In Maillet v. Deren, a dog-bite case, the Court dismissed the appeal from an order denying the appellant/defendant leave to issue a third party claim against the respondent plaintiff’s mother. The Court upheld the motion judge’s determination that leave should be denied because the proposed claim lacked merit (there was discovery evidence to confirm this), the delay in bringing it was unexplained, and allowing it would cause prejudice, particularly in a case involving a minor and proceeding under the simplified rules.

Li v. Barber is a case related to the Freedom Convoy. The Appellants appealed an order dismissing their motion to dismiss a claim against them under the anti-SLAAP provisions of s. 137.1 of the CJA. The Court dismissed the appeal, finding that the motion judge did not err when determining that the Respondents had demonstrated that their claim had substantial merit and that the Appellants had no valid defence. Furthermore, the Court found that the motion judge had undertaken a meaningful weighing exercise between the different aspects of the public interests at play.

Benchwood Builders, Inc. v. Prescott was another anti-SLAPP case. A construction company commenced a defamation lawsuit after homeowners made comments online about their experience with the company following a home renovation gone wrong. The motion judge dismissed the defamation action on anti-SLAPP grounds, finding the homeowners’ comments pertained to a matter of public interest. The Court of Appeal disagreed and allowed the appeal.

In Tsarynny v. Topchiy, the Court dismissed the appeal from an order setting aside the parties’ separation agreement due to the appellant’s failure to disclose information about a significant asset. The Court also upheld the finding on the separation date, rejecting the appellant’s argument that they had separated earlier.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Maillet v. Deren, 2025 ONCA 159

Keywords: Torts, Negligence, Civil Procedure, Pleadings, Third Party Claims, Leave to Commence, Extension of Time, Rules of Civil Procedure r. 21(1)(b), r. 29.02(1.2), Family Delicatessen Ltd v. London (City), 2006 CanLII 5135 (Ont. C.A.), Tadiem Inc. v. Allied Properties Management LP, 2018 ONSC 7676, Transpharm Canada Inc. v. MS Partners LLP, 2018 ONSC 375, Bell Canada v. Olympia & York Developments Ltd. (1988), 26 C.P.C. (2d) 113 (Ont. H.C.), Waterloo County Board of Education v. Mark, Musselman, McIntyre, Coombe et al.; J.T. Donald & Co. Ltd. et al. (Third Parties) (1982), 38 O.R. (2d) 61 (H.C.), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Royal Canadian Mortgage Investment Corporation v. 1835923 Ontario Ltd., 2020 ONCA 45, Arnold v. Teno, [1978] 2 S.C.R. 287

Li v. Barber, 2025 ONCA 169

Keywords: Torts, Nuisance, Concerted Action Liability, Civil Procedure, Class Proceedings, Anti-SLAPP, Canadian Charter of Rights and Freedoms, Class Proceedings Act, 1992, S.O. 1992, c. 6, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 137.1, 137.2-137.5 Emergencies Act, R.S.C. 1985, c. 22 (4th Supp.), Highway Traffic Act, R.S.O. 1990, c. H.8, s. 134(1), Rules of Civil Procedure, rr. 21 and 25, Li et al. v. Barber et al., 2024 ONSC 775, Li et al. v. Barber et. al., 2022 ONSC 1176, Li et al. v. Barber et. al., 2022 ONSC 1351, Li et al. v. Barber et al., 2023 ONSC 1679, Bent v. Platnick, 2020 SCC 23, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, leave to appeal refused, [2023] S.C.C.A. No. 172, Rutman v. Rabinowitz, 2018 ONCA 80, leave to appeal refused, [2018] S.C.C.A. No. 130, Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, Stein v. Gonzales (1984), 14 D.L.R. (4th) 263 (B.C. S.C.), O’Connor v Canadian Pacific Railway Limited, 2023 BCSC 1371, Batty v. Toronto (City), 2011 ONSC 6862, Volumes 1 and 2 of the 2023 Final Report of the Public Inquiry into the 2022 Public Order Emergency, The Law of Torts, 8th ed. (Sydney: Law Book Co., 1992), The Law of Torts, 10th ed. (Sydney: Thomson Reuters, 2011), The Law of Torts, 5th ed. (Minnesota: West Publishing Co., 1984)

Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Canadian Charter of Rights and Freedoms, s. 2(b), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, Tamming v. Paterson, 2021 ONSC 8306, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. 927, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R., WIC Radio Ltd. v. Simpson, 2008 SCC 40, Boyer v. Callidus Capital Corp., 2023 ONCA 233, Mondal v. Evans-Bitten, 2023 ONCA 523, Marcellin v. London (City) Police Services Board, 2024 ONCA 468, Luc Crawford Design Inc. v. Mullowney, 2021 ONSC 7849, Bradford Travel and Cruises Ltd. v. Viveiros, 2019 ONSC 4587, 910938 Ontario Inc v. Moore, 2020 ONSC 4553, Thorman et al. v. McGraw, 2021 ONSC 7671, Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555, New Dermamed Inc. v. Sulaiman, 2018 ONSC 2517, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, Hamilton v. Vaughan, 2025 ONCA 98, Dent-X Canada v. Houde, 2022 ONCA 414, Mondal v. Evans-Bitten, 2022 ONSC 809, Grant v. Torstar Corp. 2009 SCC 61, Grist v. TruGrp Inc., 2021 ONCA 309, Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, Thatcher-Craig v. Clearview (Township), 2023 ONCA 96, Levant v. DeMelle, 2022 ONCA 79, Hamer v. Jane Doe, 2024 ONCA 721, Williams v. VAC Developments Limited, 2024 ONCA 713, Burjoski v. Waterloo Region District School Board, 2024 ONCA 811, Thorman v. McGraw, 2022 ONCA 851, 40 Days for Life v. Dietrich, 2024 ONCA 599, Bent v. Platnick, 2020 SCC 23, Li v. Barber, 2025 ONCA 169, Halsbury’s Laws of Canada – “Defamation” (2023 Reissue), Hilary Young, “Canadian Anti-SLAPP Laws in Action” (2022), 100:2 Can. B. Rev. 186

Tsarynny v. Topchiy, 2025 ONCA 175

Keywords: Family Law, Contracts, Separation Agreements, Setting Aside, Family Law Act, R.S.O. 1990, c. F.3 s. 56(4), LeVan v. LeVan, 2008 ONCA 388, Housen v. Nikolaisen, 2002 SCC 33, Dochuk v. Dochuk (1999), 44 R.F.L. (4th) 97 (Ont. S.C.), Demchuk v. Demchuk (1986), 1 R.F.L. (3d) 176 (Ont. H.C.), O’Brien v. O’Brien, 2013 ONSC 5750, Warren v. Warren, 2019 ONSC 1751

Short Civil Decisions

Furney v Hazan, 2025 ONCA 165

Keywords: Costs, Furney v. Hazan, 2025 ONCA 73, Girao v. Cunningham, 2021 ONCA 18, Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228, Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.)

Imona-Russel v. Zap, 2025 ONCA 161

Keywords: Human Rights, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Vexatious Litigation, Human Rights Code, R.S.O. 1990, c. H.19, Canadian Charter of Rights and Freedoms, Honda Canada Inc. v. Keays, 2008 SCC 39

SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP, 2025 ONCA 170

Keywords: Costs

Crowley v. Crowley, 2025 ONCA 157

Keywords: Wills and Estates, Testamentary Capacity, Civil Procedure, Striking Pleadings, Orders, Enforcement, Representation by Lawyer, Removal of Lawyer of Record, Self-Representation, Notices of Intention to Act in Person, Rules of Civil Procedure, rr. 15.04(8) and (9), Sennek v. Carleton Condominium Corporation No. 116, 2017 ONCA 154, Cunningham v. Hutchings, 2018 ONCA 365

Canadian Imperial Bank of Commerce v. Lightfoot, 2025 ONCA 167

Keywords: Costs

Whaling v. Cossarini, 2025 ONCA 173

Keywords: Family Law, Civil Procedure, Appeals, Jurisdiction, Transfer, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 19(1)(a.1), 110(1), Family Law Rules, O. Reg. 114/99, r. 1(8), Bernard v. Fuhgeh, 2020 ONCA 529

Landa v. The Dominion of Canada General Insurance Company, 2025 ONCA 184

Keywords: Civil Procedure, Appeals, Leave to Appeal, Panel Review

CIVIL DECISIONS

Maillet v. Deren, 2025 ONCA 159

[Tulloch C.J.O., Paciocco and Nordheimer JJ.A.]

Counsel:

S. McIvor, for the appellant
R. Law and G. Cosgrove, for the respondent

Keywords: Torts, Negligence, Civil Procedure, Pleadings, Third Party Claims, Leave to Commence, Extension of Time, Rules of Civil Procedure r. 21(1)(b), r. 29.02(1.2), Family Delicatessen Ltd v. London (City), 2006 CanLII 5135 (Ont. C.A.), Tadiem Inc. v. Allied Properties Management LP, 2018 ONSC 7676, Transpharm Canada Inc. v. MS Partners LLP, 2018 ONSC 375, Bell Canada v. Olympia & York Developments Ltd. (1988), 26 C.P.C. (2d) 113 (Ont. H.C.), Waterloo County Board of Education v. Mark, Musselman, McIntyre, Coombe et al.; J.T. Donald & Co. Ltd. et al. (Third Parties) (1982), 38 O.R. (2d) 61 (H.C.), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Royal Canadian Mortgage Investment Corporation v. 1835923 Ontario Ltd., 2020 ONCA 45, Arnold v. Teno, [1978] 2 S.C.R. 287

facts:

This action involved a claim by the minor respondent for damages resulting from a dog bite that he suffered in 2021. The dog was owned by the appellant. The statement of claim was issued on December 15, 2022, and the statement of defence was filed on January 11, 2023.

On February 7, 2023, the appellant advised the respondent of his intention to file a third-party claim against the respondent’s mother. The third-party claim was not issued at that time, apparently because then counsel for the appellant “did not have sufficient time”. Examinations for discovery were held on September 20, 2023. On October 18, 2023, counsel for the appellant asked the respondent to consent to the issuance of the third-party claim. The respondent refused. The motion for leave was then brought.

The motion judge dismissed the motion on two grounds. One was that the motion judge found that the respondent would suffer prejudice if the appellant was granted leave. The prejudice found by the motion judge was the prospect of further delay in the proceeding; that the respondent would lose the benefit of his father as his litigation guardian; and that further “cross-examination of the child” would occur.

The other ground found by the motion judge was the lack of merit in the proposed third-party claim. While the motion judge alternated between saying that the proposed third-party claim had no merit and that it had little merit, it was clear that the motion judge ultimately concluded that the proposed third party claim could not succeed.

issues:

1. Did the motion judge err in finding that the respondent would suffer if prejudice if leave to issue the third party claim was granted?
2. Did the motion judge err in finding that further delay was a matter that factored into the overall consideration of prejudice?
3. Did the motion judge err in finding the third party claim lacked merit?

holding:

Appeal dismissed.

reasoning:

1. Did the motion judge err in finding that the respondent would suffer if prejudice if leave to issue the third party claim was granted?

No. The wording of Rule 29.02(1) of the Rules of Civil Procedure made it clear leave must be granted absent prejudice being shown. The Court further noted that the motion judge’s analysis of prejudice was flawed, as it treated the loss of the father as litigation guardian as a certainty, which it was not. Similarly, there was no certainty, at this point, that there would be any further discovery of the respondent.

Nevertheless, the Court held that the realization that either, or both, of these events might happen in the future was still fairly considered as part of the prejudice analysis. So was the possibility that the father might feel conflicted, if the third party claim was brought, such that he might choose to withdraw as litigation guardian. A new litigation guardian would then have to be found and brought up to speed. The later in the process that such a change took place would create additional problems, including that the father has likely been privy to privileged conversations regarding trial tactics and strategy, all of which would have to be revisited with the new litigation guardian.

2. Did the motion judge err in finding that further delay was a matter that factored into the overall consideration of prejudice?

No. Delay is another factor to be considered into the overall consideration of prejudice. Delay that is inordinate and unexplained is presumed to cause prejudice: Family Delicatessen Ltd v. London (City). No explanation was offered by the appellant for the nine month delay in seeking to issue the third party claim. The presence or absence of an explanation for delay is always a factor to be considered when a party is seeking an extension of time. The Court held that the failure to offer an explanation weighs against the party seeking the extension of time. It also fails to rebut any presumed prejudice.

The issue of delay, by itself, was not determinative in this case. By the time of the motion, the delay in bringing third party proceedings was eleven months. That may not be an excessive delay in a case that is only slightly more than two years old, but it is nonetheless problematic given that the appellant had, months earlier, indicated that he would be advancing such a claim.

The Court held that two circumstances made delay of more consequence in this case. One was that this is a claim by a minor. The other is that this was a proceeding under the simplified rules, which are intended to make proceedings move more quickly.

3. Did the motion judge err in finding the third party claim lacked merit?

No. The Court rejected the appellants argument that the test to be applied in assessing the merits should be the one applied under Rule 21, that is, that that the allegations in the pleadings should be taken as being capable of being proved.

The Court held that in this case, the appellant was seeking an indulgence to permit him to issue a third party claim that was outside of the stipulated time limit by many months. In this case, there was available evidence regarding the events in issue and thus a preliminary determination could be made whether there was some merit to the proposed claim. In making that determination, the evidence should be viewed generously and without making any findings regarding credibility or reliability.

The Court further held that the appropriate test to be applied in these circumstances was the test generally used in determining whether an extension of time to take a step in a proceeding should be granted. That test involves an assessment of the merits of the proposed step. A lack of merit alone can be a sufficient basis on which to deny an extension of time.

Where, as here, there had been discoveries held and, consequently, there has been some canvassing of the evidence that was likely to be heard at trial, the motion judge was entitled to make a preliminary determination of the apparent merits of the third party claim and factor that into his prejudice analysis.

The Court noted that the motion judge concluded that the third party claim had little or no merit. In doing so, he referred to the general standard of care set out in Arnold v. Teno “the accepted standard of care by parents generally in the community”. The Court held that the appellant had not demonstrated any error in the motion judge’s conclusion in this respect.

Li v. Barber, 2025 ONCA 169

[Lauwers, Brown and Coroza JJ.A.]

Counsel:

J. Manson and C. Fleury, for the appellants C. B., T. L., D. B., D. E., M. G., T. M., R. M., S. T., Freedom 2022 Human Rights and Freedoms, H. J., Jonker Trucking Inc., and B. H.
S. Overwater, for the appellants P. K. and J. J.
R. Mogerman, for the respondents

Keywords: Torts, Nuisance, Concerted Action Liability, Civil Procedure, Class Proceedings, Anti-SLAPP, Canadian Charter of Rights and Freedoms, Class Proceedings Act, 1992, S.O. 1992, c. 6, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 137.1, 137.2-137.5 Emergencies Act, R.S.C. 1985, c. 22 (4th Supp.), Highway Traffic Act, R.S.O. 1990, c. H.8, s. 134(1), Rules of Civil Procedure, rr. 21 and 25, Li et al. v. Barber et al., 2024 ONSC 775, Li et al. v. Barber et. al., 2022 ONSC 1176, Li et al. v. Barber et. al., 2022 ONSC 1351, Li et al. v. Barber et al., 2023 ONSC 1679, Bent v. Platnick, 2020 SCC 23, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, leave to appeal refused, [2023] S.C.C.A. No. 172, Rutman v. Rabinowitz, 2018 ONCA 80, leave to appeal refused, [2018] S.C.C.A. No. 130, Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, Stein v. Gonzales (1984), 14 D.L.R. (4th) 263 (B.C. S.C.), O’Connor v Canadian Pacific Railway Limited, 2023 BCSC 1371, Batty v. Toronto (City), 2011 ONSC 6862, Volumes 1 and 2 of the 2023 Final Report of the Public Inquiry into the 2022 Public Order Emergency, The Law of Torts, 8th ed. (Sydney: Law Book Co., 1992), The Law of Torts, 10th ed. (Sydney: Thomson Reuters, 2011), The Law of Torts, 5th ed. (Minnesota: West Publishing Co., 1984)

facts:

The original plaintiff was a resident of Ottawa at the time of the Freedom Convoy (the “Convoy”) in early 2022 and commenced a proceeding under the Class Proceedings Act, 1992 (the “CPA”) in February 2022. In March 2023 there was a Fresh as Amended Statement of Claim which included four proposed representative plaintiffs (the “Respondents”) and several defendants. There were various individual defendants whom the Respondents alleged were the organizers and financial managers of the Convoy. There are also two classes of defendants that the Respondents will seek on their certification motion to have designated as representative defendants, the Trucker Class Defendants and the Donor Class Defendants. The Appellants are composed of certain defendants to the action. The amended claim seeks general damages for private and public nuisance, special damages for private and public nuisance causing business losses, special damages for private and public nuisance causing loss of wages and punitive damages.

No certification motion has been brought but several pre-certification motions have been brought. As a result of these pre-certification motions, various orders have been made. The Appellants appealed the order dismissing their motion to dismiss the claim against them under the anti-SLAAP provisions in s. 137.1 of the CJA.

issues:

1. Did the motion judge err in his treatment of the merits-based hurdle in s. 137.1(4)(a)(i) of the CJA?
2. Did the motion judge misconstrue the requirements of the “no valid defence” element found in s. 137.1(4)(a)(ii) of the CJA?
3. Did the motion judge err by failing to conduct the weighing exercise mandated by s. 137.1(4)(b) of the CJA?

holding:

Appeal dismissed.

reasoning:

1. No.

The Appellants submitted that the evidence tendered by the Respondents did not provide the motion judge with the basis to conclude that their proceeding has substantial merit within the meaning of s. 137.1(4)(a)(i) of the CJA.

First, the Court set out the governing test by explaining that s. 137.1(4) of the CJA stipulates that a judge shall not dismiss a proceeding that arises from an expression made by the plaintiff that relates to a matter of public interest if the responding party satisfies the three conditions set out in ss. 137.1(4)(a)(i), (ii) and (b). The motion judge is required to conclude that there is basis in fact and law to support a finding that the plaintiff’s claim has substantial merit, and that the defendant has no valid defence to the claim. The “substantial merit element” requires a plaintiff to satisfy the motion judge that there are grounds to believe that the underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success. Furthermore, a “real prospect of success” is where the prospect of success tends to weigh more in favor of the plaintiff. The Court noted that when assessing whether a plaintiff has demonstrated that there are grounds to believe the proceeding has substantial merit, the motion judge does not perform a deep dive into the evidence.

The Court found that the motion judge accurately set out the substantial merit branch of the s. 137.1(4) test. The motion judge concluded that the Respondents had satisfied him that there were grounds to believe that the proceeding had substantial merit. The Court held that this conclusion was amply supported by the evidence in the record before the motion judge.

The Appellants argued that the motion judge erred by finding that there was substantial merit to the claims based on the concerted action principle of tort liability. The Appellants submitted that the evidence did not provide grounds to believe the Respondents’ tort claims against them were based on the theory of concerted action liability. The Respondents’ concerted action-based tort claim alleged that some of the defendants who had a role in organizing the Convoy (the “Organizer Defendants”), planned, encouraged, facilitated, supported, promoted and directed many of the actions that the Respondents’ considered to be actions that amount to nuisance, such as honking and prolonged emission of diesel fumes. The Court explained that concerted action liability in tort is a fact-sensitive concept. The Court was of the view that the evidence filed by both parties was sufficient to satisfy the motion judge that there were grounds to believe the Respondents’ proceeding against the Appellants based on concerted action liability had substantial merit.

The Appellants further argued that the motion judge erred by finding the claim against the defendants that donated to the Convoy (the “Donor Class Defendants”) satisfied the substantial merit test and that that the motion judge erred in finding that the claim for public nuisance damages satisfied the substantial merit test. The Court saw no reversible error in the motion judge’s conclusion.

2. No.

A condition that a plaintiff must meet to avoid the dismissal of its proceeding that arises from public interest expression made by a defendant is to satisfy the motion judge that there are grounds to believe that the defendant has no valid defence in the proceeding. The motion judge concluded that the Respondents had satisfied that condition, and the Court was not persuaded that the motion judge had erred.

The Court explained that the “no valid defence” provision requires that a plaintiff demonstrate that there are grounds to believe that the defences have no real prospect of success. The Court then found that the motion judge paraphrased the “no valid defence” element to assist lay readers. The motion judge paraphrased by explaining that the plaintiff would have to demonstrate that it is reasonably possible that none of the available defences will succeed or that none of the potential defences are likely to prevail. The Court noted that paraphrasing to make judicial reasons more accessible is a laudable goal, however, they cautioned that the best principle for any motion judge to follow is to simply use the language of the Supreme Court decisions, as paraphrasing risks complicating matters. Be that as it may, the Court was not persuaded that the motion judge’s language resulted in him applying a substantively different test. The Court was not persuaded that the motion judge committed a reversible error in concluding that the Respondents had satisfied s. 137(4)(a) of the CJA.

3. No.

The Appellants argued that the motion judge failed to undertake a meaningful weighing exercise and failed to consider the public interest in protecting the types of expression at issue. The Court was not persuaded by this argument.

The Court found that the motion judge’s reasons revealed that he was fully alive to the tension between the different aspects of the public interest at play on the motion and that he weighed these interests throughout his reasons. The Court found that the motion judge understood the political motivation and goals of the Convoy protest, and he understood the harm the residents and businesses in the protest zone contended they had suffered as a result of how the protest was conducted. Accordingly, the Court saw no reversible error in the motion judge’s s. 137.1(4)(b) weighing.

Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171

[Lauwers, Brown, Coroza JJ.A.]

Counsel:

A. Zaya and S. J. Erskine, for the appellants
Sheldon Inkol, for the respondents

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Canadian Charter of Rights and Freedoms, s. 2(b), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, Tamming v. Paterson, 2021 ONSC 8306, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. 927, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R., WIC Radio Ltd. v. Simpson, 2008 SCC 40, Boyer v. Callidus Capital Corp., 2023 ONCA 233, Mondal v. Evans-Bitten, 2023 ONCA 523, Marcellin v. London (City) Police Services Board, 2024 ONCA 468, Luc Crawford Design Inc. v. Mullowney, 2021 ONSC 7849, Bradford Travel and Cruises Ltd. v. Viveiros, 2019 ONSC 4587, 910938 Ontario Inc v. Moore, 2020 ONSC 4553, Thorman et al. v. McGraw, 2021 ONSC 7671, Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555, New Dermamed Inc. v. Sulaiman, 2018 ONSC 2517, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, Hamilton v. Vaughan, 2025 ONCA 98, Dent-X Canada v. Houde, 2022 ONCA 414, Mondal v. Evans-Bitten, 2022 ONSC 809, Grant v. Torstar Corp. 2009 SCC 61, Grist v. TruGrp Inc., 2021 ONCA 309, Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, Thatcher-Craig v. Clearview (Township), 2023 ONCA 96, Levant v. DeMelle, 2022 ONCA 79, Hamer v. Jane Doe, 2024 ONCA 721, Williams v. VAC Developments Limited, 2024 ONCA 713, Burjoski v. Waterloo Region District School Board, 2024 ONCA 811, Thorman v. McGraw, 2022 ONCA 851, 40 Days for Life v. Dietrich, 2024 ONCA 599, Bent v. Platnick, 2020 SCC 23, Li v. Barber, 2025 ONCA 169, Halsbury’s Laws of Canada – “Defamation” (2023 Reissue), Hilary Young, “Canadian Anti-SLAPP Laws in Action” (2022), 100:2 Can. B. Rev. 186

facts:

The respondents contracted with the appellants to carry out renovations on their home in Niagara-on-the-Lake. The relationship ended badly with the appellants starting a lien action to recover for unpaid bills. The respondents made comments on social media regarding their discontent with the appellants. The appellants commenced a defamation action for derogatory comments made by the respondents on social media. In response, the respondents brought a motion for an order dismissing the action as a Strategic Lawsuit Against Public Participation (“SLAPP”) under s. 137.1 of the Courts of Justice Act.

The motion judge granted the respondents motion and dismissed the appellants’ defamation action under s. 137.1 based on three findings. First, that the respondent’s comments on social media related to a matter of public interest. Second, that there were grounds to believe that the appellants’ defamation action had substantial merit. Third, the appellants failed to establish that any harm suffered as a result of the respondent’s comments was serious because there were other reasons external to this matter that the appellants’ reputation suffered.

issues:

1. Did the motion judge err in finding that the respondents’ statements related to a matter of public interest under s. 137.1(3)?
2. Did the motion judge err in her approach to the ground of “no valid defence” under s. 136.1(4)(a)(ii)?
3. Did the motion judge err in her approach to the weighing exercise relating to harm and the public interest under s. 137.1(4)(b)?

holding:

Appeal allowed.

reasoning:

1. Yes.

The motion judge erred in finding that the respondents’ statements related to a matter of public interest under s. 137.1(3). The Court reviewed caselaw that involved online reviews of goods and services. The Court looked at cases which related to a “purely private dispute,” and then looked at cases which related to public interest. The Court noted that cases which involved public interest commonly included an expression that engaged a broader societal concern. Upon comparative review, the Court concluded that the appellants matter was no more a public dispute than the other cases which had been characterized as private disputes. Further, the Court found that the respondents’ comments did not engage a broader societal concern. Accordingly, it did not fall within the types of expressions intended to be captured by s. 137.1.

2. Yes.

The motion judge erred in her approach to the ground of “no valid defence” under s. 137.1(4)(a)(ii). Specifically, the Court found that the motion judge erred in her approach by having effectively ignored “and” at the end of s. 137.1(4)(a). In doing so, the Court found that the motion judge ignored the decisions that hold the weighing exercise in s. 137.1(4)(b) to be the fundamental crux of the Court’s analysis. Importantly, the weighing exercise more carefully assesses the competing interest of free speech in one hand, and defamation law’s reputational protection in the other.

The Court also explained that the Supreme Court’s decision in Bent called for a more nuanced approach to s. 137.1(4)(a)(ii). Distinguishing Pointes, the Court found that the categorical approach that has often followed from Côté J.’s words in Pointes at para. 58, did not account for the intricate nature of a defamation action and the plethora of possible defences. Furthermore, the Court asserted that the categorical approach that has incorrectly followed Pointes has encouraged a focus on the truth of a statement as opposed to the “sting,” and, to unnecessarily explore every possible defence at length.

The Court concluded that the preferable approach to take in anti-SLAPP motions in defamation actions, where it is not immediately clear that there is no valid defence, is to move to the weighing exercise in s. 137.1(4)(b).

3. Yes.

The motion judge erred in her approach to the weighing exercise relating to harm and the public interest under s. 137.1(4)(b). The Court undertook a review of the governing principles and applied them to the facts of this appeal. The Court reiterated that the respondents’ statements concerned a home renovation gone wrong and did not relate to a matter to public interest. Regardless, the Court found that the respondents’ comments appeared to contain indicia of malice which reduced the interest in protection protecting the expression. Ultimately, the Court found that the dispute was private and s. 137.1 should not have applied.

Tsarynny v. Topchiy, 2025 ONCA 175

[Sossin, Favreau and Monahan JJ.A.]

Counsel:

D. Lyons, for the appellant
G. Pribytkova, for the respondent

Keywords: Family Law, Contracts, Separation Agreements, Setting Aside, Family Law Act, R.S.O. 1990, c. F.3 s. 56(4), LeVan v. LeVan, 2008 ONCA 388, Housen v. Nikolaisen, 2002 SCC 33, Dochuk v. Dochuk (1999), 44 R.F.L. (4th) 97 (Ont. S.C.), Demchuk v. Demchuk (1986), 1 R.F.L. (3d) 176 (Ont. H.C.), O’Brien v. O’Brien, 2013 ONSC 5750, Warren v. Warren, 2019 ONSC 1751

facts:

The parties married in Ukraine in 2003. After they married, the appellant sponsored the respondent to come to Canada. Subsequently, they had two children together.

The parties signed a separation agreement on March 15, 2016, after the appellant discovered that the respondent had had an affair. The separation agreement had been downloaded from the internet and neither party received independent legal advice before they signed it. The separation agreement waived equalization, fixed nominal spousal support, and provided for zero or table child support from only the appellant, despite 50-50 parenting time. It also excluded the appellant’s company, PostBeyond, from equalization.

Initially, the parties agreed that the separation date was March 15, 2016. However, the respondent subsequently submitted that the date of separation for the purposes of equalization was July 31, 2018.

The application judge set aside the separation agreement between the appellant and respondent and fixed the separation date as July 31, 2018. The appellant argued the application judge made reversible errors both in setting aside the separation agreement and in fixing the date of separation.

issues:

1. Did the application judge err in setting aside the separation agreement?
2. Did the application judge err in determining the date of separation?

holding:

Appeal dismissed.

reasoning:

1. Did the application judge err in setting aside the separation agreement?

No. The Court disagreed with the appellant’s argument that while failing to disclose a significant asset can be a “fundamental” or “crucial” factor in the analysis as to whether to set aside a separation agreement, the absence of disclosure on its own is not “fatal.”

The Court noted that in deciding whether to set aside a domestic agreement, the Court in LeVan set out a two-step process. First, a party seeking to set aside the agreement must satisfy the court that there was non-disclosure by the opposing party of a significant asset, and second, the court must consider whether it is appropriate to exercise its discretion to set the agreement aside.

The Court noted that the application judge concluded both that the appellant’s company was a significant asset and that the exercise of her discretion to set aside the separation agreement was warranted on fairness grounds. In LeVan, the Court confirmed that fairness is an appropriate consideration in the exercise of this discretion.

The Court held that it was open to the application judge to set aside the separation agreement based on her conclusions with respect to the respondent’s failure to disclose information about his company, and with respect to the unfairness to the respondent in enforcing the agreement.

2. Did the application judge err in determining the date of separation?

No. The Court noted that determining the date of separation is a question of fact and was entitled to deference.

The Court held that the application judge correctly instructed herself that the separation date may be established when there is an unequivocal act by the separating spouse indicating that he or she wishes to separate without possibility of reconciliation, relying on O’Brien v. O’Brien. The possibility of reconciliation, in turn, is determined by whether, in light of the intention of the parties, a reasonable person, knowing all the circumstances, would believe that the parties had a prospect of resuming cohabitation. The intention of the parties requires a consideration of a range of objective factors, in addition to the stated intentions of the parties. The Court noted that the application judge considered a range of factors in her analysis.

The Court noted that that some of the evidence in the record with respect to these factors was capable of more than one interpretation, but that was not the test for appellate intervention. The Court saw no basis for the claim that the application judge misapprehended any of the evidence.

The Court agreed with the application judge’s finding that the separation process may have begun with the signing of the separation agreement in March 2016, but it did not conclude until July 2018.

SHORT CIVIL DECISIONS

Furney v Hazan, 2025 ONCA 165

[Hourigan, Favreau and Dawe JJ.A.]

Counsel:

M. Furney and A. A. Furney, acting in person
S. Kesar, for the respondent, Dominion Lending Centres Inc.
J. Wilkes and J. Howell, for the respondent, Samir Chhina

Keywords: Costs, Furney v. Hazan, 2025 ONCA 73, Girao v. Cunningham, 2021 ONCA 18, Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228, Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.)

Imona-Russel v. Zap, 2025 ONCA 161

[Nordheimer, Gomery and Dawe JJ.A.]

Counsel:

Dr. W. Imona-Russel, acting in person
Z. Lanys, for the respondent

Keywords: Human Rights, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Vexatious Litigation, Human Rights Code, R.S.O. 1990, c. H.19, Canadian Charter of Rights and Freedoms, Honda Canada Inc. v. Keays, 2008 SCC 39

SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP, 2025 ONCA 170

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

Counsel:

B. David Moldaver, for the appellants
W. Pepall and R. Shoom, for the respondent

Keywords: Costs

Crowley v. Crowley, 2025 ONCA 157

[Sossin, Favreau and Monahan JJ.A.]

Counsel:

M. Crowley, acting in person
E. Brohm, for the respondent Michelle Crowley

Keywords: Wills and Estates, Testamentary Capacity, Civil Procedure, Striking Pleadings, Orders, Enforcement, Representation by Lawyer, Removal of Lawyer of Record, Self-Representation, Notices of Intention to Act in Person, Rules of Civil Procedure, rr. 15.04(8) and (9), Sennek v. Carleton Condominium Corporation No. 116, 2017 ONCA 154, Cunningham v. Hutchings, 2018 ONCA 365

Canadian Imperial Bank of Commerce v. Lightfoot, 2025 ONCA 167

[Paciocco, Monahan and Wilson JJ.A.]

Counsel:

D. Lightfoot, acting in person
A. Hora, for the respondent

Keywords: Costs

Whaling v. Cossarini, 2025 ONCA 173

[Nordheimer, Gomery and Dawe JJ.A.]

Counsel:

M. D. Whaling, acting in person
S. Strathopolous, for the moving party

Keywords: Family Law, Civil Procedure, Appeals, Jurisdiction, Transfer, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 19(1)(a.1), 110(1), Family Law Rules, O. Reg. 114/99, r. 1(8), Bernard v. Fuhgeh, 2020 ONCA 529

Landa v. The Dominion of Canada General Insurance Company, 2025 ONCA 184

[Miller, Trotter and Copeland JJ.A.]

Counsel:

M. Landa, acting in person
C. McCormack, for the responding party The Dominion of Canada General Insurance Company

Keywords: Civil Procedure, Appeals, Leave to Appeal, Panel Review

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.