COURT OF APPEAL SUMMARIES (April 27-April 31)

By John Polyzogopoulos on May 2, 2026

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Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of April 27, 2026.

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In Chubb Insurance Company of Canada v. Zurich Insurance Company, the Court allowed an appeal. It held that the appeal judge erred in treating the two insurers as having equal priority under s. 268 of the Insurance Act, finding no legal basis for that approach in the statute, the Regulation, or case law. The Court reinstated the arbitrator’s award requiring Chubb to pay the full amount of benefits. It also held that Chubb’s failure to pay benefits as the first insurer to receive the claim and its failure to notify Zurich within 90 days as required by O. Reg. 283/95 justified the sanction of permanent liability.

In Tacora Resources Inc. v. 1128449 B.C. Ltd., the Court of Appeal allowed an appeal from the dismissal of an interpleader application under rule 43 of the Rules of Civil Procedure, in which Tacora Resources Inc. sought to deposit approximately $5.5 million in mining royalties into court after finding itself caught between competing factions — the former directors and the newly elected MILFAM Directors — each claiming authority to direct the receipt of royalty payments on behalf of Tacora’s contractual counterparty, 112, pending the resolution of a corporate governance dispute in the Grand Court of the Cayman Islands. The application judge made three errors. First, he misapprehended the “adverse claims” requirement under rule 43, since a real risk of competing claims suffices and Tacora’s predicament was the prototypical dilemma the interpleader rule is designed to address. Second, he erred by concluding that the Ontario lacked jurisdiction without conducting a Van Breda analysis, notwithstanding Tacora’s numerous connections to Ontario and the respondents’ attornment. Finally, the application judge erred by granting an interim order directing payment into a trust account on his own motion after dismissing the application. The Court set aside the interim order, directed that the royalties be paid into court pending final determination of the Cayman Court litigation, and awarded Tacora full indemnity costs.

In Debono v. JCD Property Ltd., 2026 ONCA 310, the Ontario Court of Appeal dismissed an appeal from an order of Myers J. striking the appellants’ statement of defence in an estate action brought against them by their brothers, the estate trustees of their late mother Carmen Debono’s estate. The dispute arose out of long-running family litigation concerning the appellants’ management of their mother’s residential leasing business before her death and alleged conversion of estate assets, which led to a January 2025 order requiring the appellants to produce email passwords for business accounts and prohibiting deletion of business emails.

In Clearview (Township) v. 12966344 Canada Inc., the Court granted a motion to stay proceedings pending an appeal of an order requiring the Moving Party to immediately issue a permit that would allow the responding parties to deposit fill on their property.

In Hussein v. Qazi, a dispute between former joint owners of a residential property held as tenants in common, the Court dismissed the appeal of an equitable vesting order under s. 100 of the Courts of Justice Act. This order transferred the appellant’s one percent interest to the respondent in exchange for compensation. The Court held that it had jurisdiction despite the $50,000 monetary threshold because it granted non-monetary relief. However, the appeal of the vesting order became moot once the order was registered on title, as any remaining dispute had to be resolved under the Land Titles Act. The Court declined to exercise its discretion to hear the moot appeal, found no error in the application judge’s compensation determination, and denied leave to appeal costs.

In Zimmerman v. McNaull, the Court held that an order adding parties as defendants in a medical malpractice action was interlocutory, because the motion judge’s findings on the limitation period were preliminary and made only for the purpose of determining the amendment motion. The responding parties were not precluded from raising a limitation period defence.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Chubb Insurance Company of Canada v. Zurich Insurance Company, 2026 ONCA 302

Keywords: Insurance, Priority Dispute, Arbitration, Permanent Liability & Payment of Benefits, Statutory Accident Benefits, Standard of Review, Insurance Act, R.S.O. 1990, C.I.8, ss. 268, Disputes Between Insurers, O. Reg. 283/95, ss. 1, 2, 3, 7, Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, O. Reg. 403/96, Arbitration Act, 1991, S.O. 1991, ss. 45, 49, Zurich Insurance v. Chubb Insurance, 2012 ONSC 6363, Zurich Insurance Co. v. Chubb Insurance Co. of Canada, 2014 ONCA 400, Zurich Insurance Co. v. Chubb Insurance Co. of Canada, 2015 SCC 19, Zurich Insurance Company v. Chubb Insurance Company, 2018 ONSC 1907, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Housen v. Nikolaisen, 2002 SCC 33, Travelers Insurance Company of Canada v. CAA Insurance Company, 2020 ONCA 382, Continental Casualty Company v. Chubb Insurance Company of Canada, 2022 ONCA 188, Kingsway General Insurance Company v. Ontario, 2007 ONCA 62, Kingsway General Insurance Co. v. West Wawanosh Insurance Co. (2002), 58 O.R. (3d) 251 (C.A.), Wawanesa Mutual Insurance Company v. Lombard Canada, 2010 ONCA 383, Lombard Canada Ltd. v. Royal & SunAlliance Insurance Co. (2008), 94 O.R. (3d) 62 (S.C.),

Tacora Resources Inc. v. 1128349 B.C. Ltd., 2026 ONCA 306

Keywords: Civil Procedure, Interpleader Applications, Preservation of Rights, Private International Law, Jurisdiction, Attornment, Business Organizations, Directors, Corporations, Corporation Governance, Costs, Rules of Civil Procedure, rr. 43, 43.01(1), 43.01(2), 43.02(1), 43.03(1)1, 43.04, 43.04(1)(a), 43.04(1)(b), 43.04(2), Savage v. First Canadian Financial Corp. (1996), 27 B.C.L.R. (3d) 21 (S.C.), 2823373 Ontario Inc. et. al. v. Dar et. al., 2024 ONSC 4313, Delahunty v. Dynacare Health Group Inc. (1997), 75 A.C.W.S. (3d) 621 (Ont. C.A.), Devry Smith Frank LLP v. Fingold, 2021 ONSC 2762, Canadian Imperial Bank of Commerce v. Costodian Inc. et al, 2018 ONSC 6680, The Toronto-Dominion Bank v. The Estate of Cheryl Anne Walker, 2021 ONSC 4092, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Van Damme v. Gelber, 2013 ONCA 388, leave to appeal refused, [2013] S.C.C.A. No. 342, 1476335 Ontario Inc. v. Frezza, 2021 ONCA 82, Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Aenos Food Services Inc. v. Tierney et al, 2026 ONSC 1478, Sobeski v. Mamo, 2012 ONCA 560, 112 O.R. (3d) 630

Debono v. JCD Property Ltd., 2026 ONCA 310

Keywords: Estates, Capacity, Civil Procedure, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 60.11, 60.12, Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 3, Falcon Lumber Limited v. 2480375 Ontario Inc., 2020 ONCA 310, Rimon v. CBC Dragon Inc., 2024 ONCA 128

Clearview (Township) v. 12966344 Canada Inc., 2026 ONCA 305

Keywords: Motions, Stay Pending Appeal, Municipal Law, Aeronautics, Permits, Rules of Civil Procedure, r. 63.02, Aeronautics Act, R.S.C. 1985, c. A-2, Municipal Act, 2001, S.O. 2001, c. 25, s. 444, s. 440, Provincial Offences Act, R.S.O. 1990, c. P.33, Part III, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385, Stuart Budd & Sons Limited v. IFS Vehicle Distributors, 2014 ONCA 546, Zafar v. Saiyid, 2017 ONCA 919, Farrell v. Kavanagh, 2021 ONCA 213, Nutrition Guidance Services Inc. v. Schwartz, 2024 ONCA 636, Belton v. Spencer, 2020 ONCA 623, Hermina Developments Inc. v. Epireon Capital Limited, 2025 ONCA 559, Morguard Residential v. Mandel, 2017 ONCA 177, Dickie v. Dickie, 2007 SCC 8, Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2014 ONCA 227, Transport Canada’s TP312 – Aerodrome Standards and Recommended Practices, 5^th Ed.

Hussein v. Qazi, 2026 ONCA 296

Keywords: Real Property, Partition and Sale, Civil Procedure, Appeals, Jurisdiction, Vesting Order, Procedural Fairness, Mootness, Partition Act, R.S.O. 1990, c. P.4, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 100, Land Titles Act, R.S.O. 1990, c. L.5, Newton v. Newton, 2014 ONSC 2757, Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.), Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2018 ONCA 253, Borowski v. Canada (Attorney-General), [1989] 1 S.C.R. 342, Tamil Co-Operative Homes Inc. v. Arulappah (2000), 49 O.R. (3d) 566 (C.A.), Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, Taylor v. Newfoundland and Labrador, 2026 SCC

Zimmerman v. McNaull, 2026 ONCA 307

Keywords: Interlocutory Order, Limitations, Medical Malpractice, Adding Parties, Jurisdiction, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b), Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, Lawrence v. International Brotherhood of Electrical Workers (IBEW) Local 773, 2017 ONCA 321, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 21(1), s. 5(1)(a), Morrison v. Barzo, 2018 ONCA 979, Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, Di Filippo v. Bank of Nova Scotia, 2024 ONCA 33, Arcari v. Dawson, 2016 ONCA 715, C & C Nestco Corporation v. Starr, 2025 ONCA 792, Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404

Short Civil Decisions

Lewis v. The Hertz Corporation, 2026 ONCA 309

Keywords: Civil Procedure, Summary Judgment, Wrongful Seizure, Property, Evidence, Allegations of Bias, Adequate Reasons, Corner Brook (City) v. Bailey, 2021 SCC 29, [2021] 2 S.C.R. 540, Sinclair-Cockburn Insurance Brokers Ltd. v. Richards (2002), 61 O.R. (3d) 105 (C.A.).

Blevins v. Lindsay, 2026 ONCA 299

Keywords: Family Law, Equalization of Net Family Property, Spousal Support, Date of Separation Analysis, Kassabian v. Marcarian, 2025 ONCA 239.

CIVIL DECISIONS

Chubb Insurance Company of Canada v. Zurich Insurance Company, 2026 ONCA 302

[Paciocco, Zarnett and Favreau JJ.A.]

Counsel:

E. Grossman and R. B. Greer, for the appellant

K. B.J. Schultz and C. MacDonald, for the respondent

facts:

On September 22, 2006, S.S. rented a vehicle from Wheels 4 Rent (“W4R”). The rental vehicle was insured under a motor vehicle liability policy issued by Zurich Insurance Company (“Zurich”). Chubb Insurance Company of Canada (“Chubb”) also issued a policy to W4R providing optional accidental death and dismemberment insurance. However, S.S. did not purchase Chubb’s optional coverage.

On September 23, 2006, S.S. was involved in a single-vehicle accident while driving the rental vehicle. She returned it to W4R damaged on September 25, 2006, without notifying the rental company. Later in the fall of 2006, S.S. began experiencing back, shoulder, and arm pain. She was unaware that Zurich was the insurer, but remembered seeing a reference to Chubb insurance at the W4R location. She retained a lawyer to assist her.

On November 9, 2006, S.S.’s lawyer submitted an application for accident benefits to Chubb. By letter dated November 21, 2006, Chubb denied the application, stating its policy was not a personal automobile policy and statutory accident benefits coverage did not apply. Chubb made no effort to identify or notify the insurer responsible for coverage.

Over a year and a half later, by correspondence dated May 28, 2008, Chubb advised S.S.’s lawyer that Zurich was W4R’s automobile insurer. Once Zurich became aware of the claim, it agreed to adjust it on a without-prejudice basis pending the outcome of its priority dispute with Chubb. It also initiated a priority dispute against Chubb.

First Arbitration

The parties submitted their dispute to a first arbitration. The first arbitrator found that Chubb was not an insurer under s. 268 of the Insurance Act. On appeal, the Superior Court found that Chubb was an insurer. The matter then proceeded through the courts. Ultimately, the Supreme Court of Canada determined that Chubb was an insurer for the purpose of s. 2 of the Disputes Between Insurers regulation, O. Reg. 283/95 (the “Regulation”).

After the Supreme Court’s 2015 decision, Chubb took over benefit payments from Zurich. By then, S.S. had become catastrophically impaired. Chubb ultimately reached a full settlement with S.S.

Second Arbitration

The parties proceeded to a second arbitration to determine whether Chubb complied with its obligations under the Regulation and, if any, the amounts it owed Zurich. Zurich sought reimbursement of $998,386.99 in benefits paid to S.S. Chubb sought $1,537,229.04 for amounts paid since the Supreme Court’s decision.

The second arbitrator found that Chubb did not comply with its obligations under ss. 2 and 3 of the Regulation. He concluded Zurich had no notice of S.S.’s claim before 2008. Had Chubb met its obligations, it could easily have determined that Zurich was the responsible insurer and given notice. The arbitrator decided Chubb should be sanctioned for its failures and required it to reimburse Zurich $998,368.99 plus arbitration costs.

Appeal Judge’s Decision

Chubb appealed the second arbitrator’s decision to the Superior Court. The appeal judge allowed the appeal and held that Chubb breached its obligations under ss. 2 and 3 of the Regulation, thereby creating a permanent obligation to pay benefits to S.S. However, the judge held that Chubb’s breach did not relieve Zurich of its statutory obligation under s. 268(3) of the Insurance Act. He treated Chubb and Zurich as insurers of equal priority and held that they should share responsibility for paying benefits to S.S. As a sanction, the judge directed each insurer to pay 2% compound interest for the delay it caused.

Zurich appealed the appeal judge’s decision.

issues:

Did the appeal judge err in his analysis of the relationship between ss. 2 and 3 of the Regulation and s. 268 of the Insurance Act?
Did the appeal judge err in finding that both insurers should be treated as having equal priority and should thereby each pay half of the benefits owed to S.S?

holding:

Appeal allowed.

reasoning:

The Court held that the appeal judge erred in interpreting ss. 2 and 3 of the Regulation and their relationship to s. 268 of the Insurance Act. The appeal judge first stated that a breach of s. 3 of the Regulation automatically required Chubb to pay benefits permanently. The Court found this inconsistent with case law. The Court noted that, while there may be good reason to impose an inflexible rule, even where an insurer breached s. 3 of the Regulation, the arbitrator retained discretion to decide whether the appropriate remedy was to require the first insurer who received a claim to pay benefits permanently. This applied even if that insurer was not the priority insurer or an insurer at all under s. 268 of the Insurance Act.

The appeal judge then, somewhat inconsistently, treated Chubb and Zurich as having equal priority under s. 268 of the Insurance Act. In effect, the appeal judge approached the matter on the basis that the consequences for a breach of ss. 2 and 3 of the Regulation were limited by a further consideration: the insurer who would have been liable if ss. 2 and 3 had not been breached must retain some liability. The Court found no basis for this approach in case law, nor was it provided for in the Insurance Act or the Regulation. Notably, the list of insurers in s. 268 did not include insurers found to have breached ss. 2 and 3 of the Regulation. Instead, the Regulation and common law governed the consequences of such a breach. The Supreme Court found that Chubb was an insurer for the purpose of s. 2 of the Regulation.

But contrary to the appeal judge’s approach, this did not convert Chubb into an insurer of equal priority with Zurich under s. 268(2) of the Insurance Act. Nor did Zurich’s status as the entity that would have been the priority insurer had Chubb not breached ss. 2 and 3 of the Regulation limit the consequences imposed on Chubb for its breach. Rather, as held in Kingsway #2, Wawanesa, and Lombard, once it was determined that Chubb breached its obligations under ss. 2 and 3 of the Regulation, the next step was to determine the appropriate remedy considering the effects of the breach in accordance with this Court’s jurisprudence.

2. Yes

The Court held that the appeal judge erred in finding that Zurich and Chubb should have equal priority under s. 268 of the Insurance Act to determine the appropriate remedy for Chubb’s breaches of ss. 2 and 3 of the Regulation. The appeal judge held that Zurich and Chubb should pay equal amounts for S.S.’s benefits, but treat their responsibility for 2% compound interest differently based on the length of delay each caused. The Court found no legal basis for this approach.

The Court saw no error in the second arbitrator’s conclusion that Chubb should be required to permanently pay S.S.’s benefits. The second arbitrator made no error of law in identifying the legal principles he was required to apply, nor any palpable and overriding error of fact or mixed fact and law, and he exercised his discretion reasonably. The second arbitrator had reviewed the relevant authorities and explicitly recognized that a failure to provide notice under s. 3 of the Regulation did not automatically require the breaching insurer to pay benefits permanently. Then it turned to the question of what the consequence of the breach should be, given the facts of the case. He stated that “there must be a reasonable investigation to determine whether another insurer should be liable, and here there wasn’t.” The second arbitrator relied heavily on Lombard and concluded that Chubb should be required to pay S.S.’s benefits permanently due to its breaches of ss. 2 and 3.

The Court further observed that when Chubb received the claim, it refused to pay and made no effort to identify Zurich as an insurer. Since Chubb had a relationship with W4R, it would have been easy to identify Zurich as the correct insurer and notify them. Instead, Chubb waited a year and a half to provide this information to S.S., by which time she was left without benefits, and her condition had seriously worsened. The delay also prevented Zurich from promptly investigating and adjusting the claim. The Court noted that s. 2 of the Regulation was designed to prevent the harm S.S. experienced by ensuring disputes between insurers do not delay claim payments to injured people. Section 3 was designed to prevent prejudice arising from Chubb’s delay in notifying Zurich. Given these circumstances, the second arbitrator made no errors in requiring Chubb to pay the full amount of benefits owed to S.S. permanently.

Tacora Resources Inc. v. 1128349 B.C. Ltd., 2026 ONCA 306

[George, Copeland and Gomery JJ.A.]

Counsel:

R. W. Staley, N. J. Shaheen and M. Bennett, for the appellants

K. O’Brien and T. Kljakic, for the respondent, Tacora Resources Inc.

C. St. Roch Seviour, K.C. and G. John Samms, for the respondent, 1128349 B.C. Ltd.

facts:

This was an appeal from the dismissal of an interpleader application under rule 43 of the Rules of Civil Procedure. Tacora Resources Inc. (“Tacora”), an Ontario corporation, operates the Scully Mine in Newfoundland under a mining lease with 1128349 B.C. Ltd. (“112”), a British Columbia company wholly owned by Scully Royalty Inc. (“Scully”), which is incorporated in the Cayman Islands. Under the mining lease, Tacora must pay quarterly royalties to 112.

On November 10, 2025, Scully filed notice that its annual general meeting would be held on December 27, 2025 in Hong Kong. Several weeks later, MILFAM LLC (“MILFAM”) delivered notice nominating a slate of candidates for election to Scully’s board of directors at the AGM. After Scully’s board challenged the timeliness of the nomination notice, MILFAM sought a declaration from the Grand Court of the Cayman Islands that the notice’s delivery conformed with Scully’s articles of association. The Cayman Court granted MILFAM’s requested relief. Scully served a notice of appeal but did not seek a stay. When Scully issued a press release purporting to postpone the AGM, MILFAM argued that the company’s articles did not permit postponement and proceeded with the AGM as scheduled. The appellants (MILFAM and candidates from its slate) asserted that at the AGM, MILFAM’s nominated slate (the “MILFAM Directors”) were properly elected as Scully’s directors, replacing former directors SM and MS, among others. After the AGM, the MILFAM Directors purported to terminate SM and MS as officers of Scully and officers/directors of its subsidiaries, including 112, and to appoint SW as President of Scully and 112. SM and MS refused to recognize the AGM result and purported to continue directing Scully and 112. On January 5, 2026, MILFAM sought further declarations from the Cayman Court that the MILFAM Directors were properly elected. This litigation continues, with a trial set for late May 2026.

Tacora’s final quarterly royalty payment to 112 for 2025 was due on January 25, 2026. On December 13, 2025, SM emailed Tacora executives providing updated bank information for 112 for all future royalty payments. Though SM later explained this change, he refused to disclose the financial institution associated with the new account. On January 22, 2026, SM wrote again to Tacora stating that the Cayman Court litigation did not alter Tacora’s payment obligations, that the royalty remained due on January 25, 2026, and that failure to pay in full and on time would result in immediate default under the mining lease. After Tacora failed to pay by the deadline, 112’s lawyers, Stewart McKelvey, served Tacora with a Notice of Default. On February 4, 2026, the MILFAM Directors’ counsel, Bennett Jones, responded to the default notice, arguing that SM and other former board members lacked authority to make any demand or issue any Notice of Default on 112’s behalf, and requesting that Tacora not remit any funds per the former board’s instructions. Recognising Tacora’s difficult position, Bennett Jones proposed that the royalty be paid into escrow or that Tacora apply for interpleader relief, pending the outcome of the Cayman Court litigation. Stewart McKelvey, again supposedly on 112’s behalf, subsequently expressed opposition to both options.

On February 11, 2026, Tacora applied for urgent interpleader relief in the Ontario Superior Court, seeking to deposit approximately $5.5 million in royalties into court and a declaration extinguishing its liability regarding the funds. The application judge dismissed the application, holding that the royalty payment was not subject to adverse claims as required under r. 43, and commenting that only one contractual creditor existed, which took the application outside the rule’s scope. He further held that the Ontario lacked jurisdiction, since in his view the central issue of who had authority to receive funds on 112’s behalf could only be litigated elsewhere. Despite dismissing the application, the application judge directed Tacora to pay the royalty into Stewart McKelvey’s trust account, with a 90-day sunset provision, to afford Tacora time to bring an interpleader application in another forum. MILFAM and the MILFAM directors appealed, and Tacora concurred with their position.

issues:

Did the application judge err by misapprehending the “adverse claims” criteria for an interpleader order under r.43?
Did the application judge err in concluding that the Ontario Superior Court lacked jurisdiction to grant Tacora’s interpleader application?
Having dismissed the application, did the application judge err by granting an interim order directing Tacora to pay the mining royalties into trust for 112 with Stewart McKelvey?

holding:

Appeal allowed.

reasoning:

Yes. The Court explained that rule 43 addresses the preservation of rights in pending litigation, with interpleader proceedings intended to assist those who seek to discharge their legal obligations but are unsure which competing entity should receive required payments. Rule 43.02(1) provides that interpleader relief may be sought where at least two persons have made adverse claims to property. Notably, the jurisprudence clarifies that the applicant need not prove that formally articulated competing claims have been filed – a real risk of competing claims suffices. The Court thus held that the application judge misapprehended the adverse claims law and concluded that Tacora was entitled to interpleader relief. Tacora’s situation was the prototypical dilemma the interpleader rule is meant to address, since Tacora was caught between the old directors’ and the MILFAM Directors, each vying to direct 112’s receipt of Tacora’s royalties. There was no principled reason why this would not constitute “adverse claims”, especially given analogous cases indicating that such claims may arise where there is a dispute over who has power to give instructions on behalf of a corporation entitled to payment from an uninterested third party. The application judge erroneously relied on a non-dispositive decision that was not advanced by any party. Pending resolution of the corporate governance dispute in the Cayman Court, Tacora faced legal jeopardy whether it paid either group or did not pay at all, and it had indicated willingness to fulfill the lease terms by depositing the royalties in its counsel’s trust account. Thus, Tacora was an innocent third-party debtor entitled to r. 43 relief.
Yes. No jurisdictional impediment existed. Without undertaking a Van Breda analysis, the application judge concluded that he lacked jurisdiction since the underlying disputes about control over Scully and authority to receive funds on 112’s behalf would be decided by foreign courts. This was a misapprehension of r. 43’s nature and purpose. The Court noted Tacora’s numerous connections to Ontario and reiterated that no respondent had contended that a more appropriate forum existed. 112 and the appellants clearly attorned by responding to the application on its merits, and connections to other jurisdictions did not negate Ontario’s jurisdiction. Moreover, r. 43 did not suggest the rule’s inapplicability where underlying issues will be resolved elsewhere. Interpleader orders do not resolve underlying disputes, but instead simply allow uninterested persons in control of disputed property to extricate themselves and avoid potential liability. While r. 43.04(2) permits courts to make orders that may partially resolve the underlying property dispute, the Rules do not require such orders and Tacora did not seek any.
Yes. The Court set aside the interim order at the request of all parties, holding that the application judge should not have ordered interim relief since the application issues had been finally determined. Moreover, the application judge was not entitled on his own motion to a devise a remedy not requested by any party. The rationale for the interim order was also questionable. The Court ultimately awarded Tacora full indemnity costs, declined costs against SM personally, and directed that Tacora’s royalties be paid into court pending final determination of the Cayman Court litigation.

Debono v. JCD Property Ltd., 2026 ONCA 310

[van Rensburg, Miller and Coroza JJ.A.]

Counsel:

S. F. Toole, for the appellants

I. M. Hull and D. Lok Yin So, for the respondents

facts:

The appellants D.D. and E.M. and the respondents J.D. and G.D., are four of the six children of C.D. who passed away on March 30, 2022. Prior to C. D’s death, the appellants had been working for most of their adult lives as employees of the residential leasing business owned by their mother and late father. Their sister J.N. also worked in the business part-time between 2018 and 2020.

In March 2019, the respondents commenced proceedings to challenge the appellants’ appointment as substitute decision-makers for C.D. In the course of the Capacity Proceedings, the respondents obtained a number of orders requiring production of financial records and other documents and an informal accounting. Counsel was also appointed to represent C. D’s interests.

Upon C.D’s death, the respondents were appointed estate trustees of C.D’s estate (the “Estate”) pursuant to her wills. In this capacity, they became the sole directors and officers of the Estate corporations. The respondents required information and documents from the appellants and J.N. to enable them to run the business and administer the Estate. In an endorsement Dietrich J. noted that the production orders that had been made by Gilmore J. in the Capacity Proceedings, which had been stayed as a result of C.D’s death, did not extend to the additional information and documentation requested by the respondents. Soon after taking over the business, the respondents terminated the appellants’ employment. In November 2022, the appellants commenced an action alleging wrongful dismissal. In 2023, the respondents commenced an action against the appellants and J.N., for damages for conversion of money and assets of the business and other relief.

The January 2025 Order

In January 2025, the motion judge heard competing motions brought by the parties. The respondents brought a motion in the Estate Action for a determination of the effect of an in terrorem clause in Carmen’s will, and for production of documents by the appellants and J.N. The appellants brought a motion in the Employment Action that the Estate pay their legal fees in both actions, and for an interim advance of their share of the Estate.

The motion judge made a number of findings in his January 22, 2025 endorsement (the “January 2025 Endorsement”. Among other things, he rejected the appellants’ evidence that they had no Estate property and none of the business’s records, and he found that the appellants had failed to comply with orders for production of similar documents in the Capacity Proceeding.

The March 2025 Case Conference

On March 19, 2025, the respondents served a motion record seeking an order under r. 60.12 to strike the statement of defence of the appellants and J.N. in the Estate Action and the statement of claim of the appellants in the Employment Action, and under r. 60.11 for an order finding the appellants and J.N. in contempt of the January 2025 Order. In his endorsement the motion judge noted that the respondents’ evidence was that the business email account contained no emails from before the death of C.D.; that there had been 35 deletions from the account after the date of the January 2025 Order; and that the appellants had declined to produce the passwords for other email accounts in which they appeared to have received and sent business emails. The appellants’ counsel advised that he understood that the 35 deletions were all related to lawyer-client privilege as permitted by the January 2025 Order.

The July 2025 Order

The motion was heard on June 27, 2025. At the hearing, the respondents advised that they no longer sought an order striking J. N’s statement of defence in the Estate Action. The motion judge refused to hold the appellants in contempt and refused to strike their pleadings in the Employment Action. He concluded that the appropriate sanction for the appellants’ breach of the January 2025 Order was to strike their statement of defence in the Estate Action.

issue:

Did the motion judge err in the striking of the statement of defence in the Estate Action?

holding:

Appeal dismissed.

reasoning:

No. The motion judge did not err in the striking of the statement of defence in the Estate Action. The Court saw no error in the motion judge’s decision to strike the appellants’ statement of defence. The Court outlined that the order was warranted as a result of the repeated and continuous defaults by the appellants. The motion judge considered the relevant factors set out in Falcon Lumber Limited v. 2480375 Ontario Inc., 2020 ONCA 310, with respect to striking pleadings due to a party’s failure to produce documents.

The Court noted that the motion judge concluded that this was an extreme case that met every one of the concerns or factors in Falcon Lumber. He noted that the Estate Action was the continuation of the Capacity Proceedings; that the appellants and J.N. had ignored multiple orders and “made clear their refusal to disclose what they did with their mother’s money”; that they had been told in the January 2025 Endorsement and the March 2025 Endorsement what they were required to do, and had been afforded time to comply; and that, while he did not believe all documents were gone, he was satisfied that if the appellants had some documents, they would not produce them. The Court underscored that a motion judge’s decision to strike pleadings is entitled to deference on appeal when exercised on proper principles: The Court outlined that as the motion judge observed, it was not fair or reasonable for them to defend the claims against them, while they were the ones who precluded a fair and proper accounting.

Clearview (Township) v. 12966344 Canada Inc., 2026 ONCA 305

[Miller J.A. (Motion Judge)]

Counsel:

E. Wargel, for the appellant/moving party

C. Carter, for the respondents/responding parties

facts:

The respondents, 12966344 Canada Inc. (“129 Canada”) and A.W. owned property in the Township of Clearview (the “Township”) zoned as airport industrial.129 Canada sought to build a noise and privacy berm to shield it from the fill operation at the neighbouring Edenvale Aerodrome (“Edenvale”). A.W. submitted a Fill and Grading Permit Application, and between December 2024 and March 2025, the Township provided comments to address before the permit could issue. 129 Canada provided an aviation safety report and amended engineering drawings demonstrating the proposed berm would not interfere with flight patterns but thereafter abandoned its efforts to obtain a fill permit.

In late August 2025, the Township observed fill being deposited on the Property without a permit, issued a Stop Work Order, and laid charges against A.W. for 129 Canada’s contravention of the By-Law of Part III of the Provincial Offences Act. The Township also commenced an application seeking an order restraining the responding parties from depositing fill on the Property. The responding parties brought a separate application seeking a declaration that the By-Law was invalid, or an order requiring the Township to issue a fill permit.

The application judge granted 129 Canada’s application and ordered the Township to issue the fill permit forthwith, holding that the Township’s requirement that 129 Canada verify the Obstacle Limitation Surfaces (“OLS”) Guidelines used by Edenvale was ultra vires because aeronautics fell within the sole purview of the federal government. Following the order, the Township advised the responding parties it intended to appeal but was prepared to issue the permit if the outstanding requirements were satisfied. The responding parties took the position that the permit should have been issued forthwith in accordance with the application judge’s order.

issue:

Should the motion for the Township’s stay pending appeal be granted?

holding:

Motion granted.

reasoning:

Yes. The Court applied the test from RJR-MacDonald Inc. v. Canada (Attorney General) which required them to make three inquiries.

A preliminary assessment of the merits of the appeal, to determine whether the appeal raises a serious question

The issues raised by the Township were neither frivolous nor vexatious. To the extent that the application judge reasoned that the Township cannot consider whether the placement of a berm on non-federally regulated land might create a risk to aircraft operations because aeronautics is a matter of federal jurisdiction, that conclusion is certainly open to question. The other issues on appeal, like whether the court could order that a permit issue without the provision of security, are arguable.

A determination of whether the moving party would suffer irreparable harm if the order were refused

The main harm identified by the moving party was that in issuing a permit where valid requirements have not been satisfied, it would be “compelled” to act in a manner inconsistent with its own by-law. Additionally, it submitted that the responding parties’ fill operations to date have caused damage to Township infrastructure, and continuing the operation without complying with outstanding requirements under the By-Law would threaten further permanent damage.

Additionally, were a stay refused, and the Township required to forthwith issue the fill permit to 129 Canada, the Township’s appeal would become moot. The appeal becoming moot was sufficient to constitute irreparable harm.

A determination of which of the parties would suffer greater harm from granting or refusing the stay pending a decision on the merits of the appeal

Appreciating the real hardships in their record, the evidence did not establish that harm to the responding parties was irreparable. The responding parties attested to the risk of losing the Property but had not tendered evidence showing why an award of monetary damages would not be a sufficient remedy. There was no evidence in the record of any unique or distinctive characteristics of the Property that would make a damages award insufficient.

The “Clean Hands” doctrine

The Court considered the actions taken by the Township and were not persuaded that they behaved in a manner that disentitled it to seek relief. This was particularly the case given that some of the Townships questionable actions were in response to 129 Canada’s illegal dumping. The Court also order that this appeal be expedited.

Hussein v. Qazi, 2026 ONCA 296

[Paciocco, Copeland and Dawe JJ.A.]

Counsel:

S. R. Jackson and A. C. Johnson, for the appellant

A. Monadjem and O. Y. Enbar, for the respondent

facts:

M.H. and S.J.Q. jointly purchased a residential property in Mississauga as tenants in common. S.J.Q. contributed the initial capital and received a 99 percent interest, while M.H. agreed to contribute to housing costs through “sweat equity” and by paying a share of the carrying costs, including a share of the monthly mortgage payments. In return, M.H. received a one percent interest in the property as well as the right to 50 percent of the increase in the property’s value after contributing for five years. The relationship soon failed, and M.H. moved out and stopped paying, but not before contributing a meaningful amount to housing costs.

S.J.Q. brought an application seeking an order under the Partition Act that would direct M.H. to sell his one percent interest to her at a value determined by the court, and also sought payment of amounts M.H. had failed to pay pursuant to their agreement.

The application judge determined that the Partition Act did not authorize a buy-out order, only an order of partition and sale. After S.J.Q.’s counsel produced the authority of Newton v. Newton at the hearing, the judge made an equitable vesting order under s. 100 of the Courts of Justice Act. Although this relief had not been pleaded and the suggestion of an equitable vesting order had not been raised before the hearing, the judge engaged in two exchanges with M.H. before making the order. In these, he communicated that he did not disagree with transferring his one percent interest if he was compensated fairly.

M.H. claimed to be owed $65,976.19. The application judge determined his compensation to be $16,357.61. She calculated this by quantifying his share of the home’s equity ($2,500) and his contributions ($33,816.91 plus $5,122.53), then subtracting funds S.J.Q. had to contribute after M.H. stopped making payments ($25,081.83). She therefore made the vesting order and ordered that M.H. be paid $16,357.61.

Without an application for a stay of proceedings pending appeal, S.J.Q. registered the vesting order with the Land Registry Office on October 22, 2025, becoming the sole owner of the property. It was acknowledged that S.J.Q. acted knowing an appeal was pending and that M.H. was working to perfect a motion for a stay pending appeal.

issues:

Did this court have jurisdiction to hear the appeal notwithstanding the $50,000 monetary threshold under the Courts of Justice Act?
Is the appeal of the vesting order moot in light of the registration of the vesting order on title under the Land Titles Act?
If the appeal is moot, should the court nonetheless exercise its discretion to hear the appeal in accordance with Borowski v. Canada (Attorney General)?
Did the application judge err in granting the vesting order based on an inapplicable precedent and a misapprehension of the appellant’s position, following an unfair hearing in which he was not afforded a meaningful opportunity to respond?
Did the application judge err in declaring the value of the property in the absence of an adequate evidentiary record?
Did the application judge err in awarding costs without proper regard to the applicable legal principles and in a procedurally unfair manner?

holding:

Appeal dismissed.

reasoning:

Yes. The court did not agree with S.J.Q.’s submission that it lacked jurisdiction because the amount at stake was below the $50,000 monetary floor in the Courts of Justice Act. If an order grants non-monetary relief, as the order under appeal did, an appeal lies to the Court of Appeal even when the monetary payment falls below that floor: Hanisch v McKean,at paras. 12-13, 19-31.
Yes. Once a vesting order is registered on title, the change in title has been effected and the appeal rights are spent, such that disputes respecting the registered title must be resolved under the rubric and within the scheme of the Land Titles Act. H. did not seek relief under the Land Titles Act before the court. Since the court could not grant the relief requested relating to the vesting order, on its face the appeal of the vesting order was moot: Regal Constellation, at paras. 33, 39. The appellant nonetheless asks the Court, in substance, to exercise our discretion, recognized in Borowski v. Canada (Attorney-General) to rule on the issues.
No. It is exceptional for the court to hear moot issues in an appeal. The onus lies with the party seeking a determination on the merits to show why the court should depart from its usual practice: Tamil Co-Operative Homes Inc. v. Arulappah (2000), at para. 17. The court is guided by factors such as the presence of an ongoing adversarial context, concerns for judicial economy, and the need to be sensitive to its proper adjudicative role: Doucet-Boudreau v. Nova Scotia (Minister of Education), at para. 18. While the court agreed there was unfairness in registering a judicial vesting order knowing that M.H. was seeking to exercise his right of appeal and was taking steps to stay the vesting order, that unfairness did not provide a basis for adjudicating an issue that must now be resolved using the Land Titles Act. However, it was a matter that could affect the costs award on appeal. The court could consider M.H.’s appeal relating to the fairness of the compensation without hearing a moot appeal of the vesting order. This was not the kind of moot issue where expending scarce judicial resources to consider its merits was justified. The issues relating to the vesting order were not matters of public interest. Indeed, the public interest is often best served by finality in matters arising from domestic relationships.
The court declined to address the merits of this ground. It was not in the interests of justice or judicial economy to rule to facilitate a possible Land Titles Act application or to adjourn the appeal to accommodate such an application. There was no realistic suggestion that substantive injustice would occur if rectification of title was not made. On its face, the outcome was fair. S.J.Q., who now had title to the entire property, previously owned a 99 percent interest, provided the entire initial substantial sum to fund its acquisition, and assumed responsibility for ongoing carrying costs. Joint ownership had been agreed upon to provide a joint residence, but that relationship was over. M.H. agreed with the application judge during the hearing to the very order he now impugned. As long as he was fairly compensated for his interest and contributions, he was not in a position to challenge the fairness of a vesting order. The court added that it should not be understood as endorsing the application judge’s decision relating to the use of s. 100 of the Courts of Justice Act to make a vesting order.
No. The court was not persuaded that the application judge lacked sufficient evidence to determine fair compensation or erred in her determination.
No. No basis had been identified for granting leave to appeal the application judge’s costs award, and leave to appeal costs was therefore denied.

Zimmerman v. McNaull, 2026 ONCA 307

[Roberts, Favreau and Rahman JJ.A.]

Counsel:

T.A. Pagliaroli and C. Carr, for the moving parties

M.P. Sammon and D. Knoke, for the responding parties, Dr. A.L. and Dr. D.L.

facts:

The moving parties commenced an action for medical malpractice against the defendants for their alleged negligent care of D.Z. and obtained an order adding the responding parties as defendants. The motion judge accepted that the claim was only discovered on June 20, 2018, and could not have been discovered earlier, while the responding parties argued the claim was discoverable against them in April 2018. The responding parties appealed the order, and the moving parties sought to quash the appeal, arguing the order was interlocutory and that the appeal lay to the Divisional Court with leave. The responding parties maintained the order was final because the motion judge finally determined and thus precluded their substantive limitation period defence, on which they said they could no longer rely.

issue:

Did the motion judge finally determine the limitation period issue and preclude the defence?

holding:

Appeal dismissed.

reasoning:

No. When the motion judge’s reasons were read as a whole, and especially alongside the issued and entered order, it became clear that his factual findings were preliminary and only for the purpose of determining the amendment motion. In his reasons, the motion judge followed the analytical framework in Morrison and found that the moving parties had met the requisite evidentiary threshold to demonstrate that the limitation period had not expired for the purpose of adding the responding parties as defendants to their action. Importantly, he did not accede to the moving parties’ request that the responding parties be precluded from relying on a limitation period defence.

Further, the issued and entered order confirmed that there was no final determination of the limitation period issue nor that the responding parties’ limitation period defence was precluded. It is well established that an appeal lies from the order and not the reasons and that in most cases, it is the content of the formal order that is integral in determining what has been decided and is binding against a party, which was the case here.

With respect to the amendment, the order did not explicitly state that the limitation period defence was precluded. The Court believed it would have been better had the order included an explicit term to that effect but was nevertheless satisfied that the responding parties were at liberty to plead and rely upon a limitation period defence. The order under appeal was therefore interlocutory, and the appeal lay to the Divisional Court.

SHORT CIVIL DECISIONS

Lewis v. The Hertz Corporation, 2026 ONCA 309

[George, Copeland and Gomery JJ.A.]

Counsel:

OL, acting in person

K. Byers, for the respondents, The Hertz Corporation, Hertz Canada Limited and Hertz Canada Vehicles Partnership

A. Butt, for the respondent, TD Canada Trust

Blevins v. Lindsay, 2026 ONCA 299

[George, Copeland and Gomery JJ.A.]

Counsel:

S. Harvey, for the appellant

J. Bennett, for the respondent

Keywords: Family Law, Equalization of Net Family Property, Spousal Support, Date of Separation Analysis, Kassabian v. Marcarian, 2025 ONCA 239.

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

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John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email