Court Of Appeal Summaries (April 7-11, 2025)

Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of April 7, 2025.

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The headline decision of the week was Afolabi v. Law Society of Ontario, which involved the bar exam cheating scandal from a few years ago. The Court allowed the LSO's appeal from a Divisional Court decision that had partially quashed the administrative sanctions imposed on candidates following the compromised licensing exams. The Court held that the LSO was not required to grant the candidates an oral hearing before deciding to void their exam results and registrations. The LSO met its duty of procedural fairness by providing the candidates with particulars of the allegations against them and a full opportunity to respond in writing. The Divisional Court was found to have erred by conflating licensing decisions with good character proceedings (they are separate) and by failing to respect the LSO's choice of procedure in dealing with the matter. The Court also found that procedural fairness was breached when the Divisional Court issued costs orders against the LSO without inviting submissions.

In Hillier v. Ontario, the Court found that regulations placing gathering limits because of the COVID-19 pandemic limited the appellant's right to peaceful assembly under s. 2(c) of the Charter and could not be justified under s.1. The Court held that this case was materially different from Trinity Bible Chapel, wherein the Court affirmed that a measure of deference is owed to government decisions that seek to balance competing interests during a fluid public health crisis. In this case, the Court found that there was an absolute, rather than a partial ban and there was no tailoring of the restrictions to facilitate the right to peacefully assemble. The Court invited further submissions from the parties on the remedy to be granted.

In Canadian Western Bank v. Canadian Motor Freight Ltd., the Court dismissed appeals from findings of civil contempt related to the breach of court orders requiring the delivery of a fleet of trucks to a receiver.

In Caruso v Law Society of Ontario, the Court granted three motions to intervene in a case about the scope of practice of paralegals as immigration consultants. One intervenor motion by an organization connected to the appellant, and which requested that it be represented by the appellant on the appeal was dismissed, as there were questions about the impartiality of that intervenor.

In Iredale v. Dougall, a family law case, the Court upheld the trial judge's decision finding that the appellant had established his unjust enrichment claim against the respondent but awarding as a remedy a monetary equalization payment instead of a proprietary interest in the farm. There was no evidence the appellant's work on the farm had increased its value and by the time of trial, the respondent had ceased operating the farm business. The Court also upheld the time-limited spousal support order granted by the trial judge, even though the "Rule of 65" applies (length of marriage plus age of recipient of support is 65 or greater). There is discretion not to grant indefinite support even when the Rule of 65 applies.

In Essex (County) v. Enbridge Gas Inc., the Court dismissed the appeal, determining that the Divisional Court was correct in finding that the Ontario Energy Board made an extricable error of law when it voided a franchise agreement for breach of the rule against perpetuities. That rule does not restrict the duration of vested property right, but only voids contracts and other instruments that vest ownership in property beyond life in being plus 21 years. The OEB therefore erred in finding a franchise agreement from 1957 between Enbridge and the County of Essex void as offending the rule against perpetuities.

In Stride v Syra Group Holdings, a wrongful dismissal case, the Court dismissed an employee's motion for security of costs of the appeal brought by their employer. The appeal was not shown to be unmeritorious and there was insufficient evidence of efforts by the appellant employer to dispose of assets.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Stride v. Syra Group Holdings, 2025 ONCA 265

Keywords: Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, rr. 61.06(1), 56.01(1)(d), Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, 2010 ONCA 137, Rathod v. Chijindu, 2024 ONCA 317, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, York University v. Markicevic, 2017 ONCA 651, York University v. Markicevic, 2017 ONCA 651, Lavallee v. Isak, 2022 ONCA 290, Henderson v. Wright, 2016 ONCA 89, Perron v. Perron, 2011 ONCA 776, Gauthier Estate v. White, 2022 ONCA 846, 798839 Ontario Ltd. v. Platt, [2014] O.J. No. 6077 (C.A.)

Hillier v. Ontario, 2025 ONCA 259

Keywords: Constitutional Law, Freedom of Peaceful Assembly, Oakes Test, Provincial Offences, Canadian Charter of Rights and Freedoms, s. 2(c), Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17, Rules for Areas in Stage 1, O. Reg. 82/20, Sch. 4, s. 1(1)(c), Stay-at-Home Order, O. Reg. 265/21, Sch. 1, s. 1(1), Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, Criminal Code, R.S.C. 1985, c. C-46, Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134, Harjee v. Ontario, 2023 ONCA 716; Gateway Bible Baptist Church et al. v. Manitoba et al., 2023 MBCA 56, leave to appeal refused, [2023] S.C.C.A. No. 369; Beaudoin v. British Columbia (Attorney General), 2022 BCCA 427, leave to appeal refused, [2023] S.C.C.A. No. 78; Grandel v. Government of Saskatchewan, 2024 SKCA 53, leave to appeal refused, [2024] S.C.C.A. No. 317, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Housen v. Nikolaisen, 2002 SCC 33, Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732, aff'd 2021 SCC 34, R. v. Sharma, 2020 ONCA 478, R. v. Sharma, 2022 SCC 39, Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, Ontario (Attorney General) v. G, 2020 SCC 38, Frank v. Canada (Attorney General), 2019 SCC 1, R. v. K.R.J., 2016 SCC 31, Canada (Attorney General) v. Bedford, 4 2013 SCC 72, Carter v. Canada (Attorney General), 2015 SCC 5, R. v. Oakes, 3 [1986] 1 S.C.R. 103, Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, Dunmore v. Ontario (Attorney General), 3 2001 SCC 94, R. v. Butler, [1992] 1 S.C.R. 452, Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, U.F.C.W., Local 1518 v. KMart Canada, [1999] 2 S.C.R. 1083, Schachter v. Canada, [1992] 2 S.C.R. 679, R. v. O'Connor, [1995] 4 S.C.R. 411

Canadian Western Bank v. Canadian Motor Freight Ltd., 2025 ONCA 263

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Orders, Enforcement, Contempt, Evidence, Hearsay, Appeals, Fresh Evidence Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. s. 193(e), R. v. Palmer, [1980] 1 S.C.R. 759, Carey v. Laiken, 2015 SCC 17

Afolabi v. Law Society of Ontario, 2025 ONCA 257

Keywords: Regulated Professions, Lawyers, Licensing, Discipline, Administrative Law, Procedural and Natural Justice, Right to be Heard, Standard of Review, Civil Procedure, Appeals, Fresh Evidence, Law Society Act, RSO 1990, c. L.8, s. 1(3), 27(2), 27(4), Law Society of Ontario By-Law 4, s. 8, 14(2), 18, Law Society of Ontario Licensing Process Policies, Part XIII, s. 13.4, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Khan v. University of Ottawa (1997), 34 O.R. (3d) 535 (C.A.), Michalski v. McMaster University, 2022 ONSC 2625, Barendregt v. Grebliunas, 2022 SCC 22, Palmer v. The Queen, [1980] 1 S.C.R. 759, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, Canada (Minister of Citizenship and Immigration) v.Vavilov, 2019 SCC 65, Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, Northern Regional Health Authority v. Horrocks, 2021 SCC 42, Hydro-Quebec v. Matta, 2020 SCC 37, H.L. v. Canada (Attorney General), 2005 SCC 25, Konstan v. Berkovits, 2024 ONCA 510, Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, Halsbury's Laws of Canada, "Administrative Law", Toronto: LexisNexis Canada, 2022 Reissue

Caruso v Law Society of Ontario, 2025 ONCA 270

Keywords:Regulated Professions, Paralegals, Licensing, Civil Procedure, Appeals, Intervenors, Friends of the Court, Refugee Protection Act, S.C. 2001, c. 27, s. 91, College of Immigration and Citizenship Consultants Act, Statutory Powers and Procedures Act, Meat Inspection Act (Ontario), R.S.O. 1990, c. M.5, Rules of Civil Procedure, rr. 13.02, 13.03(2), 15.01(2), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 1990 CanLII 6886 (ON CA), Foster v. West, 2021 ONCA 263, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, Jones v. Tsige, 2011 CanLII 99894 (ON CA), Daly v. Ontario Secondary School Teachers' Federation, 1999 CanLII 7319 (ON CA), Harper v. Harper (1979), 1979 CanLII 168 (SCC), Young v. Young 1993 CanLII 34 (SCC), GlycoBioSciences Inc. (Glyco) v. MAGNA Pharmaceuticals, Inc. (Magna), 2024 ONCA 760, GlycoBioSciences Inc. (Glyco) v. Industria Farmaceutica Andromaco, S.A., de C.V. (Andromaco), 2024 ONCA 481, Baldwin v. Imperial Metals Corporation, 2021 ONCA 114, Henry v. Zaitlen, 2023 ONCA 740

Iredale v. Dougall, 2025 ONCA 266

Keywords: Family Law, Property, Joint Family Venture, Unjust Enrichment, Remedies, Equalization of Net Family Property, Constructive Trust, Family Law Act, R.S.O. 1990, c. F.3, ss. 4(2), 5(6), 5(7), 10(1), 18 and 18(3), Spousal Support Advisory Guidelines, Ottawa: Department of Justice, 2008, Martin v. Sansome, 2014 ONCA 14, McNamee v. McNamee, 2011 ONCA 533, Tsai v. Dugal, 2022 ONCA 81, Djekic v Zai, 2015 ONCA 25, Hickey v. Hickey, [1999] 2 S.C.R. 518, Kerr v. Baranow, 2011 SCC 10, Korman v. Korman, 2015 ONCA 578, Moore v. Sweet, 2018 SCC 52, Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, Lesko v. Lesko, 2021 ONCA 369, Green v. Green, 2015 ONCA 541, Townshend v. Townshend, 2012 ONCA 868, White v. White, 2021 ONSC 6018, Thompson v. Thompson, 2013 ONSC 5500, Politis v. Politis, 2021 ONCA 541, Fisher v. Fisher, 2008 ONCA 11, 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, Castlerigg Investments Inc. v. Lam (1991), 2 O.R. (3d) 216 (Gen. Div.), Degroote v. Canadian Imperial Bank of Commerce (1999), 121 O.A.C. 327 (Ont. C.A.)

Essex (County) v. Enbridge Gas Inc., 2025 ONCA 268

Keywords:Administrative Law, Energy Regulation, Contracts, Franchise Agreements, Property Law, Rule Against Perpetuities, Civil Procedure, Appeals, Standard of Review, Municipal Franchises Act, R.S.O. 1990, c. M.55, s. 10(1), Ontario Energy Board Act, 1998, S.O. 1998, c. 15, Sched. B., ss. 90(1), 96(1), s. 101, Essex (County of) v. Enbridge Gas Inc., 2024 ONSC 866, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Dawn-Euphemia (Township) v. Union Gas Ltd., 2004 CarswellOnt 3909 (Div. Ct.),leave to appeal refused, 2004 CarswellOnt 3861 (C.A.), Ottawa (City) v. ClubLink Corporation ULC, 2021 ONCA 847,leave to appeal refused, [2022] S.C.C.A. No. 17, Clarke v. Kokic, 2018 ONCA 705, leave to appeal refused, [2018] S.C.C.A. No. 459, O'Dell v. Gregory (1895), 24 S.C.R. 661, Re Campeau Family Trust (1984), 44 O.R. (2d) 549 (H.C.), aff'd 50 O.R. (2d) 296 (C.A.), Re Ogilvy (1966), 58 D.L.R. (2d) 385 (Ont. H.C.), Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, R. v. Sullivan, 2022 SCC 19, Delta Acceptance Corporation Ltd. v. Redman, [1966] 2 O.R. 37 (C.A.), Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2020 ONCA 612, R. v. Kirkpatrick, 2022 SCC 33

Short Civil Decisions

Botosh v. Soric, 2025 ONCA 256

Keywords: Torts, Negligence, Slip and Fall, Civil Procedure, Striking Pleadings, Abuse of Process, Samuel Manu-Tech Inc. v. Redipac (1999), 38 C.P.C. (4th) 297 (Ont. C.A.), Reynolds v. Kingston, 2007 ONCA 166, Yan v. Hutchinson, 2023 ONCA 97, FNF v. Wag and Train, 2023 ONCA 92

Business Development Bank of Canada v. Neural Systems Inc., 2025 ONCA 262

Keywords: Contracts, Debtor-Creditor

40 Park Lane Circle v. Aiello Estate, 2025 ONCA 269

Keywords: Contracts, Damages

Jarvis v. 1CM Inc., 2025 ONCA 271

Keywords: Corporations, Shareholders, Contracts, Options, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Ezomo v. Afriyie, 2025 ONCA 272

Keywords: Contracts, Real Property, Mortgages, Remedies, Power of Sale, Civil Procedure, Default Judgments, Setting Aside, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194

Affleck v. Sunrise Senior Living, Inc., 2025 ONCA 267

Keywords: Torts, Defamation, Negligent Infliction of Nervous Shock

CIVIL DECISIONS

Stride v. Syra Group Holdings, 2025 ONCA 265

[Paciocco J.A. (Motions Judge)]

Counsel:

T. Vasdani, for the moving party

A. Khan, for the respondent

Facts:

The moving party sought an order for security for costs against the appellant for $100,000, relating to the respondent's appeal of a wrongful dismissal finding against it that resulted in a damage award of $175,000.

Issues:

Was the moving party entitled to an order for security for costs of the pending appeal?

Holding:

Motion dismissed.

Reasoning:

No. The Court outlined the two-step process required before ordering security for costs against an appellant pursuant to r. 61.06(1). "The first question is whether the requirements of r. 61.06(1)(a), (b), or (c) are met. If so, the second question is whether it would be just to order security, considering the circumstances and the interests of justice": Thrive Capital Management. Additionally, the Court stated that the relevant factors in deciding whether it would be just to order security are not closed: Yaiguaje v. Chevron Corporation.

The Court noted that r. 61.06(1)(b) permits an order for security for costs to be made only when such an order "could be made against the appellant under rule 56.01". Further, a r. 56.01 security for costs order can be made only on motion by "the defendant or respondent in a proceeding". Since the moving party was not a defendant or respondent in the action that led to the order under appeal, she could not have obtained a security for costs order against the respondent under r. 56.01. Therefore, the Court held that it could not make a security for costs order against the respondent pursuant to r. 61.06(1)(b): Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC; Rathod v. Chijindu.

Alternatively, the Court explained that a security for costs order can be granted under r. 61.06(1)(c) if there is a "fairly compelling reason" that is distinct from rr. 61.06(1)(a) and (b) and that is related to the purpose for ordering security for costs, which is to address an unacceptable risk that any costs ordered on the appeal will not be obeyed: Combined Air Mechanical Services Inc. v. Flesch; Thrive Capital Management Ltd.

The Court noted that the requirement that the basis for a r. 61.06(1)(c) order must be "distinct" ensures that "a party seeking an order for security for costs under rule 61.06(1)(c) may not resort to what are in effect the same grounds that would support a rule 56.01 order when it is barred ... from relying on subrule 1(b)": Donaldson International. The Court held a r. 61.06(1)(c) order could not rest solely on two of the grounds advanced by the moving party, namely, the alleged failure of the respondent to pay an order for costs in the same proceeding, and her claim that there was "good reason to believe that [the respondent, a corporation] [had] insufficient assets in Ontario to pay the costs".

The remaining ground that the moving party pursued as providing "other good reason" for a security for costs order was her claim that there was good reason to believe that the respondent was "liquidating [its] assets to avoid payment of the Judgment and/or Costs Awards." The Court stated that conduct by an appellant showing that they are taking steps to put assets out of reach of creditors is a material consideration in a r. 61.06(1)(c) application: Thrive Capital Management Ltd. Websites formerly linked to the respondent and its associate included buildings in numerous cities in the moving party's portfolio, but those websites were taken down after the trial. Photographic images were also put into evidence of the CFO of the respondent gathering documents and removing boxes from the Etobicoke office of the apartment building where the moving party resided.

Notwithstanding this evidence, the Court had two concerns about making a r. 61.06(1)(c) order on this basis. First, judges of the Court who had made or refused to set aside security for costs orders because of a concern that a costs award may be evaded or disobeyed tended to do so after finding that the appeal was weak, without merit, or unlikely to succeed: York University v. Markicevic,; Gardiner Miller Arnold LLP v. Kymbo International Inc.; Lavallee v. Isak; Henderson v. Wright; Perron v. Perron; Gauthier Estate v. White; 798839 Ontario Ltd. v. Platt. The Court stated that this was sensible since the strength of an appeal bears directly on the risk that an adverse costs award will be made against the appellant but then left unpaid. The moving party did not suggest that the respondent's appeal was weak. Further, the Court examined the grounds of appeal and held that they were not clearly without merit.

Second, the Court stated that while there was reason to apprehend that the respondent may have taken steps to avoid payment of the trial judgment and costs, the circumstantial case that it was in fact doing so was not strong. Although the moving party alleged dishonest conduct by the respondent in the conduct of the litigation, there were no findings of fraud, contempt, or breach of court orders made. In the absence of indications that the appeal was weak, the Court stated that it would require more compelling proof of evasion before finding there to be "other good cause" for making a security for costs order.

Hillier v. Ontario, 2025 ONCA 259

[Lauwers, Zarnett and Pomerance JJ.A.]

Counsel:

C. Fleury and H. Kheir, for the appellant.

R. Cookson and P. Ryan, for the respondent

Facts:

This appeal arises from a finding that the appellant's right to peaceful assembly under s.2(c) of the Charter was restricted by pandemic related regulations that imposed limits on gatherings, but those limits were justified under s.1 of the Charter.

The appellant, who was a member of the Legislative Assembly for the riding of Lanark-Frontenac-Kingston, defied limits imposed on gatherings during the COVID-19 pandemic and attended several protests between April and May 2021. As s a result of two specific gatherings, one in Kemptville, Ontario on April 8, 2021, and another in Cornwall, Ontario on May 1, 2021, he was charged with provincial offences for acting as a host or organizer under s.10.1(1) of the Reopening Ontario (A Flexible Response to COVID-19) Act. The offences carried a possible fine of $10,000 to $100,000 plus the possibility of imprisonment for up to a year. The appellant challenged the constitutionality of two regulations: the Shutdown Order provisions of which prohibited people from attending certain gatherings with express carveouts; and 2) the Stay-at-Home Order, which worked in tandem with the Shutdown Order. The appellant argued these regulations placed limits on his s. 2(c) Charter rights which could not be justified under s.1. Specifically, he challenged the Shutdown Order between April 17, 2021, and May 22, 2021, in which an absolute ban on outdoor assembly was in force, and the Stay-at-Home Order generally. He asked that the regulations be declared of no force or effect under s.52(1) of the Constitution Act, 1982.

Issues:

Is the absence of an exception to the COVID-19 gathering limits to accommodate the fundamental freedom of peaceful assembly protected by s. 2(c) of the Charter demonstrably justified under s. 1?

Holding:

Appeal allowed.

Reasoning:

No.

The Court concluded that the gathering limits at issue were not demonstrably justified under s. 1 of the Charter. The Court clarified that this case was not about the merits of governmental responses to the COVID-19 pandemic, nor was it about the merits of the limited exemption in the relevant restrictions on outdoor religious gatherings, which was addressed in Trinity Bible Chapel. Rather, the focus of the appeal was narrower, concerning the effect of the gathering limits as they pertain to the right to peacefully assemble.

In its two-part analysis the Court noted that although the province conceded that the gathering limits did limit the appellant's fundamental freedom of peaceful assembly, it was nonetheless necessary to develop the principled basis for determining his s. 2(c) rights were limited. The Court noted that this was a necessary precondition to an informed s.1 analysis, which ultimately required the court to determine whether the negative impact of the gathering limits was proportionate to the goal of limiting the spread of COVID-19.

Section 2(c)

The Court noted that the text of s. 2(c) should be interpreted in context with its inclusion among all of the fundamental freedoms listed in s. 2 with each being given independent meaning, but those freedoms are not mutually exclusive. Thus, the case-specific context determines which freedom, or freedoms, are engaged and the weight or emphasis each might attract. The Court noted that this case was marked and distinguished from Trinity Bible Chapel, in that there is only one claim advanced under s.2(c) only.

According to the Court, s. 2(c) is jurisprudentially underdeveloped. In identifying the section's governing principles, the Court picked out, adapted and adopted seven propositions "as correct statements of the law in building out the contours of s. 2(c)" In applying these principles, the Court noted that, as a form of peaceful assembly, political protests are given constitutional protection. According to the Court, this is because s. 2(c)'s role in a constitutional democracy is to "validate the legitimacy and value of experiential, collective and public democracy" and political participation. The Court found that in this case, the ban on assemblies for political protest imposed by the gathering limits was absolute and no opportunity was provided for the "goods" the fundamental freedom protects. The Court noted that the presence of alternative forums for protest, such as social media or virtual gatherings, was not sufficient to render the absolute prohibition on gatherings constitutionally compliant. Thus, the prohibition required justification under s. 1 of the Charter.

Oakes Test Analysis under Section 1:

The Court reiterated that the method for assessing whether a limit on a fundamental freedom is demonstrably justified under s. 1 was prescribed by the Supreme Court in R. v. Oakes. The Court found that the province met the first step of the Oakes test, a point conceded by the appellant, because the restrictions were imposed to address a pressing and substantial concern, namely COVID-19.

As for the second step, determining whether there is proportionality between the objective of the legislation and the means chosen to achieve it, the Court found that the province met the first step of the proportionality assessment. That is, restricting the gathering of people was a rational means of reducing the transmission of COVID-19.

With respect to the minimal impairment portion of the proportionality assessment, the Court found that the application judge drawing on Trinity Bible Chapel as an example of a tailored government response to the pandemic was an error that coloured his minimal impairment analysis. The Court noted that it is a longstanding principle that blanket prohibitions are generally not minimally impairing under s.1: U.F.C.W., Local 1518 v. KMart Canada. The Court agreed with the appellant that an outright ban on peaceful assembly cannot meet the minimal impairment test in this case. That conclusion meant that the gathering limits were unconstitutional. However, the Court continued to the next steps of the test in the event that conclusion was mistaken. For the final part of the test – assessing whether the deleterious effects of the gathering limits were proportionate to its salutary effects – the Court found that the application judge had made a basic error in his approach to the question. He did not assess peaceful assembly separately as a fundamental freedom protected by s. 2(c) of the Charter. The Court clarified that, as instructed in Ontario (Attorney General) v. G, at this stage of the test, the court must focus on justifying the specific infringing measure, not the law as a whole, something the application judge failed to do. The Court found that there was no evidence as to the increase in risks that would have been posed by an exemption for outdoor peaceful assembly or protests that matched the exemption for permitted gathering. More particularly, there was no evidence as to the increase in risk posed by the outdoor protests in which the appellant participated. Further and perhaps most importantly, there was no evidence that Ontario ever considered an exemption for peaceful assembly for outdoor political protests.

The Court concluded that the deleterious effects of the absolute ban on peaceful assembly, particularly outdoor political protests during the period of April 17, 2021 to May 22, 2021, exceeded the benefits of these particular gathering limits on the spread of COVID-19. Ontario had failed to demonstrably justify these limits on the peaceful assembly rights of the appellant under s. 2(c) of the Charter, as required by s. 1.

The parties were asked for further submissions on the appropriate remedy.

Canadian Western Bank v. Canadian Motor Freight Ltd., 2025 ONCA 263

[Lauwers, Nordheimer and Wilson JJ.A.]

Counsel:

M. Singh, for the appellants, United Group of Companies Ltd., M. S. B., D. S. M. and T. S. D. (COA-25-CV-0030)

K. Holder, for the appellants, Canadian Motor Freight Ltd., 2568403 Ontario Inc., I. H., S. S. K. and S. S. A. (COA-25-CV-0100)

C. Li and N. MacParland, for the respondent, Ernst & Young Inc., in its capacity as court-appointed receiver (COA-25-CV-0030 & COA-25-CV-0100)

M. Poliak, for the respondent, Canadian Western Bank (COA-25-CV-0030 & COA-25-CV-0100)

Keywords:Bankruptcy and Insolvency, Receiverships, Civil Procedure, Orders, Enforcement, Contempt, Evidence, Hearsay, Appeals, Fresh Evidence Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. s. 193(e), R. v. Palmer, [1980] 1 S.C.R. 759, Carey v. Laiken, 2015 SCC 17

Facts:

There were two separate appeals which arose out of a Receivership Order made under the Bankruptcy and Insolvency Act. One set of appellants consisted of the debtor and its management (the "Debtor"), and the other set of appellants consisted of the United Group of Companies (the "United Group"). The motion judge found both sets of appellants to be in civil contempt of the Receivership Order, and a related Asset Recovery Order.

The Receivership Order required the Debtor to turn over its assets, which included a fleet of trucks, to the control of the Receiver without any interference. Instead of doing so, the Debtor moved the trucks to a yard owned by the United Group. The Receiver attempted to recover the trucks by negotiating with the United Group to no avail. As a result, the Receiver obtained the Asset Recovery Order that required the United Group to provide the Receiver with access to its yard in order to retrieve the trucks. The United Group failed to allow the Receiver access. The motion judge found the Debtor and the United Group in civil contempt of the Receivership Order and the Asset Recovery Order. As a result, the motion judge sentenced an individual from the United Group to four days in prison.

Issues:

Did the motion judge fail to provide sufficient reasons for the finding that the United Group was in civil contempt?
Did the motion judge err in his sentencing and the cost awards made?
Did the motion judge err in finding that the Debtor was in civil contempt?

Holding:

Appeals dismissed.

Reasoning:

There was no basis for the assertion that the motion judge failed to give adequate reasons for the finding that the United Group was in civil contempt. The motion judge's reasons were detailed and clear. The motion judge found that the negotiations the United Group had with the Receiver were for the purpose of stalling the Receiver. The United Group failed to provide the Receiver with access to the yard, as the Asset Recovery Order expressly mandated. The United Group failed to demonstrate any palpable and overriding error.

The United Group required leave to appeal the cost award, which they did not seek. If they had, leave would have been denied. Regarding the appropriate sentence for civil contempt, this was a matter that was entirely within the discretion of the judge making the finding of contempt. The United Group had not demonstrated any error in principle in the sentences imposed by the motion judge.

The Debtor asserted that moving the trucks to the United Group yard was undertaken in the normal course of business. There was conflicting evidence on this point. The motion judge found that the trucks had been moved to the United Group's yard from the Debtor's premises after the Receivership Order was made and that this was done in contravention of the Receivership Order. The Court found that this was a finding of fact that was available to the motion judge on the record.

The Debtor delivered the trucks to the United Group's yard instead of to the Receiver as they were required to do. The Receivership Order was clear and the Debtor was aware of it and did not comply. Accordingly, the Debtor failed to show any palpable and overriding error in the motion judge's finding of contempt.

The appeals were dismissed and the stay of sentences imposed was vacated.

Afolabi v. Law Society of Ontario, 2025 ONCA 257

[Gillese, Roberts and Coroza JJ.A.]

Counsel:

S. Dewart and T. Gleason, for the appellant

A. Rouben, for the respondents A. V., S. S., M. Q., Q. B., H., S., P. B. and A. A.

G. Ko and F. Nasca, for the respondents A. A., H. K., N. O., I. T. and F. Z.

M. Z. Tufman, for the respondents N. S., G. S., K. A., J. N. and J. O.

J. Haylock and D. Christy, for the respondent S. S.

F. M., acting in person

Keywords: Regulated Professions, Lawyers, Licensing, Discipline, Administrative Law, Procedural and Natural Justice, Right to be Heard, Standard of Review, Civil Procedure, Appeals, Fresh Evidence, Law Society Act, RSO 1990, c. L.8, s. 1(3), 27(2), 27(4), Law Society of Ontario By-Law 4, s. 8, 14(2), 18, Law Society of Ontario Licensing Process Policies, Part XIII, s. 13.4, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Khan v. University of Ottawa (1997), 34 O.R. (3d) 535 (C.A.), Michalski v. McMaster University, 2022 ONSC 2625, Barendregt v. Grebliunas, 2022 SCC 22, Palmer v. The Queen, [1980] 1 S.C.R. 759, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, Northern Regional Health Authority v. Horrocks, 2021 SCC 42, Hydro-Quebec v. Matta, 2020 SCC 37, H.L. v. Canada (Attorney General), 2005 SCC 25, Konstan v. Berkovits, 2024 ONCA 510, Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, Halsbury's Laws of Canada, "Administrative Law", Toronto: LexisNexis Canada, 2022 Reissue

Facts:

In November 2021, the Law Society of Ontario ("LSO") administered approximately 1,700 licensing examinations for barrister and solicitor candidates. Afterward, it discovered that the integrity of the exams had been compromised when a tutoring agency, NCA Exam Guru ("NEG"), was found to have obtained the exam content in advance. The LSO also uncovered "cheating keys" that replicated the exam questions and answers. Following an initial review, the Licensing Department identified candidates whose results suggested potential use of a cheating key and retained Caveon Exam Security to conduct a statistical analysis. Caveon flagged anomalies in roughly 10% of the exams, indicating that the affected candidates may have had advance access to the exam material. External counsel was also retained to investigate the character of those identified.

Twenty candidates flagged by Caveon—most of whom were linked to NEG—brought applications for judicial review after receiving letters from the Director of the Licensing Department in August 2022. The letters concluded that each candidate had engaged in prohibited actions and imposed administrative sanctions, including voiding their exam results and registration in the licensing process. The candidates were informed they could reapply after one year, but would need to disclose the outcome of the decision in future licensing applications and could face further good character reviews. The Divisional Court upheld the LSO's decision to void the exam results but found that the additional consequences were imposed without a hearing or a finding of intentional misconduct, breaching procedural fairness. It quashed the decision in part, remitted the matter to the LSO, and awarded costs to the Applicants. The LSO appealed, asserting that its actions were fair in light of the governing statutory framework and that the costs orders against the LSO were procedurally flawed.

Issues:

Should the LSO be permitted to adduce fresh evidence on appeal relating to the Divisional Court's failure to permit costs submissions?
Did the Divisional Court err in concluding that the process it adopted in voiding the Applicants' registrations in the licensing process was unfair?
Did the Divisional Court err by deciding costs without allowing the parties to make submissions?

Holding:

Appeal allowed.

Reasoning:

Standard of Review

The Court noted that that the Divisional Court correctly identified the appropriate approach for reviewing the Registration Decision, it therefore fell to the Court to "step into the shoes" of the Divisional Court and see whether it correctly applied the Baker factors. In this regard, the Court owed no deference to the decision of the Divisional Court.

Should the LSO be permitted to adduce fresh evidence on appeal relating to the Divisional Court's failure to permit costs submissions?

Yes. Appellate courts have the discretion to admit additional evidence to supplement the record on appeal where the evidence: (1) could not, by the exercise of due diligence, have been available at the first instance hearing; (2) is relevant, in that it bears on a decisive or potentially decisive issue; (3) is credible, in the sense that it is reasonably capable of belief; (4) if believed, could have affected the result below: Palmer v. The Queen.

The Court noted that the proposed evidence was "new", rather than "fresh", because the evidence relating to the Divisional Court's handling of costs submissions occurred after the Applications were heard. The Palmer test for admission applies to both new and fresh evidence, however, the application of the criteria differs somewhat depending on whether the proposed evidence is new or fresh: Barendregt.

The Court found that the first criterion for admitting new evidence was met, as the evidence arose only after the Applications were heard. The LSO could not, with due diligence, have presented the evidence earlier. It acted promptly upon receiving the Divisional Court's reasons by writing to the Registrar to request an opportunity for costs submissions, which would have included the proposed resolutions, before the Divisional Court became functus.

The Court further held that the second, third, and fourth criteria were satisfied, as the new evidence:

i. was relevant – because it bore on the costs issue and the validity of the process the Divisional Court followed in making the Costs Orders;
ii. was credible – as it was sworn by co-counsel for the LSO on the Applications and was reasonably capable of belief; and
iii. if believed, could have affected the Costs Orders.

Did the Divisional Court err in concluding that the process it adopted in voiding the Applicants' registrations in the licensing process was unfair?

Yes. The Divisional Court concluded that the LSO breached the Applicants' right to procedural fairness when it cancelled their registrations in the licencing process without having held an oral hearing. It applied the Baker factors to reach this conclusion. The Divisional Court erred in its application of those factors and wrongly concluded that the LSO had breached its duty of procedural fairness.

The Supreme Court in Baker set out the following list of non‑exhaustive factors as relevant to determining what the common law duty of procedural fairness requires in a given set of circumstances:

i. the nature of the decision being made and the process followed in making it;
ii. the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
iii. the importance of the decision to the affected individual(s);
iv. the legitimate expectations of the person challenging the decision; and
v. the choices of procedure made by the decision-maker, particularly where the statute leaves to the decision-maker the ability to choose its own procedure.

i – the nature of the decision being made

The Divisional Court erred in finding that the Registration Decision required a quasi-judicial process or an oral hearing. In assessing the first Baker factor—the nature of the decision—the Court emphasized that the decision was made by the Director of the Licensing Department pursuant to By-law 4 and the Licensing Process Policies, both of which govern administrative functions without prescribing a process resembling a judicial or trial model. The applicable provisions deem certain licensing milestones void in cases of false or misleading declarations, but they do not mandate any specific procedural safeguards akin to those found in adjudicative proceedings.

The Court found that the Registration Decision was administrative in nature and did not engage the type of decision-making that would require heightened procedural protections. It rejected the Divisional Court's finding that the decision was based on good character concerns, clarifying that while good character is a general requirement for licensing, the record did not support the conclusion that it was the basis for the Director's decision. The Divisional Court was found to have conflated the distinct functions of the Licensing Department and the Professional Regulation Division, leading to a misapplication of the relevant statutory framework.

ii – the nature of the statutory scheme pursuant to which the body operates

The Court found that the Divisional Court erred in its application of the second Baker factor by mischaracterizing the nature of the statutory scheme under which the Licensing Department operates. The Court emphasized that the Licensing Department's decision-making authority, under By-law 4 and the Licensing Process Policies, is administrative and distinct from the quasi-judicial processes that apply when good character concerns trigger a referral to the Law Society Tribunal under section 27(4) of the LSA. Section 1(3) of the LSA makes clear that a hearing is only required where explicitly mandated by statute, regulation, or by-law—which was not the case here. The Registration Decision concerned breaches of licensing examination rules, not determinations about the Applicants' overall character or fitness to practice law.

The Court clarified that the Licensing Department's actions were limited to voiding examination results and registration based on prohibited actions identified through the Caveon report and internal consultation. Communications to the Applicants made clear that character assessments were outside the Department's scope and within the jurisdiction of the Professional Regulation Division. The Court found that the Divisional Court improperly conflated these functions and wrongly assumed that the Registration Decision was grounded in concerns about good character. Instead, the decision was administrative, fact-specific, and properly made without an oral hearing. Accordingly, the Court concluded that the statutory scheme did not require quasi-judicial procedures for the Licensing Department's actions.

iii – the importance of the decision to the affected individual

The Court agreed with the Divisional Court that the Registration Decision was important to the Applicants, given its significant consequences, including a one-year waiting period to re-register, the need to repeat experiential training, and the obligation to disclose the outcome in future applications across Canada. However, the Court found that the Divisional Court erred in suggesting that the Applicants suffered a permanent reputational stain due to the Law Society's actions, clarifying that the matter only became public because the Applicants initiated proceedings. Nonetheless, the Court held that this misapprehension did not amount to an overriding error, as the decision's importance was independently supported by its broader professional implications.

iv – the Applicants' expectations

The Court held that the Divisional Court erred in finding that the Applicants had a legitimate expectation of an oral hearing. Under the fourth Baker factor, such an expectation arises only where the decision-maker makes a clear promise or has an established practice of providing hearings. The Court found no evidence that the Licensing Department had made any such promise or regularly held oral hearings in similar circumstances. The Department acted in accordance with By-law 4 by providing the Applicants an opportunity to make written submissions before voiding their exam results and registration. References to a possible future hearing related only to a separate good character process under section 27(4) of the LSA. As such, the Applicants could not reasonably have expected an oral hearing in connection with the Registration Decision.

v – the choices of procedure the Licensing Department adopted

The Court found that the Divisional Court erred in failing to properly assess the fifth Baker factor, which requires deference to the procedures adopted by an administrative body when the governing legislation permits it to choose its own process. The Licensing Department, operating under By-law 4 and facing the task of assessing over 150 candidates flagged for possible exam misconduct, developed a process that balanced administrative feasibility with fairness. The Applicants received full disclosure of the evidence against them, including the Caveon report and investigation findings, and were given multiple opportunities to respond through written submissions. They were also offered an internal review, which resulted in a reduction of their disqualification period. In this context, the Court held that the procedures adopted by the Licensing Department met the requirements of procedural fairness.

Conclusion

The Court concluded that the Divisional Court erred by conflating the distinct roles of the Licensing Department and the Professional Regulation Division, each governed by separate legislative provisions and subject to different procedural fairness considerations. The Licensing Department acted within its authority under By-law 4, which does not require a hearing before making a registration decision, unlike section 27 of the LSA. In responding to the compromised November 2021 exams, the Licensing Department appropriately focused on the integrity of the licensing process, while the Professional Regulation Division investigated broader ethical concerns. Applying the Baker factors, the Court found that the procedures followed by the Licensing Department met the requirements of procedural fairness, and it dismissed the Applications.

Did the Divisional Court err by deciding costs without allowing the parties to make submissions?

Yes. The Court found that the Divisional Court erred in making the Costs Orders without giving the parties an opportunity to make submissions, which constituted a breach of procedural fairness. While the issue was not strictly necessary to decide given the dismissal of the Applications and the resulting entitlement of the LSO to costs as the successful party, the Court nonetheless addressed it. It held that the right to be heard applies to costs decisions, and the failure to allow submissions deprived the LSO of the chance to argue that the Applicants were not largely successful and to raise relevant considerations such as prior resolution offers. The filing of bills of costs was not sufficient to satisfy this obligation.

Caruso v Law Society of Ontario, 2025 ONCA 270

[Wilson J.A. (Motions Judge)]

Counsel:

A. C., acting in person

N. R. Hasan and S. Aylward, for the respondent

W. Khan for the proposed intervener, Ontario Paralegal Association

R. W. Staley and I. W Thompson for the proposed intervener, College of Immigration and Citizenship Consultants

S. Choudhry for the proposed intervenor, Canadian Immigration Lawyers Association

T. S., U. K., and A. L., acting in person for the Canadian Paralegal Alliance

Keywords: Regulated Professions, Paralegals, Licensing, Civil Procedure, Appeals, Intervenors, Friends of the Court, Refugee Protection Act, S.C. 2001, c. 27, s. 91, College of Immigration and Citizenship Consultants Act, Statutory Powers and Procedures Act, Meat Inspection Act (Ontario), R.S.O. 1990, c. M.5, Rules of Civil Procedure, rr. 13.02, 13.03(2), 15.01(2), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 1990 CanLII 6886 (ON CA), Foster v. West, 2021 ONCA 263, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, Jones v. Tsige, 2011 CanLII 99894 (ON CA), Daly v. Ontario Secondary School Teachers' Federation, 1999 CanLII 7319 (ON CA), Harper v. Harper (1979), 1979 CanLII 168 (SCC), Young v. Young 1993 CanLII 34 (SCC), GlycoBioSciences Inc. (Glyco) v. MAGNA Pharmaceuticals, Inc. (Magna), 2024 ONCA 760, GlycoBioSciences Inc. (Glyco) v. Industria Farmaceutica Andromaco, S.A., de C.V. (Andromaco), 2024 ONCA 481, Baldwin v. Imperial Metals Corporation, 2021 ONCA 114, Henry v. Zaitlen, 2023 ONCA 740

Facts:

The appellant appealed from the order of the Divisional Court dismissing his application challenging the Law Society of Ontario's ("LSO") restrictions on the permitted scope of practice for paralegals in immigration matters. Four organizations sought leave to intervene in the appeal as friends of the court: the Ontario Paralegal Association ("OPA"), the College of Immigration and Citizenship Consultants ("CICC"), the Canadian Immigration Lawyers Association ("CILA"), and the Canadian Paralegal Alliance ("CPA").

Issues:

Should the moving parties be granted leave to intervene in the appeal as friends of the Court?

Holding:

Motions by OPA, CILA, and CICC granted. CPA motion dismissed.

Reasoning:

Yes, for three of the four proposed intervenors.

The intervenor motions by OPA and CILA were unopposed. The Court held that while the OPA's position was aligned with the appellant, it provided a broader perspective distinct from the parties, as well as some additional balance because the appellant was self-represented. Further, the Court noted that the OPA was well positioned to advance its proposed arguments about concerns regarding the provision of immigration services to the public, and the potential consequences of limiting the scope of paralegal practice.

CILA submitted a draft of the factum that it would file if granted leave to intervene, a practice that, while not mandatory, was of considerable assistance to the Court on intervention motions and should be encouraged. CILA's submissions clearly focused on the statutory interpretation principle of the presumption of constitutionality, which CILA in turn applied to the interpretation of s. 91 of the Immigration and Refugee Protection Act (IRPA). The Court determined that this line of argument was distinct from those made by the parties and other proposed intervenors.

Overall, the Court was satisfied that OPA and CILA were specialized and could provide a unique perspective on the relevant issues, and therefore granted leave for both to intervene.

The LSO did not oppose CICC's proposed intervention. The appellant opposed, unless the CICC was exposed to costs, and he submitted that costs should be awarded against CICC for allegedly failing to disclose that lawyers and paralegals are exempt from the College of Immigration and Citizenship Consultants Act ("CICCA") regulation. The LSO submitted that the question of costs should be decided by the panel hearing the appeal.

The Court explained that intervenors are ordinarily neither awarded costs nor have costs awarded against them: Daly v. Ontario Secondary School Teachers' Federation, Young v. Young. The Court saw no reason to depart from this principle, holding that CICC identified itself as the federally established body created to govern and regulate immigration consultants, with a mandate of ensuring a consistent standard of competence from non-lawyers who seek to provide immigration consulting services. The Court did not find that CICC's submissions were misleading by omission and declined to award costs against CICC.

The Court found that CICC's proposed arguments were informed by its expertise and unique perspectives on the issues on appeal, and that it was well positioned to provide the Court with useful and distinct submissions about the risks of unlicensed and unqualified individuals providing unregulated immigration consulting services to vulnerable new or prospective Canadians.

In addition to seeking leave to intervene, the CPA sought leave under Rule 15.01(2) to be represented by one of its directors. The LSO opposed. Unfortunately, the CPA did not identify which of its four directors it sought to appoint as its litigation representative. In addition, the Court noted that the evidence filed by the CPA was sparse. The Court noted that the CPA did not appear to have a website, and search results for the "Canadian Paralegal Alliance" primarily revealed social media posts by the appellant. The LSO submitted that the CPA was a front for the appellant himself.

The Court held that it was curious that most of the information relevant to the CPA's requests for leave under Rule 15.01(2) and Rule 13.02 was found in the record that the appellant himself filed in response to the intervener motions.

The Court explained that granting leave to a non-lawyer to represent a corporation under r. 15.01(2) is discretionary and must be made having regard to all of the circumstances: (Glyco) v. MAGNA. In determining whether to grant leave to a non-lawyer to act as well as determining whether to grant intervenor status, the Court stated it must balance the risks and considerations that weigh against granting leave with any concerns that arise about access to justice. The Court explained further that a corporation's authorization of an individual to represent it is a necessary (but not sufficient) condition for an order under r. 15.01(2): (Glyco) v. Industria Farmaceutica. The Court held that there was no such authorization granted here.

The Court also found that the CPA did not adequately address whether the interests of shareholders, officers, directors, employees, creditors and other potential stakeholders were sufficiently protected by appointing one of its directors as its litigation representative.

Regardless, the Court stated that even if it had granted leave for one of the directors to represent the CPA, it dismissed the CPA's motion for leave to intervene in any event. The CPA did not provide sufficient evidence about its membership, mandate, expertise, or experience to satisfy the Court that it was likely to provide the Court with meaningful assistance on appeal.

The Court agreed with the LSO's concerns that granting the CPA leave to intervene would increase confusion by introducing arguments on irrelevant and peripheral issues. While the other proposed intervenors demonstrated a membership base and recognized commitment to advocacy, the Court found no information in the record about whether the CPA's membership extended beyond its four directors, one of whom was the appellant.

The Court was also concerned by the connection between the appellant and the CPA, which it found was apparent on the face of the materials and by the submissions made by the appellant on the CPA's behalf. The Court explained that a friend of the court serves the court, not the parties. The role connotes an element of impartiality or altruism: Baldwin v. Imperial Metals. In this respect, the Court cited its decision in Henry v. Zaitlen, in which counsel to one of the parties also sat on the executive committee of a legal organization that was granted leave to intervene in an appeal. In that case, however, the Court explained that there was no dispute that the organization was a well-recognized group who had often been granted intervenor status in previous cases. There was no suggestion of actual conflict, or evidence consistent with the organization being the appellant in disguise.

The Court found that the landscape was not as straightforward here. The CPA submitted that the appellant recused himself – yet he filed evidence and made submissions on its behalf. The Court held that this was not a case where "the strong presumption of professionalism" could be relied upon. Therefore, the Court concluded that the CPA's connection with the appellant undermined the appearance of impartiality needed to act as a friend of the court.

Iredale v. Dougall, 2025 ONCA 266

[Huscroft, Harvison Young and Copeland JJ.A.]

Counsel:

S. P. Kirby, for the appellant

D. A. Reid, for the respondent

Facts:

The parties were married for 24 years and separated in 2016. During the marriage, they developed an organic farming business on land owned by the respondent's parents, who gifted her the farm property and all shares in the family farming corporation, WMFERN Acres Inc. The appellant was not involved in or aware of this transfer. Both parties worked on the farm until separation, when the respondent retained ownership of the farm and leased it for income. At trial, the judge found unjust enrichment but concluded that a monetary remedy through equalization under the Family Law Act was sufficient. The appellant was awarded a time-limited spousal support order. The appellant appealed this decision, challenging the treatment of unjust enrichment, the spousal support duration, and the exclusion of post-trial appraisal evidence.

Issues:

Did the trial judge err in finding that equalization adequately addressed the respondent's unjust enrichment?
Did the trial judge err in awarding time-limited instead of indefinite spousal support?
Did the trial judge err in refusing to admit post-trial appraisal evidence?

Holding:

Appeal dismissed.

Reasoning:

1. No.

The trial judge properly concluded the appellant had established unjust enrichment based on significant contributions to the parties' farming business. However, the Court agreed that a monetary award—rather than a proprietary interest in the farm property—was appropriate. The trial judge reasonably found that the business had ceased operations, the appellant no longer had an interest in farming, and there was no evidence his efforts increased the land's value.

The Court upheld the decision to exclude the farm property from equalization, as it had been gifted solely to the respondent and the appellant had no beneficial ownership. The value of the matrimonial home was accounted for, and the equalization payment, along with a buyout of jointly owned assets, adequately compensated the appellant. The trial judge's decision not to apply a "value survived" or joint family venture approach was justified given that the business had ended and no ongoing value remained to divide. The Court found no error in law or principle and affirmed that the remedy granted was fair and supported by the evidence.

2. No.

The trial judge did not err in awarding time-limited spousal support to the appellant. The judge ordered support of $350 per month for five years, concluding that the appellant was not entitled to compensatory support. The trial judge found that the respondent had made greater economic sacrifices during the marriage and that the appellant had not given up any significant career opportunities for the benefit of the respondent.

The Court rejected the appellant's argument that the trial judge failed to consider his contributions or the "Rule of 65" under the Spousal Support Advisory Guidelines, which would suggest indefinite support. While the Rule of 65 was technically met, indefinite support is not mandatory, and the trial judge provided clear and sufficient reasons for limiting the duration. Both parties remained capable of earning income, and the appellant had already received a substantial equalization payment and buyout. The Court held that the support order reflected a fair balancing of the parties' circumstances and was entitled to deference.

3. No.

The trial judge did not err in refusing to admit fresh evidence in the form of a late appraisal of the matrimonial home. The appellant sought to introduce the appraisal nearly a year after judgment, arguing it showed a significantly higher value for the home. The trial judge dismissed the motion, finding the evidence had existed at all relevant times and could have been introduced at trial with reasonable diligence.

The Court agreed that the trial judge properly applied the legal test for admitting fresh evidence and exercised his discretion reasonably. There was no indication that the omission of the appraisal resulted in a miscarriage of justice, nor were there exceptional circumstances to justify re-opening the case. The trial judge's refusal to relax the due diligence requirement, even if the omission was attributable to counsel, was within his discretion and entitled to deference.

Essex (County) v. Enbridge Gas Inc., 2025 ONCA 268

[Trotter, Paciocco and Sossin JJ.A.]

Counsel:

A. Sternberg and J. Silver, for the appellant Enbridge Gas Inc.

D. M. Sundin and J. Stark, for the respondent the Corporation of the County of Essex

M. P. Tunley, for the respondent the Ontario Energy Board

Facts:

The appellant, Enbridge, has been delivering natural gas in the County of Essex pursuant to a 1957 franchise agreement (the "1957 Agreement") between its predecessor, Union Gas Company of Canada and the Corporation of the County of Essex ("Essex"). Enbridge was of the opinion that the 1957 Agreement expired as a result of the rule against perpetuities. The Ontario Energy Board (the "OEB") granted an application initiated by Enbridge pursuant to section 10(1) of the Municipal Franchises Act and ordered the renewal of the franchise agreement based on the terms of the Model Franchise Agreement (the "Model Agreement") that is now used for virtually all other gas pipelines in Ontario (the "Order"). Essex successfully appealed the Order to the Divisional Court. The Divisional Court found that the OEB committed an extricable error of law in finding that the 1957 Agreement had expired due to the rule against perpetuities, as it misapprehended the legal concept of a future contingent interest in property that triggers the rule.

Issues:

Did the Divisional Court err by permitting Essex to appeal a question of mixed fact and law?
Did the Divisional Court err in departing from Dawn-Euphemia?
Did the Divisional Court err by limiting the OEB's powers to regulate the terms of natural gas franchise agreements?

Holding:

Appeal dismissed.

Reasoning:

Pursuant to section 33 of the Ontario Energy Board Act, the right of appeal to the Divisional Court is limited to questions of law or jurisdiction, and that does not permit appeals on questions of mixed fact and law. In the Court's view, the Divisional Court correctly identified the OEB's error to be an error of law. The Divisional Court found that the OEB erred in identifying the nature of the interests that are subject to the rule against perpetuities. The OEB focused on the duration of the right rather than the time of its vesting. Accordingly, the Court found that the OEB misunderstood one of the elements of the legal test for a breach of the rule against perpetuities and failed to consider the actual element of the test that applied, resulting in an extricable error of law.

The Divisional Court found that the OEB proceeded on the misunderstanding that a term affecting the duration of enjoyment triggered the rule against perpetuities. The OEB relied upon a provision of the 1957 Agreement that addressed the duration of Enbridge's right instead of the vesting of that right, and accordingly, made an extricable legal error relating to the nature of the interest that is subject to the rule against perpetuities. The Court held that the Divisional Court correctly decided that the OEB misapprehended the requirements of the legal rule it was meant to apply. In addition to finding that the OEB erred, the Divisional Court declared that the rule against perpetuities did not apply in this case, instead of remitting the matter to the OEB to be resolved. Since the application of the rule against perpetuities was raised in the appeal proceedings and required no additional factual findings, the Court found that the Divisional Court did not err.

Enbridge argued that the Divisional Court had already found in Dawn-Euphemia (Township) v. Union Gas Ltd. ("Dawn-Euphemia") that a very similarly worded franchise agreement conferred a future contingent interest in land that offended the rule against perpetuities. The Divisional Court rejected that the OEB was required to follow the Dawn-Euphemia decision and noted that the reasoning in the decision on the vesting issue was "more cursory" than its decision that franchise rights are subject to the rule against perpetuities. Accordingly, the Court found no error in the Divisional Court's decision not to follow Dawn-Euphemia. Furthermore, the Court noted that even if the Divisional Court should have followed its own precedent in Dawn Euphemia, the Court of Appeal was not bound to do so.

The Court denied this ground of appeal. Pursuant to section 10 of the Municipal Franchises Act, the OEB does not have the power to impose a Model Franchise Agreement unless the existing agreement has or is about to lapse. Since the 1957 Agreement did not lapse, the OEB did not have the authority. Accordingly, the Divisional Court was able to point out the legal limits on the OEB power and was not wrongfully limiting its power to regulate. The Divisional Court did nothing more than enforce the limits of that power.

SHORT CIVIL DECISIONS

Botosh v. Soric, 2025 ONCA 256

[Roberts, Trotter and George JJ.A.]

Counsel:

M.B., acting in person

J. Martin and N. Nicola-Howorth, for the respondents, R.S. and R.S. Medicine Professional Corporation

S. Cavanaugh, for the respondents, M.K.K. and K.P.H.

C. Farahat, for the respondents, Belanger & Assoc. Investigations Inc.

Business Development Bank of Canada v. Neural Systems Inc., 2025 ONCA 262

[Lauwers, Nordheimer and Wilson JJ.A.]

Counsel:

J.W., acting in person

J. Potasky, for the respondent

Keywords: Contracts, Debtor-Creditor

40 Park Lane Circle v. Aiello Estate, 2025 ONCA 269

[Gilese, Gomery and Pomerance JJ.A.]

Counsel:

J. Weingarten, for the appellant

B. Sachdeva and M. Lightowler, for the respondent

Keywords:Contracts, Damages

Jarvis v. 1CM Inc., 2025 ONCA 271

[Lauwers, Nordheimer and Wilson JJ.A.]

Counsel:

A. Crawley and A. Grishanova, for the appellant

S. C. Nadler, for the respondent

Keywords: Corporations, Shareholders, Contracts, Options, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Ezomo v. Afriyie, 2025 ONCA 272

[Roberts, Trotter and George JJ.A.]

Counsel:

J. Dunphy, for the appellant

M. H. Patel, for the respondent

Keywords: Contracts, Real Property, Mortgages, Remedies, Power of Sale, Civil Procedure, Default Judgments, Setting Aside, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194

Affleck v. Sunrise Senior Living, Inc., 2025 ONCA 267

[Roberts, Paciocco and George JJ.A.]

Counsel:

M. A., acting in person

M. Kanani, for the respondents

Keywords: Torts, Defamation, Negligent Infliction of Nervous Shock

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 (April 7-11, 2025)

Contributor

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

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CIVIL DECISIONS

SHORT CIVIL DECISIONS

Litigation, Mediation & Arbitration

Contributor

Canada

Court Of Appeal Summaries (April 7-11, 2025)

Contributor

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

CIVIL DECISIONS

SHORT CIVIL DECISIONS

Litigation, Mediation & Arbitration

Contributor

Canada

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email