ibrahimova v. Cavanagh, 2026 ONCA 573

[Copeland, Monahan, and Gomery JJ.A.]

Counsel:

M.P. Sammon, M. Robins, and E. Linn, for the appellant

B. Legate, A. Wolfe, and L. Kilroy, for the respondents

facts:

On Friday, May 3, 2019, the respondent went to the emergency department of the Kincardine site of South Bruce Grey Health Centre. She was 28 years old and in the second trimester of her first pregnancy. The respondent reported vaginal bleeding, lower abdominal cramps, and a pinkish discharge. At 17 weeks, the foetus was not yet viable. After arriving at the Kincardine Hospital, the respondent had an ultrasound, urinalysis and blood tests. She was then seen by the appellant, a family physician who occasionally worked in the emergency department. The appellant testified that she reviewed the ultrasound and bloodwork results, conducted an abdominal and speculum exam of the respondent, and consulted with an obstetrician over the telephone. She diagnosed the respondent with a threatened miscarriage and advised her to follow up with her obstetrical care provider. She told her to return if she had increased bleeding or pain or was otherwise concerned.

Roughly 12 hours later, the respondent returned to the Kincardine Hospital emergency department. She reported to the nursing staff that she “woke up and had additional bleeding with large amount of clear fluid (enough to fill a pad)”. The respondent was seen by the appellant within an hour of her arrival. The appellant testified that the respondent’s vital signs were normal. She recorded that the respondent had a “[g]ush of fluid” at approximately 6:00 a.m. that morning, with a small amount of blood, and that the respondent showed her a pad with “straw coloured fluid”. The appellant thought that this was likely amniotic fluid. She advised the respondent that she could be having a miscarriage. In the appellant’s opinion, the change in the respondent’s presentation “was an evolution of her diagnosis that a threatened abortion was more likely and that it was likely to progress to a miscarriage.” The respondent did not report any headaches, fever or chills, changes in how she was generally feeling, abdominal pain, or respiratory symptoms. In these circumstances, the appellant testified that she saw no need to obtain a white blood cell count, order an ultrasound, consult an obstetrician or refer the respondent to an obstetrician on an urgent basis. The appellant discharged the respondent with a final diagnosis of “threatened abortion”. She advised her to “watch and wait”; to follow-up with her obstetrical care provider in the coming week; and to return if she had cramping, increased bleeding, or was otherwise concerned. The respondent was again sent home.

On the afternoon of May 5, 2019, the respondent went to the emergency department of the Alexandra Marine & General Hospital. Nursing staff recorded that the respondent was experiencing abdominal discomfort and spotting, and that she had filled one pad with blood and yellow discharge the day before. The respondent also reported a low-grade fever but appeared well in triage. Her heart rate was 100 beats per minute, which meets the definition of tachycardia. The respondent was seen by Dr. K, one of the defendants, a family physician who was completing training in emergency medicine. He testified that he asked the respondent about her fever but that she “didn’t endorse an actual fever to me”. He did a vaginal swab, a sterile speculum exam, and a digital examination. The respondent did not have any obvious uterine tenderness, a fever, or infectious looking discharge. During his testimony, Dr. K acknowledged that a urinalysis revealed that there were white blood cells in the respondent’s urine. While this could have been a sign of a urinary tract infection, in his view it was not definitive. Dr. K had originally ordered a complete blood count but then cancelled it, concluding that it was unnecessary because the respondent did not seem to have an active infection. Dr. K diagnosed the respondent with second trimester bleeding, advised her to return if she had “fever/chills/concerns”, requested an outpatient ultrasound to reassess the pregnancy, and made a semi-urgent referral to an obstetrician. The respondent was again sent home.

On the afternoon of May 6, 2019, the respondent went to the Walkerton site of the South Bruce Grey Health Centre. She complained of increased vaginal bleeding over the past four days and abdominal cramping. Her vital signs appeared normal. The respondent was seen by Dr. P, another defendant at 5:25 p.m. He noted that she had vaginal bleeding from May 3 to 6, with some pain on May 3. He testified that he did a fundal assessment and a point of care ultrasound. There was no indication of pain or tenderness from these assessments. He diagnosed her with a second trimester bleed and discharged her with instructions to return the following morning for an ultrasound and further assessment in the emergency department. The respondent was discharged home at 5:59 p.m.

The respondent’s husband called an ambulance at 2:08 a.m. on May 7, 2019, about eight hours after her discharge from the Walkerton emergency department. The ambulance took the respondent to the Kincardine Hospital. The paramedic incident history recorded that “[o]ver the past day [the respondent] has developed a high fever along with headache, dizziness and lethargy.” She was in septic shock. The respondent arrived at the Kincardine hospital at 2:34 a.m. Efforts were made to stabilize her and an obstetrician was consulted. The respondent was then airlifted to the London Hospital for a discharge and evacuation (“D&E”) procedure, arriving at 7:35 a.m. A D&E was performed at 9:30 a.m. at her bedside. Dilation was not required for the procedure as the foetus was already halfway through the vagina. The respondent sustained catastrophic injuries as a result of the sepsis. She had a partial amputation of her right foot, the amputation of her left leg below the knee, kidney failure, and a stroke. Her ability to use her right arm is compromised and she has seizures. The respondent was hospitalized from May 7, 2019, to March 9, 2020. She was on home dialysis for over 17 months until she had a kidney transplant in July 2021. The trial judge found that “[the respondent] has very significant limitations … and that her prognosis is dire.”

The trial judge concluded that the appellant breached the standard of care of an emergency room physician on May 4 and that this breach caused the respondent’s damages. He found that Drs. K and P were negligent in their care of the respondent on May 5 and 6, but dismissed the action against them on the basis that she would have developed a severe infection and sepsis absent their negligence.

In these circumstances, the decision-making around care for a mother and foetus was extremely complex and the standard of care required the appellant to consult with an obstetrician immediately. Drs. K and P should have done likewise when they saw the respondent over the next two days.

The trial judge found that, had the appellant consulted an obstetrician before the respondent left the Kincardine Hospital on May 4, the respondent would have been either referred to the London Hospital directly or immediately after consulting an obstetrician in Owen Sound. In either case, she would have arrived at the London Hospital on the afternoon of May 4. She would have been advised by the obstetrical team there that her membranes had ruptured; that she had lost amniotic fluid; that she was highly likely to lose the baby; that if the baby did survive, it would likely have severe disabilities; and that she was at risk for an infection that could become severe or even septic.

Further, the trial judge found that, but for the appellant’s negligence on May 4, the London Hospital would have scheduled a D&E procedure in time to avert the sepsis that the respondent later developed. Had she arrived at the London Hospital on May 4 with a previable, prelabour, preterm rupture of membranes (pPPROM) diagnosis, she would have started on antibiotics that day, she would have been advised of the risks of proceeding with the pregnancy, she would have elected immediate termination, and a surgical evacuation of her uterus would have been arranged on May 5. As a result, she would not have progressed to sepsis and septic shock and would have avoided the injuries she sustained.

The appellant did not challenge the trial judge’s finding that she was negligent in failing to refer the respondent to an obstetrician on an urgent basis on May 4. She instead argued that the trial judge erred in concluding that her negligence caused the respondent’s damages.

issues:

1. Did the trial judge make findings of fact relevant to causation absent evidence that could ground them?

2. Did the trial judge invent a new standard of obstetrical care?

3. Did the trial judge misapply the law of adverse inference?

4. Did the trial judge’s approach to causation reverse the onus of proof?

holding:

Appeal dismissed.

reasoning:

1. No.

The trial judge used the analytical framework for analyzing causation in a delayed diagnosis case endorsed by the Court in Sacks v. Ross, and reaffirmed in Hasan v. Trillium Health Centre (Mississauga). He first determined what had happened from May 3 to May 7, then determined what would have happened had the appellant met the standard of care. In doing so, he relied on the characterization of the respondents’ burden of proof with respect to causation found in Goodman v. Viljoen which, at para. 76 states that “[t]he approach acknowledges that the causation inquiry is essentially a practical one based on the entirety of the evidence and made with a view to determining whether the [respondent] has established causation on the balance of probabilities and not to a scientific certainty.”

The trial judge acknowledged the Court’s admonition against speculating or resorting to common sense to determine issues that require expert knowledge. The trial judge did not fall into this error in making the determinations impugned by the appellant. He made the findings based on his assessment and weighing of the expert and ordinary evidence. Such findings, which involved the assessment of a large body of complex evidence, were entitled to appellate deference absent an error of law or principle or a palpable and overriding error of fact: Benhaim v. St-Germain; Gumbley v. Vasiliou; Hacopian-Armen Estate v. Mahmoud. The trial judge also considered what a reasonable person would have done in the appellant’s circumstances, as directed in Arndt v. Smith. Moreover, the trial judge assessed how promptly a hospital would have acted if properly made aware of the respondent’s condition given the principle in Ediger v. Johnston, that the standard of care must be responsive to the risks in question and the potential harm arising from it. Even if he had erred in relying on this inference, however, this would not constitute a palpable and overriding error given his other findings on causation. There was no principled reason why the trial judge should not make a finding about when that treatment would have occurred, absent the appellant’s negligence, based on indirect evidence.

Ultimately, the findings made by the trial judge were not speculative given the evidence.

2. No.

The appellant claimed that the trial judge inappropriately found that the obstetricians treating the respondent would have intervened with antibiotics and a D&E because infection was on a differential diagnosis. However, to the contrary, an obstetrician testified that if there were any evidence of infection, antibiotics would be administered and there would be no option but to terminate the pregnancy, removing the possible source of infection. There was no evidence from another obstetrician to contradict this evidence, which the trial judge accepted.

3. No.

The appellant contended that the trial judge mischaracterized the adverse inference that the defence asked him to make. The defence sought an inference based on the respondents’ failure to ask the expert obstetrician at trial whether he believed that the respondent had chorioamnionitis on May 5, and to ask him how quickly a D&E would have been performed at the London Hospital had she been admitted that day. The Court did not agree that the trial judge misunderstood the defence position or that he failed to address it. The trial judge instead considered whether an adverse inference could be drawn solely from the respondents’ failure to call other witnesses from the London Hospital.

The trial judge did not need to explain why he did not draw an adverse inference based on the respondents’ failure to ask the witness for his opinion about whether the respondent had chorioamnionitis on May 5. First, the doctor was an obstetrical expert, not an expert on infectious diseases. Second, there was no reason to put this question to the doctor in his examination in chief; his opinion on this issue would have been relevant only to the defence’s theory on causation. Third, and most important, the trial judge concluded that the question of when precisely the respondent met the criteria for a diagnosis of intrauterine infection was a red herring. The trial judge also noted that there was evidence that a D&E would have been performed on May 5, even though the doctor had not been asked this question directly.

The Court deferred to the trial judge’s decision on this issue absent any error of law or principle or any palpable and overriding error of fact. As a result, this ground of appeal did not succeed.

4. No.

The appellant’s submission on this point hinge on the trial judge’s consideration of whether an adverse inference should be drawn from the respondents’ failure to call evidence from the London Hospital, aside from the aforementioned expert evidence.

The trial judge found there was evidence on which he could make determinations relevant to causation absent further evidence and that the defence failed to adduce any evidence to counter the respondents’ evidence about what would have occurred at the London Hospital had the respondent been transferred there on May 4.

He expressed the view that a witness from the London Hospital “would not be favourably disposed to the [respondents] or under their control.” This constituted a plausible explanation for why the respondents had not called such witnesses and was a sufficient basis for the trial judge to decline to draw an inference based on the respondents’ failure to call such witnesses. The trial judge went on to observe that defence counsel “certainly have ready access to [the London Hospital] physicians and information as to its practices and procedures”. He stated: “If there existed a knockout blow to the [respondents’] case in the form of direct evidence from [the London Hospital] that the D&E could not have been performed on May 5, I expect they would have delivered the blow and not sat back to rely on argument as to what inferences should be drawn.”

Bradley v. Wang, 2026 ONCA 570

[Huscroft, Dawe, and Wilson JJ.A]

Counsel:

K. Kalogiros, A. Schechner and R. Krishnan, for the appellant

J.J. Adair, E. Vaillancourt, W. WhiteKnight and C. Dorey, for the respondent

facts:

The respondent brought an action against the appellant, a first-year family medicine resident, alleging that he administered her a vaccine in a negligent manner.

The appellant administered a tetanus vaccine to the respondent. The respondent observed that the needle was not injected in the right place. In the days, weeks and months following the injection, respondent experienced debilitating pain in and around the injection site. After a week following the injection, she stopped going to work in her job as an emergency department nurse entirely and had since never returned to any sort of employment. Specialists who assessed the respondent confirmed that she developed a “frozen shoulder”, also known as adhesive capsulitis.

The trial judge found that the appellant was negligent and that his negligence caused the respondent’s damages, including loss of income and pension loss. The appellant appealed the trial judge’s decision.

issues:

1. Did the trial judge err in her analysis of the standard of care by failing to apply the correct analytical framework when assessing the credibility and reliability of the parties’ evidence?

2. Did the trial judge err in her analysis of causation by failing to apply the “but for” test?

3. Did the trial judge err in her assessment of damages by failing to address mitigation?

holding:

Appeal dismissed.

reasoning:

1. No.

The Court found no error in the trial judge’s analysis of the standard of care and that her decision to believe the appellant’s evidence was owed deference.

The appellant argued that the trial judge erred in assessing the credibility and reliability of the parties’ evidence by failing to effectively analyze the appellant’s evidence and failing to address material inconsistencies in the respondent’s testimony. The Court emphasized that a trial judge’s reasons must be read functionally and as a whole, in light of the evidence and submissions, and with an understanding that it may be difficult to articulate why a particular witness was believed or disbelieved. Further, a trial judge has no obligation to refer to every piece of evidence, address every argument a party makes, or resolve every alleged inconsistency in a witness’ testimony. A trial judge’s decision to believe or disbelieve all or any part of a witness’s testimony will be owed significant deference if they engage in a reasoned assessment of a witness’s testimony and address the key challenges to credibility and reliability raised before them (Housen v. Nikolaisen).

Credibility was a significant issue at trial, and the standard of care issue depended entirely on whether the respondent’s evidence as to the location of injection was accepted. The Court found that the trial judge carefully considered the appellant’s challenges to the respondent’s testimony before rejecting them and reasonably accepted the respondent’s direct eye-witness evidence over the appellant’s evidence of his usual practice. There was no basis for the Court to interfere with the trial judge’s decision to believe the respondent.

2. No.

The trial judge made no reviewable error in her analysis of the “but for” test for causation and in concluding that but for the improper administration of the vaccine, the respondent likely would not have suffered the injury that she did. The appellant argued that the respondent did not lead any evidence of what would have happened in the “but for” world, and as such, the trial judge improperly relied on commonsense inferences and reasoned backwards from the mere fact of injury. The Court disagreed, finding that the trial judge properly relied on the evidence presented by the respondent’s expert showing that it would be extremely unlikely for a patient to have experienced such symptoms following a properly administered vaccination, as well as the respondent’s evidence that she had received past tetanus vaccinations without incident. This constituted as proper “but for” evidence.

3. No.

The trial judge’s findings on the issue of mitigation were owed deference and were sufficient to dispose of the appellant’s argument that the respondent failed to mitigate her damages.

The appellant submitted that the trial judge erred in assessing damages by failing to address the issue of mitigation, particularly because the trial judge made no finding that the respondent made any efforts to return to work and did not use the word “mitigation” in her reasons. The Court found that while it would have been preferable for the trial judge to use the word “mitigation” in her reasons, her reasons nonetheless addressed the issue. The appellant had the burden of proving the absence of mitigation and was required to prove both that the respondent failed to make reasonable efforts to mitigate and that mitigation was possible. Although the trial judge did not find that the respondent made reasonable efforts to mitigate her losses, she addressed the fact that mitigation was not possible by relying on the evidence before her from the respondent and the expert witness. Further, the appellant failed to meet his burden of proving that there were suitable jobs for the respondent in the area where she resided and therefore that mitigation was possible.

Canadian Union of Postal Workers v. Quebecor Media Inc., 2026 ONCA 562

[Paciocco, Thornburn, and George JJ.A.]

Counsel:

J. Barrow and K.M. Pagé, for the appellant

T. Manson and B. Brammall, for the respondents, Québecor Media Inc., Sun Media Corporation, TVA Group Inc., and J.A.

R.P. Steep, C.L. Lonsdale and L. Weaver, for the respondent, A.B.

facts:

The appellant, Canadian Union of Postal Workers (“CUPW”), brought an action against the respondents for defamation arising from statements made in a broadcast and published article in July 2014 relating to the appellant’s participation in a “Protest in Solidarity with Gaza” demonstration.

On July 22, 2014, two CUPW representatives attended the demonstration, which was intended to raise awareness for, and stand in solidarity with, Palestinians. On July 23, 2014, the Ottawa Citizen newspaper published an article with a photograph showing the CUPW flag flying near a demonstrator who was holding a flag associated with Hamas, a designated terrorist organization by the Canadian government, at the demonstration. Neither of CUPW’s representatives recalled seeing or interacting with the demonstrator who carried the Hamas flag.

One of the respondents, J.A., was an intermittent host of the broadcast “The Source” on Sun News Network and a freelance columnist for the Toronto Sun newspaper. The respondent, Québecor Media Inc., was the parent company of Sun Media Corporation (“Sun Media”) and Group TVA Inc (“TVA”), which together operated Sun News Network as joint partners.

Following CUPW’s participation in the demonstration on July 23, 2014, the editorial staff of “The Source” asked CUPW directly “if they support terrorism”. A Sun News producer requested an interview with CUPW to discuss its participation in the demonstration and the “union’s support for the terrorist organization Hamas”, which was declined by CUPW’s communications specialist, A.A. Later that afternoon, A.A. sent a follow-up email to Sun News with links to CUPW’s “Peace and Disarmament Policy” and their policy on Palestine. The email did not address whether CUPW did or did not support Hamas.

On July 23, 2014, J.A. hosted “The Source” with respondent A.B. as his guest. J.A. began the program asking why CUPW was “…marching with Hamas supporters”. A.B. stated during this program that it was “shocking and bewildering” that CUPW would support a designated terrorist organization. When J.A. asked A.B. about CUPW’s history of activism, A.B. stated that CUPW had a “…history of partnering up with hate groups, anti-Israel groups…” and indicated that CUPW had partnered with Hamas.

On July 28, 2014, J.A. published a column in the Toronto Sun newspaper entitled “Hamas goes postal? Only in Canada”, which referred to the demonstration as a “pro-Palestinian rally” which, according to J.A., “demonstrated more than just support for the average Palestinian mother and child”. The column began by stating “Would you want a terrorist sympathizer coming to your door every day? Apparently, that may already be happening.”

In the defamation action, the trial judge found that J.A. and A.B.’s statements and inferences were defamatory because they would tend to lower the appellant’s reputation in the eyes of a reasonable person, as the remarks associated CUPW with terrorism, with Hamas, and alleged that CUPW was partnered with hate groups. The trial judge held that the defence of justification or truth did not apply because the remarks were substantially untrue. However, the trial judge found that the respondents were entitled to rely on the defence of fair comment and that some of their communications were protected by the defence of responsible communication and statutory privilege under s.3(2) of the Libel and Slander Act, R.S.O. 1990, c. L.12. He therefore dismissed the action. Canada Post appealed.

issues:

1. Did the trial judge err in concluding that the defence of fair comment applied to the remarks made by the respondents and in his application of the fair comment test?

2. Did the trial judge err in finding that the remarks were not made with malice?

3. Did the trial judge err by finding that the defamatory statements were protected by the defence of responsible communication or by statutory privilege?

4. Were the trial judge’s reasons informed by improper “hindsight bias”?

holding:

Appeal dismissed.

reasoning:

1. No.

The Court found no error in the trial judge’s conclusion that the defence of fair comment was available to the respondents, nor in his analysis of the applicable test for fair comment. To succeed on the defence of fair comment, the defendant bears the onus of establishing that the comments are (i) on a matter of public interest; (ii) words a reasonable person would recognize as comments or opinion based on facts; (iii) the underlying facts must be disclosed or otherwise known; and (iv) be opinions a reasonable person could honestly hold on the proven facts (WIC Radio). The parties agreed that the comments made were about a matter of public interest.

The trial judge’s finding that the statements constituted expressions of opinion, not statements of fact, was entitled to deference. The appellant alleged that the trial judge erred in applying the second part of the test by failing to review each comment and failing to assess whether the remarks were said with sufficient clarity that an objective person would recognize them as comment and not fact. The trial judge was not required to analyze each remark separately. He followed the correct process under WIC Radio by examining whether the words used may, in pith and substance, be properly construed as comment. The Court emphasized that the notion of ‘comment’ is generously interpreted, the analysis is “highly contextual” and that there is a “low threshold” for what constitutes comment. The trial judge concluded that the respondents’ remarks were statements of opinion about the facts. The Court found no error in the trial judge’s decision to assess whether the remarks were comments, not statements of fact, by assessing the pith and substance of the remarks and reviewing the underlying evidentiary context.

Regarding the third part of the test, the Court emphasized that the facts should be sufficiently stated or otherwise known so that audiences can make up their own minds on the merits of what is said, and that the comment does not need to be a reasonable or proportionate response. The Court disagreed with the appellant’s submission that the trial judge erred by failing to apply the requirement that the facts underlying the comment or opinion be disclosed or otherwise known to the audience. The Court held that the trial judge correctly recognized that the fair comment defence extends even to “farfetched or extreme” opinions, given that they are grounded in stated or otherwise known facts. The Court agreed with the trial judge’s finding that the necessary facts for the opinions expressed by the respondents were adequately demonstrated, including that CUPW’s statement did not condemn Hamas, CUPW’s Palestine policy, and other relevant facts indicating CUPW’s “very public history of activism in relation to Gaza”.

As for the fourth part of the test, the Court held that a defendant only needs to demonstrate that a person could honestly hold that opinion on the proven facts. The Court was of the view that the trial judge’s finding that the respondents genuinely and honestly believed the opinion they expressed was relevant, as it could support the conclusion that the objective person could believe the opinion expressed. The Court saw no error in the trial judge’s conclusion that a person could honestly believe that CUPW supported terrorism based on the information available to the respondents, including CUPW’s decision not to respond to the question of whether it supported Hamas.

2. No.

The Court disagreed with the appellant’s submission that the respondents’ remarks were made with malice and therefore defeated the defence of fair comment. The trial judge was correct in concluding that malice, which requires a “degree of spite or ill-will”, was not established on the evidence.

3. No.

The Court held that there was no basis to challenge the trial judge’s conclusion that the corporate respondents satisfied the essential elements of the defence of responsible communication. The defence of fair communication requires that the publication is on a matter of public interest and that the publication is responsible (Torstar at p. 683; B’nai Birth, at para. 27). The Court emphasized that the responsible communication defence only applies to statements of fact published in the public interest, and not to matters of opinion.

The Court disagreed with the appellant’s claim that the respondents failed to meet the diligence required to establish the defence of responsible communication. The Court held that the respondents sufficiently investigated the facts related to the appellant’s participation in the demonstration and gave the appellant an opportunity to provide a written statement denying that it supported terrorism or to appear on the program, which it elected not to do.

The Court did not find any error in the trial judge’s decision to apply the defence of statutory privilege to the basic facts contained in the broadcast and article. The Court deferred to the trial judge’s finding that the broadcast and article fairly and accurately reported on the demonstration, CUPW’s involvement and the Hamas flag flown near the CUPW demonstrators.

4. No.

There was no merit to the appellant’s claim of a reasonable apprehension of bias. The trial judge’s references to the fact that issues in the Middle East are longstanding and continuing could not be reasonably read as hindsight bias or as otherwise influencing his decision on the merits.

Mathur v. Ontario, 2026 ONCA 561

[Coroza, Sossin, and Gomery JJ.A.]

Counsel:

N.R. Hasan, J. Safayeni, S. Bass, F.A. Thomson, J. Croome, and R. Gomme, for the moving parties

S. Z. Green, P. Ryan, and S. Kissick, for the responding party

facts:

In 2024, the Moving Parties made a Charter application to the court arguing that sections 3 and 16 of the Cap and Trade Cancellation Act (the “CTCA”) breached their section 7 and 15 Charter rights. The application judge dismissed the application, which was then appealed. On appeal, it was concluded that the application judge erred and the Respondent was bound to produce a plan and target that were Charter compliant and the matter was remitted back to the application judge to conduct a proper determination of the ss. 7 and 15 Charter issues. A month before the scheduled rehearing, the Ontario government introduced Bill 68, An Act to implement Budget measures and to enact and amend various statutes, which received royal assent. Schedule 1 of Bill 68 repealed ss. 3-5 of the CTCA, making the Moving Parties’ application moot. The Moving Parties brought a motion to reopen the appeal on the basis that Ontario passed Bill 68 to evade constitutional scrutiny, to defeat the rehearing ordered by the court before it begins, and to prevent them from seeking a remedy.

issues:

1. Can the Court reopen the appeal under its inherent jurisdiction because no order was taken out to dispose of it?

2. Can the Court use its power to set aside or vary its order in the prior appeal pursuant to r. 59.06 of the Rules of Civil Procedure?

holding:

Motion dismissed.

reasoning:

1. No.

Under r. 61.16(6.1) of the Rules, the Court has inherent power to reopen an appeal before a formal order is taken out and entered when it is in the interests of justice to do so. However, reopening an appeal is a “rare event” that “will occur only where ‘a very serious injustice’ will result absent reconsideration of the matter” (Geliedan v. Rawdah). The power to reopen an appeal should be exercised sparingly.

The Court decided that the interests of justice did not warrant reopening this appeal for two reasons. First, the motion to reopen was anchored in the view that the repeal of the legislation that formed the basis of the appeal decision made the remittal of the proceeding to the application judge moot. The Court believed it was premature to conclude that the issues remitted to the application judge would no longer be decided. The application judge has discretion to hear the matter notwithstanding the repeal of legislation.

Second, the Court’s decision in the appeal remitting the matter back to the application judge made clear that the record and findings on appeal and at the initial application were insufficient to allow a determination on the Charter claims raised by the Moving Parties. The Moving Parties are at liberty to clarify, reframe or expand upon the issues to be determined by the application judge in relation to their Charter claims. The record may require amplification to enable such findings to be made.

The next step is for the parties to follow the remedy and guidance set out by the Court in remitting the matter for further adjudication by the application judge.

2. No.

Since it was concluded that it is not in the interests of justice to reopen the appeal, it was not necessary to vary the order that was not formally entered and issued pursuant to r. 59.06.

Curridor v. Millstone Homes Inc., 2026 ONCA 571

[Gillese, Madsen, and Pomerance JJ.A.]

Counsel:

A. Verrilli, for the appellant

C. Bondy and I. Vacaru, for the respondent

facts:

These are not to be taken as finding of facts since the action is being remitted for a new trial. The Appellant is a residential homebuilder that develops subdivisions, and constructs and sells homes. The Respondent reached out to the Appellant with the intention of moving and it appears to be common ground that the Appellant told the Respondent he could purchase the property under the Friends and Family Deal. They agreed that when the property was eventually sold, they would split the profits from the sale on a 50/50 basis. The house construction began, and in January 2021, V.C., the owner and principal of the Appellant, went on an extended vacation, leaving two stamps that bore his signature to two people, instructing both that before the Agreement of Purchase and Sale (“APS”) was stamped with his signature, he had to be reached by phone for approval. Within this time, the Respondent signed the APS and gave a deposit cheque that was deposited. V.C.’s signature was stamped at the bottom of the APS without his knowledge, approval or authority. V.C. told the Respondent that he was unwilling to complete the sale of the property because the APS had been fraudulently executed. The Appellant also fired G.C., its General Manager based on alleged theft, fraud and other wrongdoings. The Respondent argued that the APS was valid and he was entitled to rely on it based on the indoor management rule.

The trial judge found the APS valid and enforceable because the arrangement between the parties was a Friends and Family Deal, some details were left out but all the essential terms were present. The trial judge also accepted the Respondent’s evidence that he had no idea there was an issue with the validity of V.C.’s signature. The trial judge found that V.C.’s signature was applied in his capacity as the owner and president of the company. Based on s. 19 of the Ontario Business Corporations Act (the “OBCA”), the trial judge found that the Appellant was precluded from asserting the APS was unenforceable because it could not prove that the Respondent knew or ought to have known the APS was executed fraudulently.

The trial judge made a mid-trial ruling stating that the evidence regarding G.C.’s alleged fraud, forgery and embezzlement during his employment with the Appellant (the “G.C. Evidence”) was irrelevant. At trial, the Respondent also asked for the Affidavit of M.W. (the “M.W. Affidavit”), the Appellant’s office administrator, to be excluded because the Appellant had not called M.W. as a witness. The trial judge relied on r. 53.02(2) of the Rules of Civil Procedure (the “Rules”) to exclude the M.W. Affidavit. Additionally, the trial judge stated that the parties’ agreement to share the profits when the property was sold was a “collateral agreement” between the parties and therefore was not relevant to the calculation of damages.

The trial judge also ordered that the statutory pre-judgment interest rate (the “PJI Rate”) be raised from 0.5% to 3.17%. The trial judge noted that the departure from the prescribed PJI Rate is warranted only where the court determines there are “unusual or special circumstances sufficient to justify such a departure”. She considered evidence that the Appellant had leased the property to a third party. In considering the amount made and the valuation of the property, the judge concluded that the Appellant “earned” 3.495% interest annually on the property. She also found that the Appellant unnecessarily delayed the proceeding due to the fraud allegation and not accepting the Respondent’s settlement offer. Ultimately, the trial judge determined that 3.17% was the appropriate PJI Rate based on reference to the fluctuation in PJI rates over the course of litigation.

issues:

1. Did the trial judge err in finding the APS was a binding agreement between the parties?

2. Did the trial judge err in excluding the G.C. Evidence?

3. Did the trial judge err in excluding the M.W. Affidavit?

4. Did the trial judge err in failing to consider the parties’ agreement to split the profits on the sale of the property?

5. Did the trial judge err in varying the statutory PJI Rate?

holding:

Appeal allowed.

reasoning:

1. and 4. Yes.

The Court considered Issue 1 and 4 together. In concluding that the APS was valid and enforceable, the trial judge committed two key legal errors. First, the trial judge failed to adequately address the profit-sharing term and its role in determining whether the APS was valid and enforceable. She did not state the legal principles governing collateral contracts nor did she give reasons for concluding that it was a collateral contract. Given the significance of the profit-sharing term, the trial judge had to adequately explain the legal basis for her treatment of it. The matter therefore had to be remitted for a new trial.

Second, the trial judge failed to address the primary issue the Appellant raised in this matter: was the signature on the APS the result of wrongdoing on the part of G.C.? While the trial judge found that the Respondent was “entitled to reasonably assume that the signature was genuine and that all internal protocols had been followed”, she did not address the evidence that could have supported a finding that the exception in s. 19 of the OBCA was satisfied. The Respondent knew that the Friends and Family Deal was outside the Appellant’s usual business practices and that the terms had not been settled before V.C. went on vacation. The Respondent relied on G.C. – without checking with the Appellant – to finalize the terms of the Family and Friends Deal and have the APS prepared and signed. The Respondent also knew that the APS did not reflect the profit sharing term. The indoor management rule is designed to protect third parties in their dealings with corporations. In deciding whether it applies, the court must look to the relationship, interaction, business and dealings between the parties to determine whether a person had knowledge that the company processes were not followed or a signature not genuine. The second error was compounded by the procedural errors described in Issues 2 and 3 as a result of which significant evidence going to the creation and signing of the APS was excluded.

2. Yes.

The Court found that the trial judge erred in law in excluding the G.C. Evidence for two reasons. First, the mid-trial ruling was procedurally unfair to the Appellant. The Appellant’s position was that G.C. had caused a false APS to be created and delivered to the Respondent. The Appellant maintained that G.C. had wrongly affixed a stamp of the Appellant’s signature on the APS and given false information/instructions to M.W. for the preparation of the APS. By excluding the G.C. Evidence, the Appellant was unfairly deprived of its right to prove that the APS had been fraudulently created and/or signed. Second, the trial judge erred in finding the G.C. Evidence was “irrelevant” and “purely vexatious”. The evidence was relevant to the determination of the validity of the APS and for whether the Respondent could rely on the indoor management rule.

3. Yes.

Paragraph 4 of the Consent Order, which turned the application into an action, stipulated that the affidavits found in the Application Record, the Respondent’s Application Record, the Supplementary Application Record, and the Respondent’s Supplementary Application Record were to form part of the evidentiary record at trial. The M.W. Affidavit was one of the affidavits that was governed by paragraph 4, meaning the M.W. Affidavit was to form part of the evidence at trial. The Appellant was not given notice that the Respondent intended to ask that the M.W. Affidavit be excluded. Nor had the Respondent’s counsel objected to the admissibility of the M.W. Affidavit. In fact, the M.W. Affidavit had been admitted into evidence at trial before the Appellant made its case and before the trial judge ruled that it was excluded. The trial judge had therefore erred in numerous ways. First, the Appellant was entitled to rely on the M.W. Affidavit when it presented its case because that affidavit had already been admitted into evidence. Second, the exclusion of the M.W. Affidavit was unfair because it was relevant to the Appellant’s contention that G.C. had acted fraudulently in the creation of the APS. Third, it was not clear that r. 53.02(2) of the Rules was available to the trial judge. That rule empowers a trial judge to vary a pre-trial order where it appears “necessary to do so in the interest of justice”. However, the pre-trial order governing the affidavit evidence had been acted on by the parties – and the evidence admitted by the trial judge – before she purported to exercise her discretion under r. 53.02(2).. The provision is prospective in operation and not to be read as empowering a trial judge to reverse a pre-trial order already in effect. In any event, assuming the trial judge was empowered to act upon r. 53.02(2), the interests of justice dictated that the M.W. Affidavit be allowed to remain in evidence at trial. There was no basis on which the trial judge could draw the adverse inference that because M.W. had not been called as a witness, M.W. had prepared the APS on the Appellant’s behalf.

5. Yes.

The trial judge committed three legal errors in exercising her discretion to increase the statutory PJI rate pursuant to ss. 130(1) and (2) of the Courts of Justice Act (the “CJA”).

The first legal error arose from her use of the trial evidence relating to the Appellant’s receipt of lease income on the property. The trial judge’s finding that the Appellant “earned” an annual interest rate of 3.495% on the property and that interest rate was the best evidence of a “change in the market interest rate” was not correct. The amount the Appellant received as lease income was not the amount the Appellant earned from the property. The maintenance costs had to be deducted. That evidence was not before the trial judge because the Appellant had no notice that the Respondent would advance a claim for an increase in the PJI Rate based on its receipt of lease income. The absence of timely notice raised concerns about procedural fairness. Even if the rate of interest had been correctly calculated, in the Court’s view, that information did not fall within the meaning of “changes in market interests” because the language is referring to general market conditions, not idiosyncratic information based on the lease income on a single property.

The second error arose in finding that the Appellant’s conduct unnecessarily lengthened the duration of the proceedings because the Appellant “made allegations of fraud but failed to prove them at trial”, and the Appellant refused the respondent’s settlement offer. The trial judge’s finding that the Appellant had failed to prove their fraud allegations had to be considered in light of her rulings that precluded the Appellant from leading evidence that bore directly on whether the APS had been fraudulently created. The trial judge also erred in finding that the Appellant unnecessarily delayed the trial because it did not accept the Respondent’s settlement offers. The consequences of failing to accept a settlement offer are governed by r. 49.10 of the Rules and relate to cost orders. It is not a matter for consideration when determining whether the prescribed PJI rate should be altered.

Third, the trial judge’s reason for exercising her discretion was based on fluctuations in the statutorily prescribed PJI rates in the relevant period. However, Aubin v Synagogue and Jewish Community Centre of Ottawa (Soloway Jewish Community Centre) confirms that such an approach is a legal error.

Buffa v. Giacomelli, 2026 ONCA 566

[Zarnett, Monahan, and Rahman JJ.A.]

Counsel:

D.N. Delagran and G. Madill, for the appellant

D.L.Y. So and M. Debono, for the respondent

facts:

The appellant, A.B., brought an application seeking to set aside transfers of over $1,700,000 made by his mother, G.B., to his sister, the respondent L.G., on the basis that the transfers were the product of the respondent’s undue influence, and in any event, that the transfers were gratuitous and created a resulting trust in favour of G.B. or her estate.

On November 8, 2018, G.B. made a will and executed a Power of Attorney for Property on the same day appointing her husband as attorney, and the respondent as alternate attorney. G.B.’s husband died in 2019. Shortly after the husband’s death, the appellant attempted to challenge G.B.’s capacity and her or the respondent acting as estate trustee for the husband’s estate, however, the challenge was rejected by G.B. in a letter from her lawyer who asserted her capacity. G.B. and the appellant did not see or speak to each other after that point, while she and the respondent remained close until G.B.’s death.

In January 2020, G.B. directed her banks to transfer her investment account funds into new joint bank accounts jointly held by her and the respondent. In March 2020, G.B. directed that the respondent was to be the beneficiary of her RRIF and TFSA accounts. Then, in May 2020, G.B. signed two gift letters directing the respondent to liquidate her investment accounts and to sell her condominium, deposit the proceeds into the respective joint accounts, and that the respondent would be gifted the proceeds. The respondent did so and subsequently withdrew funds from the joint bank accounts. G.B. started to show signs of dementia in the fall of 2021 and ultimately passed away on October 17, 2023.

Under the will, G.B.’s estate was to be divided 45% to the appellant and 55% to the respondent. However, due to the transactions that occurred, the will did not govern over $1,700,000 in assets that were transferred before G.B.’s death into G.B. and the respondent’s joint accounts, which had been either withdrawn by or otherwise passed to the respondent outside of the estate.

The application judge dismissed the appellant’s application, finding that the transfers were valid inter vivos gifts. He rejected the appellant’s assertion that the respondent had unduly influenced their mother and found that the respondent established that G.B. intended the transfers to be gifts, thereby rebutting the presumption that the respondent held the transferred funds on resulting trust. The appellant appealed.

issues:

1. Did the application judge err in his approach to undue influence?

2. Did the application judge err in finding that the presumption of resulting trust was rebutted by considering G.B.’s relationships with the parties and thus conflating evidence of motive with evidence of intent to make a gift?

3. Did the application judge fail by failing to focus on whether donative intent existed at the time of the transfers?

holding:

Appeal dismissed.

reasoning:

1. No.

The application judge did not err in his analysis of undue influence. The onus of proving undue influence rests on the party who asserts it, but a presumption of undue influence arises where an inter vivos transfer is made within a relationship involving an inherent “potential for domination”. If a presumption is found to exist, the recipient of the gift must establish that the transfer was made with the donor’s “full, free and informed thought”, on a balance of probabilities (Goodman Estate).

The appellant argued that the application judge misapplied the test for the presumption of undue influence and did not make a finding about whether there was a potential for domination in the relationship between G.B. and the respondent. The application judge’s findings that the respondent was not in a position to dominate G.B.’s will, G.B. acted freely and voluntarily, and there was no undue influence in fact sufficiently rebutted any presumption of undue influence.

The application judge’s findings of fact, inferences of fact and mixed findings of fact and law not tainted by legal error were entitled to substantial deference on appeal. In essence, the appellant’s assertion was not one of legal error, but a complaint about the application judge’s fact finding. Further, the Court held that even where a trial judge fails to apply the proper presumption, there is no basis for appellate interference if the presumption would have been rebutted on the trial judge’s findings of fact, leading to the same conclusion.

2. No.

The Court held that the application judge correctly concluded that the presumption of resulting trust had been rebutted.

To rebut the presumption of resulting trust, the onus is on the recipient of the transfer to prove, on a balance of probabilities, that the transferor intended the transfer to be a gift (Pecore v. Pecore). The evidence required to rebut the presumption depends on the facts of the case, and where the donor is deceased, section 13 of the Evidence Act requires corroborative evidence.

The appellant argued that the application judge erroneously conflated evidence of motive for making the transfers with evidence of intention for making a gift by relying on G.B.’s strained relationship with the appellant and close relationship with the respondent. The Court rejected this argument. The application judge was entitled to consider evidence relating to the quality of the relationships that G.B. had with her children as one of the facts supporting his conclusion that the transfers to the respondent were intended as gifts and that he did not conflate motive with intention.

Further, the Court held that the Evidence Act does not require each bit of evidence to be separately corroborated. Rather, it requires the factual contention on which the respondent could obtain judgment to be corroborated on the respondent’s own evidence. The evidence in this case went well beyond the respondent’s evidence, including the letters, beneficiary designations and the creation of joint bank accounts, all of which corroborated the factual contention that G.B. intended to make a gift to the respondent.

3. No.

The application judge did not err in determining the relevant timing of donative intent.

Regarding the proceeds of sale of the condominium, the appellant argued that G.B.’s donative intent should have been assessed at the date the respondent withdrew the funds for her own use from the joint bank account. He further argued the application judge erred by solely focussing on G.B.’s intent when the bank accounts were created, and when the letter relating to the sale of the condominium and the deposit and gift of the proceeds was signed, because this was the period in which G.B.’s capacity was in question between September 2021 to May 2022.

The Court rejected this argument as the relevant time for determining donative intent is at delivery, when the donor divests themselves of all power and control over the property and transfers it to the donee (Pecore). Here, delivery of the gifted property occurred in May 2021 when the proceeds of the condominium sale were deposited into the joint account and the respondent had the right to withdraw those funds. The application judge found as a fact that G.B. first showed signs of dementia in fall of 2021, which was owed deference on appeal, and G.B.’s capacity to make the gift was presumed absent suspicious circumstances, which the application judge did not find. A donor’s intention to make a gift must continue to the time of delivery, but given that there was no change in capacity, nothing prevented an inference being drawn that the clear statement of intention to make a gift in May 2020 continued through the time of delivery. Further, there is no requirement that intention be expressly repeated, and in this case, there was no suggestion that G.B.’s intention had changed.

Stacey v. Vey, 2026 ONCA 564

[Paciocco, Thorburn, and George JJ.A]

Counsel:

W. C. V., acting in person

S.-A. S, acting in person

facts:

The appellant and the respondent were in a common law relationship, had no children together, and did not enter into a cohabitation agreement. In 2015, the respondent moved into the appellant’s home. Two years later, the appellant sold the property, and the parties purchased the Treetops property using the proceeds of sale. They entered into a written agreement providing that they would hold the Treetops property as tenants in common, with ownership divided 90/10, in favour of the appellant. In 2018, the parties discussed changing the ownership to a 59/41 division in favour of the appellant, but no change to the 90/10 agreement was ever formalized. The Treetops property was sold in 2019, and the central issue at trial was the division of the remaining proceeds of sale. The trial judge held that the appellant was unjustly enriched at the respondent’s expense, found that there was a joint family venture, and held that the respondent was entitled to 41% of the proceeds of sale.

issues:

1. Did the trial judge err in holding that the appellant was unjustly enriched?

2. Did the trial judge err in holding that there was a joint family venture?

3. Did the trial judge err in granting the respondent proceeds from the sale of the Treetops property?

holding:

Appeal allowed.

reasoning:

1. Yes.

The trial judge erred in finding that the appellant was unjustly enriched and that respondent experienced a corresponding deprivation. To establish unjust enrichment, the plaintiff must establish (i) that the defendant gained a benefit or was enriched, (ii) the plaintiff was correspondingly deprived, and (iii) there is no juristic reason for the defendant’s enrichment: Moore v. Sweet. To establish an enrichment and corresponding deprivation, the moving party must show that they gave something to the defendant that the defendant kept. The benefit need not be permanent, but it must have enriched the defendant: Kerr, at para. 38. Even if there are enrichment and corresponding deprivation, that enrichment will not be unjust if there is a juristic reason for it. There will be no juristic reason if the parties are in a joint family venture in which both parties have contributed to their overall accumulation of wealth, and the defendant retains a disproportionate share of the jointly earned assets after the relationship ends: Kerr.

The claim for unjust enrichment was in respect of the sale of the Treetops property. The Treetops property was purchased for $901,000 using the appellants proceeds of sale from a previous property and sold for $752,000. Accordingly, the appellant was not enriched by the sale. The main contribution to the property from the respondent was sharing liability for the mortgage and some property improvements. The respondent was compensated for these contributions by receiving a 10% interest in the property.

2. Yes.

Where wealth is generated through a joint family venture, calculation of the monetary award should be done according to the claimant’s proportionate share of the contributions. Joint venture claims are defined in Kerr as the product of economic integration, mutual effort, actual intention, and priority of the family. There must be mutual, cooperative economic integration.

The appellant and respondent had a short, unstable, unmarried relationship. There was no prioritization of the overall welfare of the family unit, extensive economic interdependence, or integration of finances to evidence planning for their joint economic well-being. While there were some joint accounts, there was significant financial independence, separation of income, no creation of a common pool of savings and no evidence of future planning or any joint interest save for the Treetops property.

3. Yes.

Where wealth is generated through a joint family venture, calculation of the monetary award should be done according to the claimant’s proportionate share of the contributions (Kerr). The monetary award can be quantified based on the monetary value of the services provided, or an a “value-survived basis”, according to the overall increase in the couples’ wealth during the relationship.

The respondent elected to have her damages quantified based on the value received. However, he failed to quantify the extent of the enrichment unjustly retained. The trial judge also erred in finding that the parties agreed to a 59/41 apportionment of interests in Treetops in favour of the appellant. The respondent and appellant signed an agreement to confirm that their respective financial interest in the Treetops property would be 90/10 and that both would be named on the Treetops mortgage. In 2018, they discussed a change to the agreement to reduce the appellants interest in the Treetops property to 59/41, but no new equity agreement was signed.

Sui v. Ontario (Attorney General), 2026 ONCA 560

[Thorburn J.A.]

Counsel:

H.S., acting in person

D. Westcott and T. Ahluwalia, for the respondent

facts:

The appellant was convicted of an offence under the Provincial Offences Act (“POA”). His appeal of the POA conviction was dismissed.

Later on, the appellant brought an unsuccessful motion in the Superior Court seeking leave to commence an application to compel the Ontario Court of Justice to file his Notice of Appeal. The appellant then served a Notice of Appeal of the Superior Court order to the Court of Appeal. Because no formal order was provided by the Superior Court, he was unable to perfect his appeal.

The appellant sought a motion for an extension to perfect his appeal and other related reliefs. The respondent submitted that the appellant’s proposed appeal was without merit and was barred by s. 140(4)(e) of the Courts of Justice Act (“CJA”), which deals with vexatious litigant orders.

The appellant had been declared a vexatious litigant twice. However, the two orders declaring the appellant a vexatious litigant were made before rule 2.2 under the Rules of Civil Procedure came into effect, which enables a judge to issue a vexatious litigant order against a party in an ongoing proceeding on the judge’s own initiative.

issues:

1. Should the appellant be granted an extension of time to perfect his appeal?

2. Is the proposed appeal barred by s. 140(4)(e) of the CJA, even though the two vexatious litigant orders against him were made before rule 2.2 came into effect?

holding:

Motion dismissed.

reasoning:

1. No.

The Court cited rule 3.02 for the test for an extension, which is whether the justice of the case requires that an extension be given. The relevant factors to consider include the length and reason for the delay, prejudice to the responding party, the good faith intention to appeal, and the merits of the proposed appeal. Lack of merit alone is sufficient to deny the requested extension of time.

Instead of appealing the dismissal of his POA appeal, the appellant initiated a new proceeding in the Superior Court to compel the Ontario Court of Justice to file his Notice of Appeal nunc pro tunc. The Court found no legal basis for the order the appellant sought from the Superior Court.

2. No.

The Court found that because the two vexatious litigant orders were made before rule 2.2 came into effect, they were not made pursuant to s. 140 of the CJA, nor did they follow the formal procedure allowing a judge to undertake the orders as set out in rule 2.2. Though there was some question as to whether s. 140(4)(e) applied or rendered the appellant’s proposed appeal meritless, the Court held that regardless, this appeal was vexatious on its face and should be the subject of a review process by a panel of the Court of Appeal, pursuant to rule 2.1. The Court directed the Registrar to give notice to commence the rule 2.1 review process, where the appellant would be permitted to file submissions as to why his appeal should not be dismissed.

SHORT CIVIL DECISIONS

Peninsula Employment Services Ltd. v. Castillo, 2026 ONCA 563

[Pacoccio, Sossin, and Wilson JJ.A.]

Counsel:

B. Hughes, for the appellant

H. Bruckner and R. Shah, for the respondents M. C. and Castillo HR Consulting Inc.

No one appearing for the respondents Borderworx Logistics Inc., Smart Information Technologies Ltd. and Creative Minds Children Services Inc.

Keywords: Civil Procedure, Costs, Appeals, Stay of Proceedings, Motions, Abandonment, Abuse of Process, Orders, Disclosure, Anton Piller Orders, Rules of Civil Procedure, r. 37.09(3)

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.

[View Source]

Court Of Appeal Summaries (August 3 – August 7, 2025)

Contributor

Table of Contents

CIVIL DECISIONS

Baker v. Van Dolder’s Home Team Inc., 2026 ONCA 568

SHORT CIVIL DECISIONS

Litigation, Mediation & Arbitration

Contributor

Canada