Court Of Appeal Summaries (August 11 – 15, 2025) - Trials & Appeals & Compensation

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of August 11, 2025.

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Congratulations to Blaneys' very own Roderick Winsor and Steven Kelly for the result obtained in N.S. v. Ukraine International Airlines PJSC. These actions were brought by the families of those who died in the shootdown of the UIA Flight PS752 by Iran following the American assassination of General Soleimani, a key figure in the Iranian Revolutionary Guard Corps. UIA defended its decision to fly, arguing that its decision was the same as other airlines operating in the region, was permitted by the relevant governments, and that the shoot down was not foreseeable. The Court dismissed the appeal from the detailed trial decision in favour of the plaintiffs. It concluded that Iran was a Conflict Zone and thus the risk assessment procedures in the International Civil Aviation Organization's ICAO 10084 ought to have been followed. UIA's Risk Assessment was negligent, resulting in the flight taking off notwithstanding the ongoing conflict between the US and Iran. The Court upheld the trial judge's findings on all key issues, dismissing UIA's arguments. The Court also denied leave to appeal costs, as there was no error in the trial judge's discretionary costs assessment.

In Fari Voting v. Canada (Attorney General), the appellants challenged the constitutionality of the federal electoral system under the Canada Elections Act, arguing it violated the rights to vote and equality under the Charter. The Court found that while the single-member plurality system may have its flaws, it did not infringe on the right to meaningful participation or equality, as the Charter does not guarantee proportional representation or demographic parity in Parliament. Ultimately, the appeal was dismissed, with the Court affirming that the current electoral system is constitutional and does not violate Charter rights.

In Meldazy v. Nassar, the Court upheld a jury award of over $1.5 million in damages to the respondent who was injured in a motor vehicle accident involving a TTC bus. The appellants, WM and the TTC, challenged the trial judge's refusal to put their proposed jury questions on causation and apportionment of damages to the jury, as well as the jury instructions and the handling of expert evidence on past income loss. The Court found that the jury was properly instructed and that the appellants' proposed questions were unnecessarily complex and potentially confusing. The appeal was dismissed, and the damages award was upheld.

In YG Limited Partnership and YSL Residences Inc. (Re), the Court upheld a decision reversing a proposal trustee's decision to disallow the breach of contract claim of a former executive in bankruptcy proceedings. The proposal trustee had initially disallowed the claim as an "equity claim" under the BIA and as being contingent. The Court upheld the appeal judge's decision to allow the executive's claim, finding that the claim was one for unliquidated damages for breach of an employment contract, and not tied to an ownership interest in the corporation. The trustee and the affected limited partners put forward arguments on priority, enforceability, and procedural issues – all of which were rejected by the Court.

In Ottawa Community Housing Corporation v. Sloan Valve Company, the appellant sought to appeal the striking out of an implied warranty claim and a negligence claim pursuant to r.21 of the Rules of Civil Procedure. The appeal was dismissed as the Court found that the defects in the pleadings could not be cured with leave to amend.

Wishing everyone an enjoyable weekend.

Civil Decisions

N.S. v. Ukraine International Airlines PJSC, 2025 ONCA 587

Keywords: Torts, Negligence, Standard of Review, Palpable and Overriding Error, Reverse Onus, Duty of Care, Standard of Care, Causation in Fact, Causation in Law, Proximity, Remoteness, Unlimited Liability, Discretion, Civil Aviation, Conflict Zones, Security Risk Assessments, Safety Risk Assessments, Costs, Leave to Appeal Costs, Quantum of Costs, Experts, Expert Evidence, Discretion of Trial Judge, Qualifications of Experts, Disqualification of Experts, Montreal Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, 2242 U.N.T.S. 309, Class Proceedings Act, 1992, S.O. 1992, c. 6, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Ryan v. Victoria (City), [1999] 1 S.C.R. 201, Piekut v. Canada (National Revenue), 2025 SCC 13, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, R. v. D.D., 2000 SCC 43, Clements v. Clements, 2012 SCC 32, Sacks v. Ross, 2017 ONCA 773, Rankin (Rankin's Garage & Sales) v. J.J., 2018 SCC 19, Bongard v. Bullen, 2025 ONCA 473, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, International Civil Aviation Organization Documents 10084

Ottawa Community Housing Corporation v. Sloan Valve Company, 2025 ONCA 586

Keywords: Civil Procedure, Motion to Strike, Implied Warranty, Torts, Negligence, Negligent Misrepresentation, Contracts, Pleadings, Motion to Amend, Leave to Amend, Standard of Review, Question of Law, Correctness, Rules of Civil Procedure, r. 21.01(1)(a), r. 21.01(1)(b), Sale of Goods Act, R.S.O. 1990, c. S.1, s. 15, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1)(a), Criminal Code, R.S.C., 1985, c. C-46, Arora v. Whirlpool Canada LP, 2013 ONCA 657, Jayco Inc. v. Canada (Revenue Agency), 2022 ONCA 277, Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, Paton Estate v. Ontario Lottery and Gaming Corp., 2016 ONCA 458, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Burns v. RBC Life Insurance Company, 2020 ONCA 347, Ontario v. Madan, 2023 ONCA 18, Heydary Hamilton Professional Corporation v. Hanuka, 2010 ONCA 881, McHale v. Lewis, 2018 ONCA 1048, Fernandez Leon v. Bayer Inc., 2023 ONCA 629, Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, Das v. George Weston Ltd., 2018 ONCA 1053, Grigonis v. Toronto Boardsailing Club, 2010 ONCA 651, CIT Financial Ltd. v. Sellter Industries Inc., 2005 CanLII 8191 (Ont. C.A.), Great West Van Conversions Inc. v. Langeuin, [2000] B.C.J. No. 2547, Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, Great West Van Conversions Inc. v. Langevin, 2000 BCSC 1830, Haliburton Forest & Wildlife Reserve Ltd. v. Toromont Industries Ltd. et. al., 2016 ONSC 3767, Marcinkiewicz v. General Motors of Canada Co., 2022 ONSC 2180, The Nicholls Chemical Co. of Canada v. The King (1905), 9 Ex. C.R. 272, R. v. Su, 2016 ONSC 195, 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, North v. Bayerische Motoren Werke AG, 2025 ONCA 340, Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R. 85, Design Services Ltd. v. Canada, 2008 SCC 22

Fair Voting BC v. Canada (Attorney General), 2025 ONCA 581

Keywords: Election Law, Constitutional Law, Right to Vote, Right to Equality, Policy, Purposive Interpretation, s. 3 & 15(1) of the Canadian Charter of Rights and Freedoms, ss. 2(1), 24(1), & 313 of the Canada Elections Act, S.C. 2000, c.9, Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, Canada (Attorney General) v. Working Families Coalition (Canada) Inc., 2025 SCC 5, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, Daoust v. Québec (Directeur general des élections), 2011 QCCA 1634, Figueroa v. Canada (Attorney General),2003 SCC 37, Frank v. Canada (Attorney General), 2019 SCC 1, Fraser v. Canada (Attorney General), 2020 SCC 28, Haig v. Canada, [1993] 2 S.C.R. 995, Harper v. Canada, 2004 SCC 33, Housen v. Nikolaisen, 2002 SCC 33, Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, Quebec (Attorney General) v. A., 2013 SCC 5, R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158, Sauvé v. Canada (Attorney General), [1993] 2 S.C.R. 438, Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, Amalgamated Transit Union, Local 113 v. Ontario, 2024 ONCA 407, Canada (Attorney General) v. Reform Party of Canada, 1995 ABCA 107, Jacob v. Canada (Attorney General), 2024 ONCA 648, Ontario English Catholic Teachers Association v. Ontario (Attorney General), 2024 ONCA 101, R. v. Pike, 2024 ONCA 608, R. v. Sharma, 2020 ONCA 478, Frederick Schauer & Barbara A. Spellman, "Analogy, Expertise, and Experience" (2017) 84 U. Chicago L. Rev. 249, Grégoire Webber, et al., Legislated Rights: Securing Human Rights through Legislation (Cambridge: Cambridge University Press, 2018), Hoi L. Kong, "Section 15(1): Precedent and Principles" (2023) 112 S.C.L.R. (2d) 149, at p. 161.

Meldazy v. Nassar, 2025 ONCA 590

Keywords: Personal Injury, Torts, Negligence, Liability, Duty of Care, Breach of Duty of Care, Causation, Damages, De Minimis, Expert, Expert Evidence, Voir Dire, Admissibility of Evidence, Jury Instructions, Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, Athey v. Leonati, [1996] 3 S.C.R. 458, Hicks v. Cooper (1973), 1. O.R. (2d) 221, Broadbent v. Greater Toronto Transit Authority (2008), 54 C.C.L.T. (3d) 19, M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135, 109 O.R. (3d) 351, Meady v. Greyhound Canada Transportation Corp., 2012 ONSC 657, Wood v. Grand Valley Railway Company (1914), 51 S.C.R. 283, Penvidic v. International Nickel, [1976] 1 S.C.R. 267, Marcoccia v. Ford Credit Canada Limited, 2009 ONCA 317, Snushall v. Fulsang (2005), 78 O.R. (3d) 142 (C.A.).

YG Limited Partnership and YSL Residences Inc. (RE), 2025 ONCA 591

Keywords: Bankruptcy and Insolvency, Proposal, Trustee, Creditors, Unsecured Creditors, Equity Claims, Equity Interests, Unliquidated Claims, Contingent Claims, Employment, Employment Agreements, Termination, Wrongful Dismissal, Constructive Dismissal, Breach of ContractRemoteness, Creditor Protection, , Arbitration, Res Judicata, Procedural Fairness, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, R. v. McColman, 2023 SCC 8, Canada Deposit Insurance Corp. v. Canadian Commercial Bank, [1992] 3 S.C.R. 558, Re Nelson Financial Group Ltd., 2010 ONSC 6229, Re U.S. Steel Canada Inc., 2016 ONSC 569, Re Bul River Mineral Corp., 2014 BCSC 1732, Re All Canadian Investment Corporation, 2019 BCSC 1488, 0731431 B.C. Ltd. v. Panorama Parkview Homes Ltd., 2021 BCSC 607, Avis d'intention de Cryogénique inc., 2021 QCCS 4100, aff'd 2022 QCCA 1387, Syndic de Société de vélo en libre service, 2023 QCCA 368, Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, Newfoundland and Labrador v. AbitibiBowater Inc., 2012 SCC 67, Central Capital Corp. (Re) (1996), 27 O.R. (3d) 494 (C.A.) Noble v. Principal Consultants Ltd. (Bankrupt), 2000 ABCA 133, Schnier v. Canada (Attorney General), 2016 ONCA 5, The Rosseau Group Inc. v. 252801 Ontario Inc., 2023 ONCA 814, Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, YG Limited Partnership and YSL Residences (Re), 2021 ONSC 520 Bankruptcy and Insolvency Law of Canada, loose-leaf (2025-Rel 7), 4th ed., Fridman's The Law of Contract in Canada, 7th ed.

CIVIL DECISIONS

N.S. v. Ukraine International Airlines PJSC, 2025 ONCA 587

[Lauwers, Favreau and Dawe JJ.A.]

Counsel:

C. S. Hunter and J. Son, for the appellant (Ukraine International Airlines)

J. Fiorante, J. Thornback and P. Miller for the respondent N.S.

T. Arndt and G. Adair, for the respondents O.A. et al.

V. Genova, P. Jervis, D. Worndl and P. Mann, for the respondents The Estate of B.E. et al.

Roderick S.W. Winsor and Steven Kelly, for the respondents R.D. et al.

J. D. Assaraf, for the respondents A.A. et al.

F. S. Munn and H. Mills-McEwan, for the respondents A.H.P. et al.

S. Birman and L.G. Jackson, for the respondents The Estate of S.M.A.F et al.

Facts:

On January 8, 2020, Ukraine International Airlines ("UIA") flight PS752 took off from Tehran, with 176 onboard. The ultimate destination of many of the passengers was Toronto, Canada. An air defence unit of the Iranian Revolutionary Guard Corps ("IRGC") shot down the Flight shortly after takeoff. All on board lost their lives.

Tensions between Iran and the U.S. had escalated in the region. On January 3, 2020, the U.S. assassinated General Soleimani, a key figure in the IRGC. Iran threatened to retaliate, and the U.S. threatened to strike targets in Iran if Iran did retaliate. At approximately 2:00 am Tehran Time, Iran fired 16 ballistic missiles at two Iraqi military bases housing U.S. troops. After the attacks, the Iranian military went into a state of high alert.

Family members of most victims commenced actions in the Ontario Superior Court of Justice against UIA. The parties agreed to a modified trial procedure pursuant to which the determination of UIA's liability was bifurcated from the determination of the Plaintiff's damages.

UIA, pursuant to the terms of the Montreal Convention for the Unification of Certain Rules for International Carriage by Air, (the "Montreal Convention"), was subject to a reverse onus, being required to show that it was not negligent in the operation of Flight PS752. The trial judge concluded that UIA had failed to prove, on a balance of probabilities, that it was not negligent in allowing Flight PS752 to depart from Tehran. In particular, the trial judge found that UIA failed to meet the required standard of care because Mr. Martynenko (the UIA's head of security, and the person responsible for conducting the necessary security assessment prior to Flight PS752's departure from Tehran) had failed to access and properly assess necessary and available information, which resulted in analytical failings in his risk assessment; had failed to conduct a hazard identification and safety assessment; and had failed to communicate with the Commander of PS752.

As such, UIA's liability under the Montreal Convention was unlimited and would be determined under the ordinary principles of tort law. UIA appealed.

Issues:

1) Did UIA breach the standard of care?

a. Was Tehran's Flight Information Region ("FIR") a "conflict zone" as defined by the International Civil Aviation Organization ("ICAO") Document 10084?
b. Were the security risk assessments carried out by plaintiffs' experts compliant with ICAO 10084?
c. Did the standard of care leave discretion to fly with UIA?
d. Did the trial judge err in failing to give weight to the fact that other airlines were flying at the same time?

2) Were the passengers' damages caused by UIA's breach of the standard of care?

3) Were the damages too remote?

4) Should leave to appeal costs be granted?

Holding:

Appeal dismissed.

Reasoning:

1. Did UIA breach the standard of care?

a. Yes.

Tehran FIR was a conflict zone.

The Court agreed with the trial judge's conclusion that a conflict zone does not need to be formally declared by a state or other international authority. It endorsed the view that, hours before PS752's departure, Iran had launched ballistic missiles toward U.S. forces in Iraq, was anticipating retaliatory strikes, and was in a heightened state of military alert. The Court held that Tehran FIR was a "textbook example" of a conflict zone on January 8, 2020.

The Court also upheld the trial judge's rejection of UIA's claim that ICAO 10084 applied only to flights at high altitude, noting that its purpose and language ("over or near") extend to takeoffs and landings. The Court affirmed that the trial judge did not err in making these findings.

b. Yes.

The Court upheld the trial judge's finding that security risk assessments carried out by the Plaintiff's experts complied with ICAO 10084. UIA had conceded at trial that both were qualified experts and could not resile from that position on appeal. The Court reaffirmed that expert qualification is within the trial judge's discretion and is entitled to deference.

c. Yes.

The Court found that it was not unreasonable for the trial judge that a commercial airline would not have been allowed to take off had a proper risk assessment been carried out by UIA pursuant to ICAO 10084.

The Court agreed with the trial judge that Mr. Martynenko's omissions and flawed assumptions rendered the assessment negligent and below the standard of care. The Court highlighted that Mr. Martynenko's risk assessment omitted key conflict-zone risk factors, ignored U.S. FAA NOTAM and Osprey warnings (a global security assessment firm) to defer flights, and failed to communicate with the flight Commander or UIA's Operational Control Centre. This was contrary to ICAO 10084 and UIA's own protocols. A proper evaluation would not have allowed the flight to depart without delay or mitigation. As such, the Court found no error in the trial judge's assessment.

d. No.

The Court held that the trial judge did not err in refusing to give weight to the fact that other aircraft had departed prior to Flight PS752 as the departures of other airlines did not demonstrate that it was safe to proceed. The Court noted that Mr. Martynenko assumed, without evidence or consultation, that the other airlines had conducted proper ICAO-compliant risk assessments. Additionally, Canada's Forensic Team's investigation into the downing of Flight PS752 found that Iran had put anti-aircraft systems on high alert and that all departing flights were at significant risk. Without proof that these airlines met the standard of care, their operations did not support UIA's argument that it had met this standard.

2. Yes.

The Court found that the passengers' damages were caused by UIA's breach of the standard of care. The Court found no error in the trial judge's causation analysis and upheld the application of the "but for" test applied in Clements v. Clements, 2012 SCC 32.

In considering the causal relationship, the trial judge accepted the evidence of the Plaintiffs' expert John Edwards' analysis of the application of five risk factors noted in ICAO 10084. and that the only reasonable conclusion would have been to delay the flight, as no mitigation could have reduced the threat to an acceptable level.

The Court agreed that, absent these breaches, PS752 would not have taken off, and the harm would have been avoided.

3. No.

The Court upheld the trial judge's finding that the risk of a missile strike was reasonably foreseeable. Warnings from passengers, Osprey and the FAA highlighted this risk. The trial judge emphasized that several other incidents showed that commercial aircraft near conflict zones could be misidentified and attacked. The Court found no palpable or overriding error in the trial judge's conclusion that the harm was not too remote.

4. No.
The Court of Appeal found no error in the trial judge's costs assessment. In applying the principle from Bongard v. Bullen, 2025 ONCA 473, such awards are only set aside if based on an error in principle or are plainly wrong. The Court saw no reason to interfere with the trial judge's discretionary assessment, since there was no duplication or inefficiency warranting interference.

Ottawa Community Housing Corporation v. Sloan Valve Company, 2025 ONCA 586

[Gillese, Roberts and Coroza JJ.A.]

Counsel:

J.Y. Obagi and E.A. Quigley, for the appellant

J. Holloway, for the respondents

Facts:

The appellant, Ottawa Community Housing Corporation ("OCHC") is a affordable housing corporation that had retrofitted residential unit toilets in its buildings to increase sustainability and reduce water costs. OCHC sued Sloan Valve Company ("Sloan"), the manufacturer of the new flushing system, and Wolseley Canada Inc. ("Wolseley"), the seller of the system, over excess water costs arising from the failure of the flushing systems installed by Sloan. Sloan and Wolseley brought a motion under r. 21 of the Rules of Civil Procedure to strike part of OCHC's claim against them. The motion judge struck the claim against Sloan for breach of implied warranty under the Sale of Goods Act (the "SGA") without leave to amend and struck OCHC's claim in negligence against both respondents with leave to amend to incorporate certain allegations into the negligent misrepresentation claim. The motion judge also answered two questions of law in the negative: (1) whether the purchaser of a product in Ontario can assert implied warranty claims under the SGA against the manufacturer of the product where the manufacturer was not the seller of the product ("Question 1"), and (2) whether the manufacturer or seller of a product, which was not alleged to be dangerous, and which presented no risk of harm, owed the purchaser/user of that product a duty of care, such that the purchaser/user had a claim in negligence to recover damages for a pure economic loss ("Question 2")?

Issues:

1. Did the Motion Judge Err in Striking Out the Statutory Implied Warranty Claim Against Sloan?

2. Did the Motion Judge Err in Striking Out the Claim for Negligence?

3. Did the Motion Judge Err in Refusing Leave to Amend?

Holding:

Appeal dismissed.

Reasoning:

The Court held that the applicable standard of review of a motion judge's determination on a r.21.01(1)(b) motion was correctness.

OCHC alleged that Sloan breached a statutory implied warranty under the SGA as to the fitness of the System relying on s. 15 of the SGA. The Court agreed with the motion judge that it was plain and obvious that the pleadings disclosed no reasonable cause of action. The Court also agreed with the motion judge that Question 1 was inextricably tied to this conclusion, which answered the question in the negative.

The Court did not accept OCHC's submissions using CIT Financial Ltd. v. Sellter Industries Inc., to argue that the pre-sale communications and the receipt of assurances from Sloan arguably made Sloan a seller under the SGA. Given that Sloan was not a party to a contract for the sale of goods, the SGA could not apply, and Sloan's liability rested on its alleged warranties made under the collateral contract. The Court also agreed that the motion judge correctly relied on Arora v. Whirlpool Canada LP, to strike the claim as that case reinforced the motion judge's conclusion that a claim against Sloan in breach of implied warranty under the SGA could not succeed, as Arora is clear that a claim under s. 15 of the SGA against a manufacturer will fail where the manufacturer did not directly sell the product and was not a party to the contract for the sale of goods.

Finally, the Court asserted that the requirement of privity is reinforced by the language of the SGA. The SGA applied where there is a "contract of sale of goods". The Court stated there must be a contract for the sale of goods, whether actual or implied, to invoke the protections of the SGA. Nothing in Arora suggested otherwise.

The Court determined that OCHC's claim against Sloan was a "shoddy goods" claim seeking damages for pure economic loss. The Court asserted that while pure economic loss may be recoverable in certain circumstances, there was no general right in tort protecting against the negligent infliction of pure economic loss. In the Court's view, OCHC's claim was a matter that should customarily be dealt with by contract and not tort.

In the result, Cort held that the motion judge was correct to conclude that it was plain and obvious that the claim in negligence disclosed no reasonable cause of action, had no reasonable prospect of success and that OCHC's claim that water was its property was not supported by the pleadings. Those paragraphs of the pleadings were properly struck and the motion judge correctly answered Question 2 in the negative.

The Court ruled that there was no basis for intervening in the motion judge's discretionary decision refusing leave to amend. The defects that justified striking out the SGA and negligence claims could not be cured by amendment. For the SGA claim, OCHC did not allege that Sloan was a seller or a party to the contract for the sale of goods which was fatal under s.15 of the SGA and could not be cured by amendment.

For the negligence claim, the Court agreed with the motion judge that The Nicholls Chemical Co. of Canada, and R. v. Su, which dealt with the loss of property, were distinguishable from the factual circumstances alleged and that OCHC had failed to allege any further facts which would allow for the characterization of its pure economic loss claim as a property claim to support a viable negligence claim as in those cases.

Fair Voting BC v. Canada (Attorney General), 2025 ONCA 581

[Huscroft, Trotter and Dawe JJ.A.]

Counsel:

N. Rouleau, for the appellant
S. Gaudet, A. Law and R. Koilpillai, for the respondent
J. Nieuwenburg, for the intervener Fair Vote Canada
M. Daniel, for the intervener Aboriginal Council of Winnipeg
T. Lie and M. Moktar, for the intervener Women's Legal Education and Action Fund
W. Rankin and A. Gupta, for the intervener Canadian Lawyers for International Human Rights
S. Choudhry and M. Pal, for the intervener South Asian Legal Clinic of Ontario
A. Honickman and K. Kinsinger, for the intervener Canadian Constitution Foundation

Facts:

The appellant, Fair Voting BC and Springtide Collective for Democratic Society, brought an application to challenge ss. 2(1), 24(1), and 313 of the Canada Elections Act ("CEA"). Section 2(1) defines electoral districts, while s. 24(1) requires the appointment of returning officers for each electoral district. The key provision was s. 313(1), which establishes single-member plurality representation in a riding. In this statutory context, the appellants brought an application seeking a declaration that the federal electoral system was unconstitutional, arguing that it violated the right to vote protected by s. 3 of the Charter and the right to equality protected by s. 15(1The Attorney General of Canada was the respondent in both the initial application and the appeal.

The application judge rejected the appellants' argument that the impugned provisions of the CEA violated the right to vote because it resulted in a disproportion between the number of votes a party receives and the number of seats it secures. The application judge also found that although the evidence demonstrated that Single Member Plurality ("SMP") elections have their flaws and may produce anomalous results, those flaws do not result in the ineffective representation of citizens. The application judge rejected the appellants' argument that the CEA created adverse impact discrimination by causing the underrepresentation of small national parties, women, and racial minorities in Parliament. The application judge emphasized the need for an equality rights claimant to establish "a sufficient causal connection between the state-caused [effect] and the prejudice suffered by the [claimant]", citing the Supreme Court's decision Blencoe v. British Columbia (Human Rights Commission).

Finally, the application judge noted that no evidence was proffered that any person had suffered discrimination on an enumerated ground under s. 15(1). He found it was "far from proven" that the electoral system caused underrepresentation of women in Parliament. Thus, the application judge rejected the attempt to establish an analogous ground of discrimination based on political affiliation as unsupported in the case law.

Issues:

Did the application judge err in finding that the federal electoral system was not unconstitutional?

Holding:

Appeal dismissed.

Reasoning:

Reasoning (Huscroft J.A. and Trotter J.A.):

No. The application judge did not err in finding the federal electoral system was not unconstitutional. The Court of Appeal noted that the Supreme Court has, since R. v. Big M Drug Mart Ltd., repeatedly emphasized the importance of constitutional text, making plain that purposive interpretation is necessarily informed and constrained by the text of the Charter. The Court underlined that Canadians did not adopt a generic charter of rights, they adopted a very specific charter of rights: the Canadian Charter of Rights and Freedoms. The Court noted that the text of the Charter and the constitutional settlement it effects necessarily structure and delimit the scope of purposive interpretation.

The Court went on to outline that the electoral system does not limit the right to vote. The two rights inferred from the right to vote – effective representation and meaningful participation – expand the scope of that right beyond its literal confines. But that expansion is not unlimited: purposive interpretation cannot legitimately change the essential nature of Charter rights. However, the Court noted that it does not permit the judicial incursion into the design of the electoral system the appellants advocated for, let alone require it.

The Court noted that a careful reading of the Supreme Court's decisions demonstrated that the right to vote is not to be understood as broadly as the appellants argued. The Court noted that most recently, in Working Families, the Court found that election spending limits on third parties violated the right to vote, and in Figueroa that the regulation of political party status violated the right to vote. Though the Court acknowledged that these decisions expand the scope of the right to vote, but that the scope of that expansion was limited.

The Court went on to hold that the Charter is neutral as to the type of electoral system that is used, and the purpose of s. 3 "does not enable courts to direct Parliament or the legislatures as to the overall design of the electoral system." The Court noted that the court's role is to "ensure that the right of each citizen to play a meaningful role in the electoral process — whatever that electoral process might be — is upheld".

The Court noted that the constitutional settlement effected by the inclusion of s. 3 in the Charter is a limited one: every Canadian citizen has the right to vote in federal and provincial elections. The Court then underlined that this does not entail a right to be represented by a candidate or party of one's choice, or a right to have that candidate or party share in the political decision-making authority that flows from forming government.

The Court also noted that the right to vote is an individual right: each person may exercise it as he or she sees fit. Democratic political outcomes following elections do not violate the right to vote. The Court concluded by stating that the Canadian electoral system does not conflict with the right to vote.

The Court agreed with the application judge that the appellants' s. 15(1) argument must fail. The Court of Appeal parted from the application judge regarding his analysis into the political and policy realm. The Court of Appeal noted that the application judge asserted that the percentage of women in Parliament is "still too low" and added that "Canadian political leaders and Canadian society overall should be encouraged to strive for gender parity in public institutions, including Parliament and the provincial legislatures." Huscroft J.A. stated that, with respect, these sorts of remarks are out of place in a judicial decision concerned with determining a constitutional challenge, in addition to the application judge's apparent endorsement of expert evidence that Canadian society is systemically sexist and racist.

The Court addressed that individuals are free to join political parties and nominate candidates of their choice; to campaign for or against parties or candidates; and ultimately to cast or withhold their vote for any reason, wise or foolish. The people may, if they choose, vote on the basis of a candidate's sex, race, or any other attribute they consider important. The people are not bound by the Charter and the votes they cast cannot give rise to an outcome that infringes constitutional rights, whether under s. 15(1) or any other provision of the Charter. This is so whether the electoral system is based on SMP or some form or proportional representation. The Court stated that the right to equal protection and benefit of the law without discrimination does not mandate that the electoral system optimize representation in Parliament by sex, race, or any other prohibited ground of discrimination.

The appellants' final argument, that political affiliation should be recognized as an analogous ground of discrimination under s. 15(1), was briefly addressed. The argument that political affiliation is analogous to the other prohibited grounds of discrimination was not found to be developed in the appellants' submissions. Instead, the Court found that they asserted that political affiliation is part of a person's core personal identity, central to their worth, freedom, and dignity – something the government has no interest in expecting a person to change in order to be proportionally represented. The Court found that this assertion had no support in the case law, and the Court saw no error in the application judge's decision rejecting it.

Dawe J.A. (Concurring):

Dawe J.A. wrote separately to note his disagreement with some of Huscroft J.A.'s comments about the role of the courts in assessing the constitutionality of federal, provincial and territorial electoral systems. Dawe J.A. outlined that Huscroft J.A. characterized the s. 3 Charter right as "a right to vote pursuant to the electoral system in operation – whatever that system is, and regardless of the electoral outcomes that may obtain." Elsewhere in his reasons, he suggests that there is no "role for the court in evaluating proposals for electoral reform."

In his view, such a narrow conception of the scope of s. 3, and of the role of the courts in enforcing its guarantees, is at odds with the Supreme Court of Canada's interpretation of s. 3 in the Reference re Prov. Electoral Boundaries (Sask.). Ultimately, he concurred with the colleague's proposed disposition of the appeal and dismissed the appeal.]

Meldazy v. Nassar, 2025 ONCA 590

[Simmons, Rouleau, and Pepall JJ.A.]

Counsel:

D. Zuber and J. Tausendreund, for the appellants
C. Morrison and M. Klassen, for the respondent

Facts:

The respondent had been stopped in traffic when he was rear-ended by a Toronto Transit Commission bus (the "TTC") driven by WN, the other appellant (the "Bus Accident"). The respondent had claimed that, as a result of the bus accident, he had suffered various injuries. Following the Bus Accident, the respondent had been involved in two further motor vehicle accidents (the "Subsequent Accidents"). According to the respondent, the Subsequent Accidents had caused only temporary aggravations to the injuries caused by the bus accident. The trial proceeded in front of a jury for five weeks.

The trial judge subsequently heard submissions concerning the questions to be put to the jury. In her ruling, she had accepted the questions proposed by the respondent and had rejected those proposed by the appellants. The trial judge held that a question concerning causation had been unnecessary because the appellants had admitted negligence, thereby acknowledging a duty of care, a breach of that duty, and that the breach had caused harm beyond de minimis. The trial judge confirmed the general principle that the appellants were only responsible for the harm caused by the bus accident and that the issue for trial would be what damages the respondent had suffered as a result. The appellants, WN and the TTC, appealed from the judgment awarding the respondent over $1.5 million in damages.

Issues:

1. Did the trial judge fail to permit a jury question addressing causation?
2. Did the trial judge fail to permit a jury question concerning apportioning damages between the respondent's three motor vehicle accidents?
3. Did the trial judge fail to summarize in her jury charge important evidence relating to the respondent's credibility?
4. Did the trial judge fail to instruct the jury to disregard the respondent's expert's evidence concerning past income loss?

Holding:

Appeal dismissed.

Reasoning:

No.

The Court found that the trial judge did not err in refusing to permit a standard jury question on causation. The jury had been properly instructed on the "but for" causation test in negligence that the respondent was required to meet. The Court held that the combined effect of the jury question asked, and the trial judge's jury charge had made clear that the jury could award damages to the respondent only if they had been satisfied that any injury suffered by the respondent would not have occurred but for the negligence of the appellants.

The Court held that the trial judge did not err in the decision not to accept the appellants' proposed jury questions concerning the apportioning of damages between the Bus Accident and the Subsequent Accidents. The appellants had not objected at trial to the instructions they subsequently challenged on appeal. Although they had included a ground of appeal concerning those instructions in their notice of appeal, they had confirmed in their appeal factum that they were not advancing it.

The Court held that the trial judge made it clear to the jury that the appellants were "only liable for injuries attributable to the TTC bus accident." The appellants had not taken issue with this instruction. It was accordingly not necessary to entertain the appellants' submissions concerning the trial judge's jury instructions made only in oral argument.

No.

The Court found that the trial judge did not err in summarizing evidence relating to the respondent's credibility. The trial judge had expressly instructed the jury that she was not summarizing all the evidence, and it was their recollection of the evidence that had mattered to determine issues of credibility, reliability, and bias. Furthermore, the appellants' trial counsel had summarized the evidence at issue in his closing address.

No.

The Court held that the trial judge did not err by failing to instruct the jury to disregard the respondent's expert's evidence in her jury instructions. The appellants had the respondent's expert's report prior to the trial and had not objected to the economic loss expert's qualifications or to the admissibility of his evidence on this issue at the time it was adduced.

The respondent's expert's evidence had not been premised on a replacement worker being hired; rather, it had been an attempt to value the extent to which the respondent's ability to earn income had been diminished based on the cost of the work he claimed he had not been doing. No objection had been made prior to the evidence being called.

In the result, the Court was not persuaded that the trial judge had erred in failing to exercise its gatekeeper function in relation to expert evidence.

The Court also considered the damages award for past income loss made by the jury. The Court held that the jury's damages determination should only have been varied if it "had been so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it." This high standard had not been met on appeal.

YG Limited Partnership and YSL Residences Inc. (RE), 2025 ONCA 591

[George, Favreau and Gomery JJ.A.]

Counsel:

M. Milne-Smith, R. B. Schwill, and C. Li, for the appellant, KSV Restructuring Inc.
S. Laubman, for the appellants, 2504670 Canada Inc., 8451761 Canada Inc. and Chi Long Inc.
A. Soutter for the appellants, Yonge SL Investment LP, 2124093 Ontario Inc., E&B Investment Corporation, SixOne Investment Ltd., and Taihe International Group
M. Dunn, S. Stothart and B. Tee, for the respondent, MA

Facts:

The respondent, YSL Residences Inc. (" YSL"), owned a development property. The intention was to develop the property as an 85-storey retail and condominium complex in downtown Toronto. The YSL project was to be completed by 2025. YSL was one of several companies ultimately owned and controlled by DC, which used Cresford as the companies' trade name. Besides the YSL project, in 2019, the Cresford Group was developing three other building projects.

YSL was the general partner of YG and held the project as a bare trustee for the limited partnership. Besides YSL as the general partner, YG was comprised of several Class A limited partners (otherwise known as unitholders). The limited partners collectively advanced $14.8 million to YSL and YG in exchange for their Class A units in YG. The Cresford Group held the Class B units of the partnership. The limited partnership agreement provided that the limited partners, as the holders of Class A units, were entitled to repayment of their investment and a 100% return on their investment for a total of $29.6 million, before the Cresford Group, as holder of Class B units, was entitled to any profit from the YSL project.

MA began working for the Cresford Group in 2004 as a Manager, Special Projects. At the time of her dismissal in December 2019, MA was the Chief Operating Officer and President of the Cresford Group, and an employee and officer of YSL.

In the spring of 2021, YG and YSL filed Notices of Intention to Make a Proposal under the BIA. The Proposal, in part, provided that the Sponsor would pay $30.9 million to the Trustee, KSV restructuring Inc., to be distributed to unsecured creditors with proven claims and that any amounts left over after the distribution to unsecured creditors were to be distributed to equity stakeholders, including the limited partners.

MA filed a proof of claim against YSL for two unsecured claims: $1 million in damages for wrongful dismissal, and $18 million in damages for breach of an oral agreement that MA would be paid 20% of the profits earned from the project.

If the full $18 million were paid out, recovery for unsecured creditors would be reduced from an anticipated 100% to 70%. Further, if the full $18 million is paid out, the limited partners would receive nothing.

An arbitration was initiated to resolve MA's claims against YSL. The first phase allowed both of MA's claims. The second phase was intended to determine damages; it did not proceed due to objections from the Sponsor and limited partners. The Trustee allowed MA's wrongful dismissal claim for $880,000 but disallowed the profit-sharing claim, characterizing it as an equity claim, too remote and contingent, and subordinate to the claims of the limited partners.

MA appealed the Trustee's decision. The appeal judge found the Trustee had erred in characterizing the profit-sharing claim as an equity claim. The appeal judge deemed the profit-sharing claim to be one for unliquidated damages for breach of contract, not dependent on continued employment or the project's actual profitability. The judge also rejected the latter arguments about remoteness and subordination.

Both the Trustee and the limited partners appealed, each raising separate issues on appeal.

Issues:

The Trustee raised the following issues:

1. Did the appeal judge err in finding that the profit-sharing claim is not an equity claim under the BIA?
2. Did the appeal judge err in finding that the profit-sharing claim is not a contingent unliquidated claim that is too speculative or remote?
3. Did the appeal judge err in failing to find that the common law notice period applies to the profit-sharing claim?

The limited partners raised the following issues:

4. Did the appeal judge err in failing to follow her own procedural order?

5. Did the appeal judge err in failing to determine the issues of misrepresentation and breach of fiduciary duty raised by the limited partners while holding that her decision would be res judicata and binding on the limited partners?

6. Did the appeal judge err in failing to find that the profit-sharing agreement was unenforceable?

Holding:

Appeal dismissed.

Reasoning:

No.

The Trustee's argument that MA's profit-sharing claim was "in substance" an equity claim was rejected. The Court found that the appeal judge's interpretation of "equity claim" and "equity interest" in s.2 of the BIA was correct and consistent with statutory intent.

The Court held that the definition of an "equity claim" under the BIA was exhaustive, such that only claims arising from an actual "Equity Interest", defined in the BIA as "share in the corporation, or a warrant or option or another right to acquire a share in the corporation". The Court also found that the definition of "Equity Interest" in the BIA provided an exhaustive list of ownership interests. This left no room for the Trustee's argument that an equity claim could exist "in substance", with such claims being required to originate from an ownership interest. The Court held that this interpretation of the BIA was consistent with the Court's decision in Sino-Forest, where the court focused on the expansive definition of "equity claim", which includes claims for "contribution and indemnity" in relation to the types of claims specifically listed in the definition of "equity claim".

In the result, the Court held that MA's claim was not based on an ownership interest, but rather, on a term of her employment, under which she was entitled to a share of the profits. This was not an equity interest as defined under the BIA, and accordingly, the Court held that the appeal judge had made no error in her decision.

No.

The Court rejected the Trustee's argument that the profit-sharing claim was a contingent claim and too remote because the YSL project was never completed, and profits would have gone first to limited partners.

First, the Court held that once MA accepted the breach of her employment contract, her right to future profits immediately became an unliquidated damages claim, not contingent on future events, with such a decision being consistent with other wrongful dismissal claims in the bankruptcy context. The Court distinguished this case from the decision in Schnier, holding that MA's claim did not depend on a future decision by a third party, but that the breach of contract claimed by MA had already occurred, with the only remaining issue being the quantification of damages.

Second, the Court held that the MA's breach of contract claim was not too remote or speculative. At the time of the breach, MA lost the opportunity to work towards and share in YSL's profits. MA's lost opportunity flowed naturally from the breach and was within the reasonable contemplation of the parties when the profit-sharing agreement was formed.

No.

The Court rejected the Trustee's argument that MA's profit-sharing claim should be limited to the 24-month notice period. It distinguished the Trustee's supporting case law from the facts, noting that MA's termination did not end her profit-sharing entitlement, meaning the claim was not limited by this proposed notice period.

Issues raised by the Limited Partners

No.

The limited partners argued that the appeal judge erred by not addressing misrepresentation, breach of fiduciary duty, and other misconduct allegations as outlined in her earlier procedural order. The Court noted that equity owners rarely have standing in creditor claims, and the appeal judge had discretion to narrow the issues. Further, the Court found that the appeal judge was to determine whether MA's profit-sharing claim was provable in YSL's bankruptcy and that allegations of misconduct against MA would not have been relevant to that determination. It remained open to the limited partners to bring a claim against MA and seek damages directly.

The Court disagreed with the limited partners' argument and noted that the judge only said her rulings on the profit-sharing claim's validity and priority in bankruptcy would be binding – issues like misrepresentation and fiduciary breach were to be left for another court. The Court held that the appeal judge did not determine what aspects of her decision would or would not "have some bearing" on the limited partners' claims against MA.

No.

The Court found that the appeal judge was correct to find that there was no evidence that: (1) MA was an affiliate of YSL, (2) that the profit-sharing deal was a prohibited related-party agreement, or (3) that it was "off-market terms." The Court rejected that these alleged breaches had to be considered alongside alleged misrepresentation or fiduciary breaches, as the record was insufficient. Such issues were for determination in separate litigation.

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

Court Of Appeal Summaries (August 11 – 15, 2025)

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