In North v. Bayerische Motoren Werke AG, the certification judge had certified a class against against BMW as a result of defective N20 engines. On appeal, the certification was set aside, as neither of the representative plaintiffs had a valid cause of action. The claims were for pure economic loss, which is not recoverable except to the extent losses are incurred to avert imminent danger to property or person. Replacement costs, repair costs and disposal costs not incurred to avert imminent danger are not recoverable in tort. Since neither representative plaintiff had incurred recoverable losses, the certification of the class action was set aside.

Total Meter Services Inc. v. GVM Integration involved a former employee and independent contractor copying source code from his former employer, resulting in a breach of contract, fiduciary duty and confidence. The Court allowed the appeal in part, finding that the trial judge did not err in making an adverse inference that the source code had been copied, but did err in failing to address the Appellants’ limitation defence.

In Echelon General Insurance Company v. Unifund Assurance, a SABs priority dispute between insurers, the Court confirmed that on a proper reading of Regulation 283 under the Insurance Act, pre-arbitration expenses incurred by an insurer outside of a situation where there was an improper deflection of a SABs claim by an opposing insurer under s. 2.1(7) of Regulation 283 are not recoverable. The Court held that Regulation 283 reflects a deliberate regulatory policy choice to have insurers ordinarily bear their own pre-arbitration expenses, unless there has been improper deflection of a SABs claim, even if this creates some potential for unfairness in particular cases.

In Surefire Dividend Capture, LP v. National Liability & Fire Insurance Company (Berkshire Hathaway Specialty Insurance), the Court dismissed an appeal seeking insurance coverage for losses sustained in a Ponzi scheme perpetrated by a hedge fund’s CEO. The trial judge held that the CEO was not the appellant’s “Employee” under the fidelity bond, nor was there a “Theft of Customer Property” as defined.

In Windrift Adventures Inc. v. CTV-Bell Media Inc., the Court upheld the dismissal of a defamation action under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act. The Court agreed the expression in a W5 episode regarding the maltreatment of sled dogs related to a matter of public interest, found the action lacked substantial merit, and held the alleged harm to the appellants was not serious enough to outweigh the public interest in protecting the expression. The Court clarified that its comments in Burjoski that a claim had to be “abusive” before an action would be dismissed under s. 137.1 did not change the Pointes Protection test laid out by the Supreme Court.

In Dhaliwal v. Nijher, the Court dismissed an appeal brought by the appellant wife after her family law claims were dismissed following an eight-day trial. The parties had only been married for 14 months and had no children. Other topics covered included enforcement of short term rental bylaws, employment law, lawyers’ professional discipline, enforcement of settlements, intervenors, family law and extension of time to appeal.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Dhaliwal v. Nijher, 2025 ONCA 325

Keywords: Family Law, Divorce, Property, Remedies, Equalization of Net Family Property, Unequal Division, Spousal Support, Torts, Intentional Infliction of Mental Distress, Family Law Act, R.S.O. 1990, c. F.3, Family Law Rules, O.Reg. 114/99, Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (C.A.), Colistro v. Tbaytel, 2019 ONCA 197, leave to appeal refused, [2019] S.C.C.A. No. 173, Piresferreira v. Ayotte, 2010 ONCA 384, leave to appeal refused, [2010] S.C.C.A.

Total Meter Services Inc. v. GVM Integration, 2025 ONCA 321

Keywords: Breach of Contract, Breach of Fiduciary Duty, Breach of Confidence, Civil Procedure, Limitation Periods, Evidence, Adverse Inferences, Limitations Act,2002, SO 2002, c 24, Sch B, s. 4, Rules of Civil Procedure, rr. 25.06(8), 30.06, 1468025 Ontario Limited v. 998614 Ontario Inc., 2016 ONCA 504, Polla v. Croatian (Toronto) Credit Union Limited, 2020 ONCA 818, leave to appeal refused, [2021] S.C.C.A. No. 64., 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, Fehr v. Sun Life Assurance Company of Canada, 2024 ONCA 847

Echelon General Insurance Company v. Unifund Assurance, 2025 ONCA 324

Keywords: Contracts, Insurance Law, Statutory Accident Benefits, Priority, Statutory Interpretation, Insurance Act, R.S.O. 1990, c. I.8, Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41, Arbitration Act, 1991, S.O. 1991, c. 17, Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund, 2007 ONCA 61, Kingsway General Insurance Company v. Ontario, 2007 ONCA 62, State Farm Mutual Automobile Insurance Company v. TD Home & Auto Insurance Company, 2016 ONSC 6229, Zurich Insurance Company v. Co-Operators General Insurance Company (2008), 62 C.C.L.I. (4th) 207 (Ont. S.C.), R. v. Lombard Insurance Co. of Canada,2010 ONSC 1770, Gyorffy v. Drury, 2015 ONCA 31, Ontario (Finance) v. Echelon General Insurance Company, 2019 ONCA 629, Kingsway General Insurance Co. v. West Wawanosh Insurance Co. (2002), 58 O.R. (3d) 251 (C.A.), Travelers Insurance Company of Canada v. CAA Insurance Company, 2020 ONCA 382

Schram v. Linwood Management Corporation, 2025 ONCA 337

Keywords: Real Property, Residential Tenancies, Civil Procedure, Leave to Appeal, Extension of Time, Residential Tenancies Act, 2006, S.O. 2006, c. 17, s 64(1), Canadian Charter of Rights and Freedoms, s 15, Rules of Civil Procedure, s 63.02(1)(b), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412, Issasi v. Rozenzweig, 2011 ONCA 112, Pantoja v. Belilla, 2023 ONCA 757, Kaiman v. Graham, 2009 ONCA 77, Matthews v. Algoma Timberlakes Corp., 2010 ONCA 468, North York General Hospital Foundation v. Armstrong (2005), 258 DLR (4th) 85 (Ont. C.A.)

Surefire Dividend Capture, LP v. National Liability & Fire Insurance Company (Berkshire Hathaway Specialty Insurance), 2025 ONCA 332

Keywords: Contracts, Insurance, Coverage, Rules of Civil Procedure, r. 13.01, Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 52, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, Oshawa Group Ltd. v. Great American Insurance Co. (1982), 132 D.L.R. (3d) 453, 36 O.R. (2d) 424 (C.A.), Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, Corner Brook v. Bailey, 2021 SCC 29, Surefire Dividend Capture, LP v. National Liability & Fire Insurance Company (Berkshire Hathaway Specialty Insurance), 2024 ONCA 644

North v. Bayerische Motoren Werke AG, 2025 ONCA 340

Keywords: Torts, Negligence, Product Liability, Negligent Design, Negligent Manufacture, Failure to Warn, Civil Procedure, Class Proceedings, Certification, Representative Plaintiffs, Damages, Pure Economic Loss, Class Proceedings Act, 1992, S.O. 1992, c. 6.1, 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R. 85, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, D. & F. Estates Ltd. v. Church Commissioners for England, [1989] A.C. 177, [1988] 2 All E.R. 992, Murphy v. Brentwood District Council, [1991] 1 A.C. 398, [1990] 2 All E.R. 908 (H.L.)., Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, Carter v. Ford Motor Co. of Canada, 2021 ONSC 4138, n Fernandez Leon v. Bayer Inc., 2023 ONCA 629, Coles v. FCA Canada Inc., 2022 ONSC 5575, Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2020 ONSC 1647, Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, Stone v. Wellington County Board of Education (1999), 120 O.A.C. 296 (Ont. C.A.)

Windrift Adventures Incorporated v. CTV-Bell Media Inc., 2025 ONCA 346

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Burjoski v. Waterloo Region District School Board, 2024 ONCA 811, Bent v. Platnick, 2020 SCC 23

Short Civil Decisions

Munir v. Garg, 2025 ONCA 334

Keywords: Municipal Law, Land Use Planning, Bylaws, Enforcement, Short Term Rentals, Jurisdiction, Charter of Rights and Freedoms, ss. 7, 15, Fire Protection and Prevention Act, 1997, S. O. 1997, c. 4, Municipal Act 2001, S.O 2001 c. 25, Residential Tenancies Act, 2006, S. O. 2006, c. 17

Henderson v. Wang, 2025 ONCA 335

Keywords: Wills and Estates, Civil Procedure, Appeals, Extension of Time, Rules of Civil Procedure, r. 61.04(1), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Issasi v. Rozenzweig, 2011 ONCA 112, Pantoja v. Belilla, 2023 ONCA 757, 828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412

Elzayat v. Rogers Communications, 2025 ONCA 336

Keywords: Employment Law, Human Rights, Discrimination, Civil Procedure, Limitation Periods, Discoverability, Incapacity, Summary Judgment, Appeals, Panel Reviews, Evidence, Transcripts, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), Hillmount Capital Inc. v. Pizale, 2021 ONCA 364

De Longte v. De Longte, 2025 ONCA 338

Keywords: Family Law, Professional Negligence, Lawyers, Civil Procedure, Appeals, Ineffective Assistance of Counsel, Intervenors, Rules of Civil Procedure, rr. 1.04, 13.01, Family Law Rules, O. Reg. 114/99, r. 25(19), Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Butty v. Butty (2009) 96 O.R. (3d) 713 (C.A.), SMTCL Canada Inc. v. Master Tech Inc., 2017 ONCA 291, W.(D.) v. White (2004), 189 O.A.C. 256 (C.A.), 8150184 Canada Corp. v. Rotisseries Mom’s Express Ltd., 2016 ONCA 115

Law Society of Ontario v. Colangelo, 2025 ONCA 341

Keywords: Regulated Professions, Lawyers, Professional Discipline, Civil Procedure, Appeals

Adelaide Metcalfe (Township) v. Strathroy-Caradoc (Municipality), 2025 ONCA 342

Keywords: Costs

2853753 Ontario Inc. v. Prive Developments Corp., 2025 ONCA 339

Keywords: Contracts, Duty of Good Faith, Penalties, Civil Procedure, Settlements Agreement, Enforcement, Applications, Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7

McKenzie-Barnswell v. Xpert Credit Control Solutions Inc., 2025 ONCA 344

Keywords: Civil Procedure, Appeals, Addendum, Damages, Post-Judgment Interest, Courts of Justice Act, RSO 1990, c C42, s 129

Knauff v. Ontario (Human Rights Tribunal), 2025 ONCA 345

Keywords: Human Rights, Civil Procedure, Leave to Appeal, Intervenors, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 61.03.1(1), 61.03.1(15), West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910, Davis v. Aviva General Insurance Company, 2024 ONCA 944

Huang v. Mundulai, 2025 ONCA 343

Keywords: Family Law, Parenting, Equalization of Net Family Property, Family Law Act, R.S.O. 1990, c. F.3, s. 10.1(3)

CIVIL DECISIONS

Dhaliwal v. Nijher, 2025 ONCA 325

[Sossin, Monahan and Madsen JJ.A.]

Counsel:

M. D., appellant, acting in person
S. S. Joshi, for the respondents

Keywords: Family Law, Divorce, Property, Remedies, Equalization of Net Family Property, Unequal Division, Spousal Support, Torts, Intentional Infliction of Mental Distress, Family Law Act, R.S.O. 1990, c. F.3, Family Law Rules, O.Reg. 114/99, Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (C.A.), Colistro v. Tbaytel, 2019 ONCA 197, leave to appeal refused, [2019] S.C.C.A. No. 173, Piresferreira v. Ayotte, 2010 ONCA 384, leave to appeal refused, [2010] S.C.C.A.

facts:

The appellant wife and respondent husband were married for 14 months and shared no children. The husband sought a simple divorce, and the wife filed an Answer seeking equalization, spousal support and other property-related relief. She also brought a concurrent civil action against the husband and four members of his family seeking damages for intentional infliction of mental distress. The claims were heard together in an eight-day trial and the judge dismissed all of the wife’s claims, except for equalization, which he partially allowed. The wife was ordered to pay costs of $85,000.
The wife challenged every order arising from the trial but alleged no error of law and sought leave to appeal the costs award.

issues:

Did the trial judge err in her factual and credibility findings?

holding:

Appeal dismissed.

reasoning:

No.

The Court noted that its role is not to retry the case, re-weigh evidence, or make fresh credibility determinations and that absent palpable and overriding error, which it did not find, it was not the Court’s role to intervene. Before briefly canvassing the wife’s substantive issues, the Court noted that the trial judge, who had the benefit of hearing the oral evidence directly, made significant credibility findings against the appellant which were not easily disturbed on appeal. The Court found that the trial judge’s reasons demonstrated that he fairly considered the wife’s evidence.

With respect to the property claims, the Court found that the trial judge’s analysis of the wife’s equalization claim reflected no error, nor did his conclusion regarding the amount of the equalization payment. Similarly, the Court found no error in the trial judge’s statement of the applicable law, nor in his application of the law regarding spousal support. The Court noted that this was a 14-month marriage with no children, during which the wife was able to pursue a college degree and following separation she secured employment earning over $50,000 per year in addition to income she earns from self-employment. The Court also found that the wife’s claims based on “callous abandonment” and “lost opportunities” to start a consulting business and find a suitable mate, were appropriately found to be without merit. Thus, the trial judge’s findings that neither compensatory nor needs based support was appropriate was entirely reasonable.

Regarding the wife’s claim for damages for intentional infliction of mental distress, the Court found no error in trial judge’s approach or conclusions on this issue. The Court found that the trial judge correctly set out the law regarding claims for damages in relation to intentional infliction of mental distress and that in reviewing the evidence carefully, and in the context of his overall assessment of credibility, he found that the appellant could not meet any branch of the test: the conduct was not flagrant or outrageous; it was not calculated to produce harm; and did not result in visible or probable illness.

The wife also made miscellaneous claims, including that she was effectively a tenant of her in-laws’ home and as such she was entitled to notice before eviction. The trial judge found, and the Court agreed, that no tenancy had been created because the wife lived in her in-laws’ home sharing a bathroom and kitchen with them. The Court found no error in the trial judge’s conclusion that once the parties separated, the wife had no further right to reside in her in-laws’ home.

In conclusion, the Court addressed the wife’s oral submissions that she felt marked by the adverse findings in the trial decision, liking it to a criminal record hanging over her. The Court was of the view that the trial was about the legal issues arising from the parties’ separation and nothing more. It was not about the essential dignity or worth of either party.
The Court dismissed the wife’s application for leave to appeal the costs decision and ordered her to pay costs of the appeal in the amount of $5,000.

Total Meter Services Inc. v. GVM Integration, 2025 ONCA 321

[Miller, Trotter and Copeland JJ.A.]

Counsel:

A. Tardif and J. Plotkin, for the appellants
B. Bowen, for the respondent

Keywords: Breach of Contract, Breach of Fiduciary Duty, Breach of Confidence, Civil Procedure, Limitation Periods, Evidence, Adverse Inferences, Limitations Act, 2002, SO 2002, c 24, Sch B, s. 4, Rules of Civil Procedure, rr. 25.06(8), 30.06, 1468025 Ontario Limited v. 998614 Ontario Inc., 2016 ONCA 504, Polla v. Croatian (Toronto) Credit Union Limited, 2020 ONCA 818, leave to appeal refused, [2021] S.C.C.A. No. 64., 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, Fehr v. Sun Life Assurance Company of Canada, 2024 ONCA 847

facts:

The Appellant, Mr. R, worked for the Respondent, Total Meter Services Inc. (“TMS”), as a software developer and manager. He stopped working for the Respondent as an employee on November 30, 2012, but continued to work for the Respondent as an independent contractor. The Appellant then ceased working for the Respondent altogether in May 2013. Mr. M, a defendant in the action, was an employee of the Respondent. In August of 2013, the Appellant hired Mr. M to work at GVM Integration (“GVM”), which is a company controlled by the Appellant. Together, GVM and the Appellant make up the Appellants.

The Respondent initiated its claim in 2014, alleging breach of fiduciary duty, breach of confidence, and breach of contract. The allegations in the Respondent’s original claim were that the Appellants copied the Respondent’s proprietary software to create software products (“GCM software”) that competed directly with the products that he had developed for the Respondents. In 2020, the Respondent amended the claim to allege that the Appellant breached his fiduciary obligations to the Respondent by appropriating corporate opportunities of the Appellant involving a customer of the Respondent, Total Control Systems (“TCS” and the “TCS Opportunities claim”). The TCS Opportunities claim focused on a time-period beginning in October 2012, when the Appellant was still employed by the Respondent.

issues:

1. Did the trial judge err in drawing an adverse inference in reaching the conclusion that the Appellant copied the Respondent’s source code?
2. Did the trial judge err in failing to address the Appellants’ limitations defence to the TCS Opportunities claim?

holding:

Appeal allowed, in part.

reasoning:

1.     No.

In her assessment of the credibility of the Appellants’ evidence, the trial judge drew an adverse inference against the Appellant on the basis that he failed to comply with his obligation under the Rules of Civil Procedure to produce relevant documents during discovery. In particular, she found that the Appellant produced GVM source code that he knew or ought to have known could not be compared in a meaningful way to the Respondent’s source code. The source code for the GVM software that the Appellant produced during discovery was mostly in the C# programming language. The source code for the Respondent’s software was written in Visual Basic. The trial judge accepted the evidence of the Respondent’s expert that the fact that the GVM source code produced during discovery was almost all in a programming language other than Visual Basic meant that the source codes could not be compared in a meaningful way to assess whether the GVM software prepared by the Appellant was written using the Respondent’s source code.

The Appellants argued that the trial judge erred in drawing an adverse inference based on nondisclosure of the complete GVM source code in Visual Basic because she based the inference on the fact that the source code produced by the Appellants was mostly in C# and had a small number of files written in Visual Basic. The Appellants argued that the evidence did not support the proposition that the lack of Visual Basic files in the GVM source code produced by the Appellants in discovery meant that a significant amount of Visual Basic source code had been withheld.

The Court did not accept the Appellants’ argument that the trial judge based the adverse inference on the disparity between the number of C# files and the number of Visual Basic files in the Appellants’ GVM source code. The trial judge found that the small number of Visual Basic files produced by the Appellants impeded meaningful comparison by the Respondent’s expert of their source code and the GVM source code. But the basis for the adverse inference drawn by the trial judge was primarily the evidence of Mr. M, which the trial judge accepted. Mr. M testified that the Appellant wrote the GVM software in the Visual Basic programming language. Mr. M also testified that the Appellant tasked him to convert the source code for GVM’s software from Visual Basic to C#. The trial judge found, based on Mr. M’s evidence, that the conversion from Visual Basic to C# was intended partly to enhance the source code’s flexibility, and partly to conceal the Appellant’s actions. Based on Mr. M’s evidence, the trial judge found that when he converted the GVM source code from Visual Basic to C#, he did not change or modify the original Visual Basic source code. Thus, the trial judge found that the original Visual Basic source code for the GVM software should have been available in the GVM archive for production during discovery. Yet the GVM software source code produced was almost all in C#.

The Court found that this evidence provided an ample basis for the trial judge to draw an adverse inference in assessing the Appellants’ credibility for failing to produce the GVM source code in the Visual Basic programming language. As there was an evidentiary basis for the adverse inference, the Court stated that the trial judge’s credibility assessment and her decision to draw an adverse inference as part of that assessment were entitled to deference. Accordingly, the Court saw no palpable and overriding error in the trial judge’s decision to draw an adverse inference.

2.     Yes.

The Appellants consented to the amendment of the Respondent’s Statement of Claim in 2020 but reserved the right to argue that the TCS Opportunities claim was a new claim and was statute-barred. At trial, the Appellants argued the Limitations Act defence, but in the trial judge’s reasons for judgment, she did not mention this argument. The Court held that the trial judge erred by failing to address the Limitations Act defence to the TCS Opportunities claim in her reasons.

The Court noted that the Limitations Act defence issue is reviewable on a correctness standard, as the question of whether an amendment raises a new cause of action is a question of law. The date of discoverability of the claim was not in dispute between the parties; the TCS Opportunities claim was discovered no later than May 8, 2013. As a result, the Court found that it was appropriate for the Court to assess the limitations defence and that a new trial was not required on this issue. The Court found that the TCS Opportunities claim was a new cause of action. When determining whether an amendment raises a new cause of action, the court must consider whether the original pleading already contains the factual matrix to support the claim in the proposed amendment, or whether the proposed amendment seeks to put forward additional facts that are necessary to a new and different claim.

The Court found that the original claim pleaded that the Appellant began approaching the Respondent’s clients after he ceased to be its employee and performed services for them, copying the Respondent’s software. The TCS Opportunities claim pleaded that while the Appellant was still an employee of the Respondent, he secretly worked with a particular client, TCS, to deprive the Respondent of a business opportunity to develop a new software product linked to a specific TCS product. The fact that the TCS Opportunities claim was based on the same legal categories as the original claim (breach of fiduciary duty, breach of confidence, and breach of contract) did not lead to the result that it is not a new cause of action. Accordingly, the Court held that because the TCS Opportunities claim was not added until September 2020, more than seven years after it was discovered, it was brought outside the two-year limitation period provided for in section 4 of the Limitations Act. The TCS Opportunities claim was therefore statute-barred. The Court remedied this error by reducing the damages awarded at trial by deducting the amount attributable to the TCS Opportunities claim from the trial judge’s award of damages.

Echelon General Insurance Company v. Unifund Assurance, 2025 ONCA 324

[Nordheimer, Gomery and Dawe JJ.A.]

Counsel:

K. Kolnhofer and D. Van Vroenhoven, for the appellant

J. Pollack and F. Ikram, for the respondent

Keywords: Contracts, Insurance Law, Statutory Accident Benefits, Priority, Statutory Interpretation, Insurance Act, R.S.O. 1990, c. I.8, Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41, Arbitration Act, 1991, S.O. 1991, c. 17, Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund, 2007 ONCA 61, Kingsway General Insurance Company v. Ontario, 2007 ONCA 62, State Farm Mutual Automobile Insurance Company v. TD Home & Auto Insurance Company, 2016 ONSC 6229, Zurich Insurance Company v. Co-Operators General Insurance Company (2008), 62 C.C.L.I. (4th) 207 (Ont. S.C.), R. v. Lombard Insurance Co. of Canada, 2010 ONSC 1770, Gyorffy v. Drury, 2015 ONCA 31, Ontario (Finance) v. Echelon General Insurance Company, 2019 ONCA 629, Kingsway General Insurance Co. v. West Wawanosh Insurance Co. (2002), 58 O.R. (3d) 251 (C.A.), Travelers Insurance Company of Canada v. CAA Insurance Company, 2020 ONCA 382

facts:

This appeal arises from a question about the proper interpretation of the regulation that governs disputes between automobile insurers over which insurer must pay Statutory Accident Benefits (“SABs”) to a motor vehicle accident victim. Section 268 of the Insurance Act creates a priority scheme for determining which insurer must pay SABs to an automobile accident victim. The Motor Vehicle Accident Claims Fund (“the Fund”) ranks last in priority. The Fund is administered by the Minister of Public and Business Service Delivery and Procurement (“the Minister”), who intervened in this appeal.  Priority disputes between different insurers are governed by O. Reg. 283/95, titled “Disputes Between Insurers” (“Regulation 283”). When an insurer who receives an application for SABs fails to comply with its obligations to pay the claimant while any priority dispute is being resolved, this is commonly referred to as “deflection.” The 2010 amendments to Regulation 283 authorize arbitrators to impose sanctions on insurers who improperly deflect claims. Neither the Insurance Act nor Regulation 283 contain any other provision that expressly authorizes arbitrators to order that one insurer pay another insurer’s expenses in situations where s. 2.1(7) does not apply. However, Regulation 283 makes priority dispute arbitrations subject to the Arbitration Act, 1991, which authorizes arbitrators to resolve disputes “in accordance with law, including equity”.

In this case, an arbitrator declined to order that the appellant, Unifund Assurance (“Unifund”) pay the expenses incurred by the respondent, Echelon General Insurance Company (“Echelon”). These expenses, which totalled more than $100,000, included independent adjusting fees, mediation fees, legal costs, and disbursements. The Superior Court of Justice allowed Echelon’s appeal from this decision and held that Echelon was entitled to be reimbursed by Unifund. The judge found that the doctrine of unjust enrichment entitled Echelon to be reimbursed by Unifund “for those reasonable expenses that were incurred for the ultimate benefit of Unifund.”  Unifund appealed.

issues:

1. Does Regulation 283 limit the application of the doctrine of unjust enrichment?
2. Despite the interpretation of Regulation 283, should the Fund nonetheless be entitled to recoup its pre-arbitration expenses?

holding:

Appeal allowed.

reasoning:

1. Yes.

The Court found that the regulatory language supported the arbitrator’s interpretation and weighed against the competing interpretation that was adopted by the appeal judge. That is, the Lieutenant Governor in Council intentionally chose to limit expense reimbursements to the deflection cases to which s. 2.1(7) applied.

First, the Court noted that Regulation 283 does not say that all disputes between insurers arising out of priority disagreements are arbitrable. Rather, s.1 states that all such disputes “shall be settled in accordance with [the] Regulation.” The Court noted that the question it had to answer was whether ordering one insurer to reimburse another for its expenses, in situations where s. 2.1(7) does not apply, is “in accordance with [the] Regulation.” This question can only be answered by considering and interpreting the specific regulatory provisions, after situating them in the broader legislative and regulatory context.

Second, the Court noted that the drafters of Regulation 283 did not entirely ignore the issue of expense reimbursements, as the 2010 amendments to the regulation expressly required insurers who improperly deflect SABs claims to reimburse other insurers for their resulting “legal fees, adjuster’s fees, administrative costs and disbursements.” Thus, if the drafters had meant to allow arbitrators to order reimbursement of these same expenses even in cases where there was no deflection, they could easily have said so. Third, Sharpe J.A.’s observations in Kingsway supported the conclusion that the drafters were acting deliberately.

On the arbitrator and appeal judge’s disagreement about whether it could be inferred that the drafters of Regulation 283 had intentionally limited expense reimbursement orders to deflection cases in furtherance of the policy goal of reducing the cost of priority dispute arbitrations, the Court accepted that both of the competing policy objectives identified by the arbitrator and the appeal judge were ones that plausibly could have been in the minds of the persons who drafted Regulation 238. However, the Court reiterated that its task when interpreting Regulation 283 was to try to identify why the Lieutenant Governor in Council drafted the regulation as it did, not to decide what would be the best policy or reassess the wisdom or fairness of the Lieutenant Governor in Council’s policy choices. In the Court’s view, the available indicators in this case all supported the arbitrator’s conclusion that the Lieutenant Governor in Council intentionally chose to limit expense reimbursements to the deflection cases to which s. 2.1(7) applies. The Court also found plausible the arbitrator’s conclusion that the Lieutenant Governor in Council believed that limiting expense reimbursement would reduce the length and cost of priority arbitrations.

With respect to the arbitrator and the appeal judge’s disagreement about the fairness of making insurers routinely bear their own pre-arbitration expenses, the Court noted that the issue was not, as the appeal judge put it, whether “the stated policy reason that ‘it should all balance out’ is a valid juristic reason for not allowing a claim for reimbursement of expenses in a priority dispute.” Rather, it was the regulation itself that would provide the juristic reason for any resulting enrichment and deprivation, not the underlying policy objective. The Court also did not accept the appeal judge’s argument that if the drafters had been trying to reduce costs, and if they had believed that any unfairness would even out in the long run, they would have done away with the priority scheme altogether. The Court pointed out that the priority scheme was established by s. 268 of the Insurance Act, not the regulation and the persons who drafted Regulation 283 were obliged to work within the confines of the legislative policy choice.

Considering all the factors, the Court concluded that the balance tipped in favour of interpreting Regulation 283 as reflecting a deliberate regulatory policy choice to have insurers ordinarily bear their own pre-arbitration expenses, unless there has been improper deflection of a SABs claim, even if this creates some potential for unfairness in particular cases. The Court noted that the Lieutenant Governor in Council’s decision to single out deflection cases for special treatment strongly implied that they did not expect arbitrators to routinely make reimbursement orders in other cases. Thus, the appeal judge erred in his interpretation of Regulation 283. The Court set aside the appeal judge’s expense reimbursement order and restored the decision of the arbitrator finding that Unifund was not obliged to reimburse Echelon for its pre-arbitration expenses in this case. The Court also set aside the lower courts costs order and granted Unifund its costs of both appeals in the amount of $15,000, all inclusive, payable by Echelon.

The Court declined to answer whether Regulation 283 should be interpreted as implicitly barring arbitrators from invoking equitable principles even in exceptional cases, noting that question was best left to be decided in an appeal where the issue actually arose.

2. The Court did not decide this issue.

The Court held that it would not be appropriate for it to decide the issue in the context of an appeal where the Fund was not a party, and where the issue did not squarely arise. However, the Court noted that even though it has previously found the Fund to be an “insurer” within the meaning of Regulation 283, it has also held that one of the purposes of the regulation is to protect public resources by “ensur[ing] that the Fund is the funder of last resort.” Particularly, the Court stated that nothing in its reasons should be taken as deciding, one way or the other, whether Regulation 283 can or should be interpreted as permitting the Fund to recoup its pre-arbitration expenses, either through arbitration or in the courts, in cases where some other insurer is ultimately found to have priority over a SABs claim.

Schram v. Linwood Management Corporation, 2025 ONCA 337

[Roberts J.A. (Motions Judge)]

Counsel:

M. S. and L.M., acting in person

K. Ley, for the respondent, Huron Green Inc. c/o Linwood Property Management

Keywords: Real Property, Residential Tenancies, Civil Procedure, Leave to Appeal, Extension of Time, Residential Tenancies Act, 2006, S.O. 2006, c. 17, s 64(1), Canadian Charter of Rights and Freedoms, s 15, Rules of Civil Procedure, s 63.02(1)(b), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412, Issasi v. Rozenzweig, 2011 ONCA 112, Pantoja v. Belilla, 2023 ONCA 757, Kaiman v. Graham, 2009 ONCA 77, Matthews v. Algoma Timberlakes Corp., 2010 ONCA 468, North York General Hospital Foundation v. Armstrong (2005), 258 DLR (4th) 85 (Ont. C.A.)

facts:

The moving parties were long-time tenants of a rental house and land in a land lease community owned by Huron Green Inc. c/o Linwood Property Management (“Huron Green Inc.”). For many years, the moving parties had a canvas shed in their backyard. Although this shed was permitted when first erected, the rules of the land lease community changed in 2021 because of safety concerns when in 2018 a canvas shed on another property blew away. Huron Green Inc. gave several notices to the moving parties to remove the canvas shed and advised that they were authorized to put up a different shed. The moving parties refused to do so.

Huron Green Inc. gave the moving parties a notice of termination of their tenancy. Subsequently, the moving parties commenced an action against the responding parties seeking damages of $40,000,000. Huron Green Inc. brought an application before the Landlord and Tenant Board (“LTB”) to terminate the moving parties’ tenancy on the basis that their refusal to remove the canvas shed substantially interfered with its lawful right, privilege or interest pursuant to s. 64(1) of the Residential Tenancies Act, 2006 (“RTA”). The LTB allowed the application. The moving parties appealed to the Divisional Court and their appeal was dismissed.

The moving party tenants sought an extension of time to file: 1) a notice of motion for leave to appeal the March 17, 2025 order of the Divisional Court, which upheld the termination of their tenancy by the LTB; and 2) a notice of appeal of the February 13, 2025 order of Perfetto J. of the Superior Court of Justice which dismissed their action.

issues:

Should the moving parties be granted an extension of time to file their notices of appeal?

holding:

Motion dismissed.

reasoning:

No.

The Court found that the moving parties’ proposed appeals were without merit and would result in prejudice to the responding parties. The Court set out the test for granting an extension of filing leave to appeal: does the justice of the case warrant the extension?  Informing that consideration were the following oft-cited factors: 1) whether the appellant formed an intention to appeal within the deadline for appealing; 2) the length of and explanation for the delay; 3) prejudice to the responding party; and 4) the merits of the proposed appeal. The Court found that the moving parties met the first two criteria but failed to meet the latter two. Lack of merit alone can be a sufficient basis on which to deny the extension of time, particularly when the moving party seeks an extension to file a notice for leave to appeal.

Merits of the appeal

With respect to the motion for leave to appeal the Divisional Court’s order, the moving parties’ main focus of the appeal was that the Divisional Court erred in finding that the moving parties’ rental unit was part of a land lease community as defined under the RTA. In addition to the fact that this argument was not raised before the LTB, the Court found that the moving parties’ rental unit fell squarely within the definition under the RTA and accordingly was meritless. The Court found that the moving parties’ motion for an extension of time to file a notice of appeal from Perfetto J.’s order was similarly without merit. The Court agreed with Perfetto J. that the action raised the same or similar issues that were already determined by or could have been determined by and were within the exclusive jurisdiction of the LTB.

Prejudice to the responding party

The Court found that the safety issue posed by the ongoing presence of the canvas shed on the property for which Huron Green Inc. was responsible constituted prejudice to Huron Green Inc. Although the moving parties advised he had removed the canvas shed in issue because it fell down, he stated his intention to erect another canvas shed. The Court also found that the expenditure of further time and resources by Huron Green Inc. and of time and public resources by a municipal corporation to respond to meritless appeals also constituted prejudice.

Surefire Dividend Capture, LP v. National Liability & Fire Insurance Company (Berkshire Hathaway Specialty Insurance), 2025 ONCA 332

[Zarnett, Monahan and Pomerance JJ.A.]

Counsel:

R. K. Datt and M-P. Nadeau, for the appellant

R. Lester and S. Stieber, for the respondent

G. Healy-Murphy, for the intervener The Honourable Mark Falk (Ret.), in his capacity as U.S. Ancillary Receiver for Broad Reach Capital, LP

Keywords: Contracts, Insurance, Coverage, Rules of Civil Procedure, r. 13.01, Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 52, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, Oshawa Group Ltd. v. Great American Insurance Co. (1982), 132 D.L.R. (3d) 453, 36 O.R. (2d) 424 (C.A.), Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, Corner Brook v. Bailey, 2021 SCC 29, Surefire Dividend Capture, LP v. National Liability & Fire Insurance Company (Berkshire Hathaway Specialty Insurance), 2024 ONCA 644

facts:

The appellant, Surefire Dividend Capture, LP (“SDC”), lost investments of over US$30 million that it had made, or acquired, in a hedge fund called Broad Reach Capital, LP (“BRC”). Unknown to SDC when it decided to do business with BRC, B. S., BRC’s CEO at the relevant time, was operating a fraudulent Ponzi scheme.

SDC brought an action to recover these losses under a fidelity bond (the “Bond”) issued by the respondent National Liability & Fire Insurance Company (“Berkshire”).

The Bond provided, among other things, coverage to SDC for losses due to dishonest or fraudulent acts of an “Employee” and for losses resulting from “Theft of Customer Property by a Registered Representative”. The trial judge found that Ms. S was not SDC’s “Employee” within the meaning of the Bond, nor had she stolen “Customer Property” as defined in the Bond. Notwithstanding that SDC had made it known to Berkshire, in the lead up to the issuance of the Bond, that it was seeking coverage for the risk of theft and fraud by “sub-advisors” including BRC, the trial judge concluded that the Bond was not worded to allow SDC to claim on the bases it asserted. Although BRC was named in the Bond as a “Subsidiary”, he noted that no claim was made by it or by SDC on BRC’s behalf. He dismissed the action.

issues:

1. Did the trial judge err in law by considering a defence that had not been pleaded?
2. Did the trial judge err in his interpretation of Insuring Agreement A(1)?
3. Did the trial judge err in declining to find coverage under Insuring Agreement A(4)?

holding:

Appeal dismissed.

reasoning:

1. No.

The Court did not agree with SDC’s position that trial judge violated the Rodaro principle of deciding a case on a basis that was not pleaded by giving effect to a defence that Insuring Agreement A(1) did not cover losses resulting from a fraud committed by Ms. S, who was not SDC’s employee but was an officer of BRC.

The Court noted that the onus is on the insured to prove its claim falls within the grant of coverage. Thus, it was SDC’s onus to prove that its claim fell within the coverage granted in Insuring Agreement A(1). To do that, it had to prove that Ms. S. met the definition of Employee of the Insured in the Bond. The statement of defence of Berkshire clearly denied SDC’s assertion that there was coverage under Insuring Agreement A(1) and that Ms. S was not employed by SDC and did not satisfy the definition of Employee.

The defence that Ms. S was not an Employee of SDC, and that she did not meet the definition of Employee so as to allow SDC to make a claim for coverage under Insuring Agreement A(1) was clearly on the table. The trial judge did not err by considering it. The principle in Rodaro was not violated.

2. No.

The Court held that the trial judge did not err in his interpretation of Insuring Agreement A(1) in the Bond and applied the appropriate standard of review. The Court noted that contractual interpretation generally attracts a deferential standard, as it involves mixed fact and law, and found that the Ledcor exception—applying a correctness standard to standard form contracts—did not apply here due to the presence of a party-specific factual matrix and non-standard bond elements such as Rider 13. The Court disagreed with the appellant’s argument that the trial judge made an extricable legal error, finding instead that the trial judge considered the bond as a whole and appropriately rejected the claim that BRC’s status as a “Subsidiary” entitled the appellant to recover for its own losses caused by BRC’s employee.

The Court agreed with the trial judge’s conclusion that Ms. S, the individual responsible for the loss, did not qualify as an “Employee” under the bond’s terms because she held no position with the appellant. It noted that accepting the appellant’s interpretation would require impermissibly reading additional language into the bond. The Court also rejected the appellant’s reliance on pre-bond communications and external case law, finding those materials did not support a different interpretation. Finally, the Court accepted the trial judge’s view that BRC was separately insured under the bond and that the appellant could have made a claim on BRC’s behalf but chose not to. The Court concluded that the trial judge’s interpretation was reasonable and rejected this ground of appeal.

3. No.

The Court held that the trial judge did not err in concluding that the appellant’s claim did not fall within the scope of Insuring Agreement A(4). The Court noted that, consistent with Sattva, contractual interpretation requires a practical, common-sense approach grounded in the intent of the parties and the surrounding circumstances. While the appellant argued that common sense supported coverage, it failed to demonstrate any reversible error in the trial judge’s application of the bond’s defined terms.

The Court agreed with the trial judge’s framing of the two key issues: the nature of the wrongful act and the ownership of the property at the time of the loss. It held that it was open to the trial judge to interpret Insuring Agreement A(4) as requiring an actual unlawful taking—such as larceny or embezzlement—of Customer Property, rather than a broader form of dishonesty like pre-transfer misrepresentations. The Court further accepted the trial judge’s finding that the funds, once transferred from the appellant to BRC in exchange for a partnership interest, became the property of BRC, not the appellant or its investors. Accordingly, the loss did not involve “Customer Property” within the meaning of the bond. The Court found no error and rejected this ground of appeal.

North v. Bayerische Motoren Werke AG, 2025 ONCA 340

[Fairburn A.C.J.O., Coroza and Sossin JJ.A.]

Counsel:

A. Dimson, S. Cuberovic, J. Smith and D. Wingfield, for the appellants

P. J. Pliszka, Z. I. Maladwala and H. Fawzy, for the respondents

Keywords: Torts, Negligence, Product Liability, Negligent Design, Negligent Manufacture, Failure to Warn, Civil Procedure, Class Proceedings, Certification, Representative Plaintiffs, Damages, Pure Economic Loss, Class Proceedings Act, 1992, S.O. 1992, c. 6.1, 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R. 85, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, D. & F. Estates Ltd. v. Church Commissioners for England, [1989] A.C. 177, [1988] 2 All E.R. 992, Murphy v. Brentwood District Council, [1991] 1 A.C. 398, [1990] 2 All E.R. 908 (H.L.)., Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, Carter v. Ford Motor Co. of Canada, 2021 ONSC 4138, n Fernandez Leon v. Bayer Inc., 2023 ONCA 629, Coles v. FCA Canada Inc., 2022 ONSC 5575, Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2020 ONSC 1647, Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, Stone v. Wellington County Board of Education (1999), 120 O.A.C. 296 (Ont. C.A.)

facts:

Ms. N and Mr. R (the “plaintiffs”) commenced a proposed class action grounded in negligence against BMW. Each plaintiff acquired a BMW equipped with an N20 engine. Each contended that, several years after acquiring their BMW, their vehicle suddenly lost power as a result of the failure of their vehicle’s chain assembly system, resulting in catastrophic damage to the vehicle’s engine. The plaintiffs sold their vehicles “as is” instead of repairing them, given the high repair costs quoted to them. The plaintiffs sought to represent a class of some 66,600 current and former owners and lessees of BMW vehicles, model years 2012 to 2015, with allegedly defective N20 engines.

The Fresh as Amended Statement of Claim that was before the certification judge alleged that the class vehicles were dangerous and defective goods; that BMW’s negligence in designing, engineering, testing and manufacturing the class vehicles resulted in damage to the plaintiffs and other class members. This included the costs of averting the real, substantial and imminent danger of personal injury or death by replacing the vehicles. It was also alleged that BMW owed the plaintiffs and class members a duty to warn consumers of serious safety risks associated with the vehicles, and had they been warned they would not have leased or purchased them. The certification judge declined to certify the duty to warn claim and limited the scope of the negligent design/manufacturing claim. He certified the causes of action of negligent design/manufacturing “resulting in a loss reflected in the cost of repairing damage incurred to an engine in a Class Vehicle, or the cost of repairing an engine in a Class Vehicle to avert imminent damage to persons or property” and declined to award costs given the split success on the motion.

The plaintiffs appealed the certification decision and BMW cross appealed. 

issues:

Appeal:

1. Whether Ms. N has pleaded losses recoverable in negligence (even though she incurred no repair or disposal costs).
2. Whether the certification judge erred in not certifying the failure to warn claim.
3. Whether the certification judge erred in failing to certify the claim for breach of the duty to compensate for shoddy and dangerous goods.
4. Whether the certification judge erred in making a distributive costs award.

Cross appeal:

5. Whether the certification judge erred in not dismissing the certification motion because:
   a. he found that the plaintiffs had failed to establish some basis in fact that a design or manufacturing defect was common among class vehicles;

   b. the plaintiffs failed to plead losses recoverable in negligence since they sought recovery of the replacement value of the vehicles?

   c. there was no adequate representative plaintiff, since Mr. R did not incur a compensable loss (contrary to the certification judge’s finding that he had incurred a recoverable disposal cost) and, as the motion judge found, Ms. N had no viable cause of action?

6. Whether, in the alternative, the certification judge erred in not further narrowing the class to exclude those owners and lessees who paid engine repair costs after the failure of a class vehicles’ timing chain system?

holding:

Appeal dismissed. Cross-appeal allowed.

reasoning:

Standard of review:

The Court found that that the certification judge made errors of law reviewable on a correctness standard. The Court pointed to its recent decision in Lilleyman v. Bumble Bee Foods LLC, reaffirming that the standard of review on appeal from a certification motion depends on the nature of the issue: decisions involving questions of law are reviewable on a standard of correctness, whereas determinations of fact or mixed fact and law are reviewable on a standard of palpable and overriding error.

To avoid repetition, the Court grouped the substantive issues raised by the parties as follows:

1. Actual property damage or physical injury

On this group of claims, the Court was not persuaded by the plaintiffs’ submissions.

In arguing that the plaintiff, Ms. N, had a cause of action and that the certification judge erred in narrowing the certified causes of action, the plaintiffs claimed that they had pleaded actual property damage, specifically damage to the N20 engines caused by the failure of the timing chain system. In other words, this was not just a case of pure economic loss. The Court found no error in the certification judge’s conclusion, which rested upon the Fresh as Amended Statement of Claim, that neither the vehicle nor the rest of the N20 engine were “other property” with respect to the timing chain system. In other words, the certification judge found that this was not a traditional negligence claim but rather a claim for pure economic loss and the Court agreed.

(a) Pleading of replacement value (versus cost of repairs): on its cross-appeal, BMW submitted that the only loss pleaded by the plaintiffs was the cost of replacement vehicles and that as a result, the certification judge was wrong in finding that they had implicitly pleaded repair costs. BMW argued that since the replacement cost of vehicles was not recoverable as a matter of law, then the plaintiffs had pleaded no recoverable losses. The Court disagreed. The Court noted that although the plaintiffs did not amend the Fresh as Amended Statement of Claim to include repair costs, the certification judge did not make a reversible error in reading the pleading generously to include it. According to the Court, the test under s.5(1)(a) of the Class Proceedings Act is similar to that on a motion to strike and in that case, the Supreme Court has directed that pleadings are to be read “as generously as possible”: Atlantic Lottery Corp. Inc. The focus is on whether the pleadings are sufficient to place the defendant on notice of the essence of the claim and whether the facts, as pleaded, would support at least one arguable cause of action. The Court noted that there was no prejudice to BMW.

(b) Costs of repairing damage incurred to an engine: on its cross-appeal, BMW submitted that repair costs incurred after the failure of a class vehicles’ timing chain system are not legally recoverable and so the persons incurring those expenses should not be included in the class definition. According to BMW, the certification judge erred in doing so due to an incorrect interpretation and application of the complex structure theory. The Court agreed that the certification judge erred by certifying claims resulting in “a loss reflected in the cost of repairing damage incurred to an engine in a Class Vehicle” and defining the class to include those who “incurred repair expenses relating to damage incurred” to the vehicles. The Court noted that if the vehicle, or the rest of the N20 engine, is not “other property”, as the certification judge correctly found, then repair costs incurred as a result of an engine breakdown would be the costs of repairing the defective product itself. The Court pointed to Maple Leaf Foods for the proposition that the costs of repairing a defective structure or product are only recoverable if they are necessary to avert danger and that costs exceeding what is necessary to remove the danger is not recoverable through a negligence claim.

2. Breach of the duty to compensate for shoddy and dangerous goods

The Court agreed with BMW that the certification judge did not err in “striking” the claim for the “duty to compensate for shoddy and dangerous goods.” The Court noted that the certification judge correctly recognized that, in accordance with Winnipeg Condominium and Maple Leaf Foods, the cost of repairing a dangerous product that presents a real and substantial danger is legally cognizable damage. The certification judge was prepared to certify one cause of action: “the claim of negligent design and/or manufacture of the timing chain systems in the Class Vehicles resulting in a loss reflected in the cost of repairing damage incurred to an engine in a Class Vehicle, or the cost of repairing an engine in a Class Vehicle to avert imminent damage to persons or property” (emphasis in original). Thus, he certified the claim the plaintiffs say was “struck”. The Court found that the certification judge was correct that recovery is not possible, as a matter of law, where there are no repair or disposal costs and that the plaintiffs had pointed to no case law where plaintiffs were permitted to recover for notional or speculative repair costs.

3. Duty to warn

The Court found that the certification judge did not err in reading the pleading. The Court noted that since a duty to warn claim sounds in negligence, a plaintiff must plead each of the elements of a negligence claim. The Court noted that, as the certification judge recognized, it is not alleged that if the plaintiffs and class members had been warned that they would have averted actual physical harm or actual property damage. Rather, it is alleged that had they been warned they would have not bought a defective vehicle. The plaintiffs argued that the finding that “replacement” implicitly includes repairs also implies that their claim must be read as asserting that, if warned, they would have still purchased or leased the vehicles but would have repaired them. The Court agreed with the certification judge that this was not a viable cause of action and that in essence the claim is for the diminished value of unrepaired cars, which is not recoverable.

4. Suitability of the representative plaintiff

The Court held that the certification judge was correct in finding that the plaintiff, Ms. N was not a suitable representative plaintiff because she has no valid claim. BMW submitted that the plaintiff, Mr. R, was in the same position. BMW took issue with the certification judge’s reasons which found that since Mr. R was charged a fee for inspection and diagnoses of his engine’s problem, he had incurred “reasonably foreseeable costs in discarding the product”. Thus, according to the certification judge, he had a recoverable loss in tort under the Maple Leaf Foods/Winnipeg Condominium principle of recovery and was a proper representative plaintiff. The Court disagreed, noting that recovery of disposal costs “is confined to the cost of removing a real and substantial danger” to “the physical integrity of person or property”: Maple Leaf Foods, at para. 55. In other words, disposal costs, like repair costs, are recoverable if they are incurred to avert real and substantial danger. The Court noted that since Mr. R claimed that his engine was “catastrophically damaged”, it was difficult to see how the danger was not already averted: the car was no longer driveable and so any safety threat was already removed. Accordingly, even if the fee that Mr. R incurred could somehow be said to be related to disposal of the car, it was nonetheless not recoverable as a “cost of removing the danger.” Therefore, he too had no recoverable loss and could not sustain a cause of action in negligence.

The Court reiterated that the lack of a suitable representative plaintiff was fatal to the certification of the action. The Court referred to its previous decision in Stone v. Wellington County Board of Education which outlined that a representative plaintiff is not a mere nominee and the continuation of the action where the representative plaintiff is definitively shown to have no claim “…would be inconsistent with the clear legislative requirement that the representative plaintiff be anchored in the proceeding as a class member…”

5. Some basis in fact

The Court rejected BMW’s argument that the certification judge’s findings were inconsistent. The Court held that it was open for the certification judge to find, based on the record before him, that once the class was narrowed to vehicles with repairs related to a malfunctioning timing chain systems, there was some basis for demonstrating on a class-wide basis that the design of the timing chain system was capable of malfunctioning in the way that was alleged.

The Court found it unnecessary to address the plaintiffs’ submission that the certification judge erred in principle in making a distributive costs award forcing them to bear their own costs despite success on the certification motion given its conclusion that the certification order should be set aside.  The Court dismissed the appeal, allowed the cross-appeal, and set aside the order below. The parties were invited to make written submissions on the costs below.

Windrift Adventures Incorporated v. CTV-Bell Media Inc., 2025 ONCA 346

[Gillese, Gomery and Pomerance JJ.A.]

Counsel:

E. Gillespie, for the appellant

C. Martins and E. Romano, for the respondents

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Burjoski v. Waterloo Region District School Board, 2024 ONCA 811, Bent v. Platnick, 2020 SCC 23

facts:

The appellant operated a dog-sledding business. T. P. and A. S. were spouses who, together with T. P,’s mother, owned the appellant corporation.

The respondent CTV-Bell Media Inc. produces and broadcasts a documentary news program, W5, that features investigative stories. The other respondents are individuals who were involved in the broadcast aired on February 5, 2022, entitled “Dogs in Distress” (the “Episode”). The Episode reported on the public debate, controversy, and calls for reform surrounding the dog-sledding industry in Canada and the conditions endured by sled dogs.

The appellant was included as one of several dog-sledding operations profiled in the Episode. It had been involved in legal proceedings relating to the removal of its dogs by animal welfare authorities and the Ontario Animal Care Review Board’s finding that its dogs were in distress within the meaning of the Provincial Animal Welfare Services Act. It sued CTV for defamation.

On the anti-SLAPP motion to dismiss the claim brought by CTV, the parties agreed the applicable legal test was that in 1704604 Ontario Ltd. v. Pointes Protection Association. The appellant conceded that the Episode and related the Tweet, Facebook Post and the Video constitute an expression on a matter of public interest (the “Expression”).

The motion judge made two Findings on the Motion. First, she found the appellant had not met its burden under s. 137.1(4)(a) of the Courts of Justice Act to show the Action had substantial merit and the respondents had no valid defence to its claim. Second, she found, pursuant to s. 137.1(4)(b), that the harm the appellant suffered as a result of the Expression was not sufficiently serious that the public interest in permitting the Action to continue outweighed the public interest in protecting the Expression.   

issues:

1. Did the motion judge err in their Findings?
2. Did the motion judge err in dismissing the Action without finding that the Action was abusive?

holding:

Appeal dismissed.

reasoning:

1. No.

The Court held that the motion judge made no error in finding the appellant failed to establish that its defamation action had substantial merit or that the respondents lacked valid defences. The motion judge correctly applied the test for defamation from Bent v. Platnick and found that most of the impugned content did not refer to the appellant, and that the one item that did—the Episode—did not convey defamatory meaning, as it fairly reported on legal proceedings and did not suggest guilt of animal cruelty. The Court also noted that the claim did not include allegations regarding the reputation of the appellant’s employee, and it agreed with the motion judge’s conclusion that the appellant failed to displace the respondents’ defences of justification, fair comment and responsible communication.

The Court further agreed that the motion judge made no error in concluding that the public interest in protecting the impugned expression outweighed the appellant’s claim of harm. The Court noted that the motion judge reasonably found the alleged harm to the appellant—economic loss due to its employee’s emotional distress—to be weakly supported and insufficiently serious to override the public interest in expression on a matter of public interest. Accordingly, the Court upheld the motion judge’s dismissal of the action under s. 137.1 of the Courts of Justice Act.

2. No.

The Court noted that the appellant raised a second issue at the oral hearing of the appeal, based on the Court’s recent decision in Burjoski v. Waterloo Region District School Board. It submitted that Burjoski “developed” the law in Pointes and makes it mandatory that a proceeding be found to be “abusive” before it can be dismissed pursuant to s. 137.1.

The Court held that Burjoski did not alter the legal framework established by the Supreme Court in Pointes. The Court disagreed with the appellant’s submission that Burjoski changed the applicable standard under s. 137.1 of the Courts of Justice Act by introducing a requirement that proceedings be “abusive.” The Court noted that it is well-established that a lower appellate court cannot overrule or modify Supreme Court precedent. It further explained that the use of the term “abusive” in Burjoski was merely descriptive shorthand for proceedings that unduly limit expression on matters of public interest, and not a reformulation of the test. Accordingly, the Pointes framework remains the governing authority.

SHORT CIVIL DECISIONS

Munir v. Garg, 2025 ONCA 334

[Zarnett, Monahan and Madsen JJ.A.]

Counsel:

Z. A. M., acting in person

M. K. G. and SG., acting in person

K. Stavrakos, for the respondents Town of Milton and Milton Fire Department

Keywords: Municipal Law, Land Use Planning, Bylaws, Enforcement, Short Term Rentals, Jurisdiction, Charter of Rights and Freedoms, ss. 7, 15, Fire Protection and Prevention Act, 1997, S. O. 1997, c. 4, Municipal Act 2001, S.O 2001 c. 25, Residential Tenancies Act, 2006, S. O. 2006, c. 17

Henderson v. Wang, 2025 ONCA 335

[Roberts J.A. (Motions Judge)]

Counsel:

S.H., acting in person

C. Crisman-Cox, for the responding party, W.W.

Keywords: Wills and Estates, Civil Procedure, Appeals, Extension of Time, Rules of Civil Procedure, r. 61.04(1), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Issasi v. Rozenzweig, 2011 ONCA 112, Pantoja v. Belilla, 2023 ONCA 757, 828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412

Elzayat v. Rogers Communications, 2025 ONCA 336

[Zarnett, Monahan and Madsen JJ.A.]

Counsel:

H.E., acting in person

L.A. Frattolin and S.C. Kolla, for the respondent

Keywords: Employment Law, Human Rights, Discrimination, Civil Procedure, Limitation Periods, Discoverability, Incapacity, Summary Judgment, Appeals, Panel Reviews, Evidence, Transcripts, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), Hillmount Capital Inc. v. Pizale, 2021 ONCA 364

De Longte v. De Longte, 2025 ONCA 338

[Roberts J.A. (Motions Judge)]

Counsel:

A. Lei and S. Misra, for the moving party intervener, J.M.

M.S.DL, acting in person

L. Yates, for the respondent, C.M.DL

I. Matthews, appearing as amicus curiae

Keywords: Family Law, Professional Negligence, Lawyers, Civil Procedure, Appeals, Ineffective Assistance of Counsel, Intervenors, Rules of Civil Procedure, rr. 1.04, 13.01, Family Law Rules, O. Reg. 114/99, r. 25(19), Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Butty v. Butty (2009) 96 O.R. (3d) 713 (C.A.), SMTCL Canada Inc. v. Master Tech Inc., 2017 ONCA 291, W.(D.) v. White (2004), 189 O.A.C. 256 (C.A.), 8150184 Canada Corp. v. Rotisseries Mom’s Express Ltd., 2016 ONCA 115

Law Society of Ontario v. Colangelo, 2025 ONCA 341

[Rouleau, van Rensburg and Gomery JJ.A.]

Counsel:

A. M. Pinto and A. Luey, for the appellant

J. Melnick, for the respondent

Keywords: Regulated Professions, Lawyers, Professional Discipline, Civil Procedure, Appeals

Adelaide Metcalfe (Township) v. Strathroy-Caradoc (Municipality), 2025 ONCA 342

[Hourigan, Madsen and Pomerance JJ.A.]

Counsel:

P. Lombardi and M. Polvere, for the appellant

C. Brandow and J. Petrella, for the respondent

K. Coulter and B. Watterton, for the Ontario Land Tribunal

Keywords: Costs

2853753 Ontario Inc. v. Prive Developments Corp., 2025 ONCA 339

[Huscroft, George and Favreau JJ.A.]

Counsel:

R. B. Cohen and J. Jackson, for the appellants

H. Scher, for the respondents

Keywords: Contracts, Duty of Good Faith, Penalties, Civil Procedure, Settlements Agreement, Enforcement, Applications, Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7

McKenzie-Barnswell v. Xpert Credit Control Solutions Inc., 2025 ONCA 344

[Lauwers, Zarnett and Pomerance JJ.A.]

Counsel:

J. Rosekat and V. Ford, for the appellants

O. Vinton, for the respondent

Keywords: Civil Procedure, Appeals, Addendum, Damages, Post-Judgment Interest, Courts of Justice Act, RSO 1990, c C42, s 129

Knauff v. Ontario (Human Rights Tribunal), 2025 ONCA 345

[Zarnett J.A. (Case Management Judge)]

Counsel:

N. Papageorge, for the moving party

Z. Green, for the responding party His Majesty the King as Represented by the Ministry of Natural Resources and Forestry

M. Noble, for the responding party Human Rights Tribunal of Ontario

Keywords: Human Rights, Civil Procedure, Leave to Appeal, Intervenors, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 61.03.1(1), 61.03.1(15), West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910, Davis v. Aviva General Insurance Company, 2024 ONCA 944

Huang v. Mundulai, 2025 ONCA 343

[Rouleau, van Rensburg and Gomery JJ.A.]

Counsel:

A. O. M., acting in person

T. Majeed, for the respondent

Keywords: Family Law, Parenting, Equalization of Net Family Property, Family Law Act, R.S.O. 1990, c. F.3, s. 10.1(3)

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