In Matiko John v. Barrick Gold Corporation, the Court dismissed the appeal and upheld the motion judge’s decision to decline jurisdiction over a claim of human rights abuses and torture at a mine in Tanzania owned by a Barrick Gold Corporation subsidiary. The Court agreed that Ontario had little connection to the dispute, that key evidence and witnesses were located in Tanzania and could not be compelled in Ontario, and that there was insufficient evidence to conclude that the Tanzanian legal system could not provide a fair trial.

In Canadian National Railway Company v. Kitchener (City), the Court dismissed CN’s appeal from a summary judgment order that struck its coal tar contamination claims against Hogg as an abuse of process. CN had previously commenced a 1989 Action advancing the same continuing contamination claims, which was dismissed for delay. The Court held that CN could not resurrect those claims in a 2014 Action, as doing so would undermine the integrity of the administration of justice.

In Natario v. RBC Insurance Company of Canada, the order appealed from that denied the insurer leave to amend its pleading to add a civil fraud defence was a final order because it foreclosed that defence. The Court therefore had jurisdiction to hear the appeal and the motion to quash the appeal was dismissed.

In Dale v. Toronto Real Estate Board, the Court dismissed an appeal from a dismissal of a motion to set aside a consent dismissal order.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Matiko John v. Barrick Gold Corporation, 2026 ONCA 248

Keywords: Torts, Negligence, Public International Law, Human Rights, Private International Law, Conflict of Laws, Jurisdiction, Civil Procedure, Forum Non Conveniens, Appeals, Fresh Evidence, Nevsun Resources Limited v. Araya, 2020 SCC 5, Club Resorts Limited v. Van Breda, 2012 SCC 17, Breeden v. Black, 2012 SCC 19, Haaretz.com v. Goldhar, 2018 SCC 28, Chevron Corp. v. Yaiguaje, 2015 SCC 42, Young v. Tycoe, 2008 ONCA 709, Pedaya v. 261109 Ontario Inc., 2025 ONCA 657, Garcia v. Tahoe Resources Inc., 2017 BCCA 39, Vedanta Resources PLC v. Lungowe, [2019] UKSC 20, [2019] 2 W.L.R. 1051, R. v. Palmer, [1980] S.C.R. 759

Canadian National Railway Company v. Kitchener (City), 2026 ONCA 257

Keywords: Summary Judgment, Abuse of Process, Continuing Tort, Relitigation, Contamination, Environmental Protection Act, R.S.O. 1980, c. 141, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Rylands v. Fletcher, [1868] UKHL 1, L.R. 3 H.L. 330, Canadian National Railway Co. v. Kitchener (City), 2014 ONSC 4929, Canadian National Railway Company v. Kitchener (City), 2015 ONCA 131, Davies v. Clarington (Municipality), 2023 ONCA 376, Pine Glen Thorold Inc. v. Rolling Meadows Land Development Corporation, 2025 ONCA 604, SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP, 2024 ONCA 946, Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, Albert Bloom Limited v. London Transit Commission, 2021 ONCA 74, Zhang v. Davies, 2021 BCCA 196, Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), Sorbam Investments Ltd. v. Litwack, 2022 ONCA 551, 2089322 Ontario Corporation v. Des Roches, 2025 ONCA 17, Mintz v. Wallwin, 2009 ONCA 199, 2027707 Ontario Ltd. v. Richard Burnside & Associates Ltd., 2021 ONSC 5746

Natario v. RBC Insurance Company of Canada, 2026 ONCA 263

Keywords: Contracts, Insurance, Coverage, Defences, Fraud, Misrepresentation, Civil Procedure, Amending Pleadings, Appeals, Jurisdiction, Orders, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C. 43, s.19, s. 6, Insurance Act, R.S.O. 1990, c. I.8, s. 132, Rules of Civil Procedure, r. 25, Wong v. Aviva Insurance Company of Canada, 2024 ONCA 874, Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), 385925 Ontario Ltd. v. American Life Insurance (1985), 51 O.R. (2d) 382 (H.C.), Ontario (Securities Commission) v. McLaughlin, 2009 ONCA 280, Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), A.A. v. Macri, 2010 ONCA 99, Teefy Developments (Bathurst Glen) Limited v. Sun, 2021 ONCA 870, Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, Horani v. Manulife Financial Corporation, 2023 ONCA 51

Dale v. Toronto Real Estate Board, 2026 ONCA 252

Keywords: Civil Procedure, Offers to Settle, Enforcement, Orders, Setting Aside, Striking Pleadings, Abuse of Process, Rules of Civil Procedure, rr. 2.1.01, 49.09, Deschenes v. Lalonde, 2020 ONCA 304, Pine Glen Thorold Inc. v. Rolling Meadows Land Development Corporation, 2025 ONCA 604

Short Civil Decisions

Hud v. West Nipissing (Municipality), 2026 ONCA 260

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Ontario College of Teachers v. Bouragba, 2021 ONCA 8

World Financial Solutions Inc. v. 2573138 Ontario Ltd., 2026 ONCA 259

Keywords: Civil Procedure, Appeals, Panel Review, Security for Costs, Extension of Time

Community Trust Company v. He, 2026 ONCA 261

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Default Judgments, Setting Aside, Zeifman Partners Inc. v. Aiello, 2020 ONCA 33 

CIVIL DECISIONS

Matiko John v. Barrick Gold Corporation, 2026 ONCA 248

[Fairburn A.C.J.O., Simmons and Trotter JJ.A.]

Counsel:

J. Fiorante, W.C. Wanless and R. Mallovy, for the appellants

S.G. Frankel, K.E. Thomson and A. Visvanatha, for the respondents

P. Champ and V. Sharma, for the intervenor Amnesty International Canada

Keywords: Torts, Negligence, Public International Law, Human Rights, Private International Law, Conflict of Laws, Jurisdiction, Civil Procedure, Forum Non Conveniens, Appeals, Fresh Evidence, Nevsun Resources Limited v. Araya, 2020 SCC 5, Club Resorts Limited v. Van Breda, 2012 SCC 17, Breeden v. Black, 2012 SCC 19, Haaretz.com v. Goldhar, 2018 SCC 28, Chevron Corp. v. Yaiguaje, 2015 SCC 42, Young v. Tycoe, 2008 ONCA 709, Pedaya v. 261109 Ontario Inc., 2025 ONCA 657, Garcia v. Tahoe Resources Inc., 2017 BCCA 39, Vedanta Resources PLC v. Lungowe, [2019] UKSC 20, [2019] 2 W.L.R. 1051, R. v. Palmer, [1980] S.C.R. 759

facts:

In their actions, the appellants claimed damages for personal injuries or the wrongful death of family members, against the respondent, Barrick Gold Corporation (“Barrick”), arising from the actions of Tanzanian Police Force (“TPF”) personnel who provided armed security at a mine (the “Mine”) located in a remote northern region of the United Republic of Tanzania. The Mine was owned by a Tanzanian company, North Mara Gold Mine Limited (“NMGML”). Barrick is a Canadian multinational mining company and the indirect majority shareholder of NMGML. The appellants advanced claims against Barrick premised on direct parent company liability and negligence, as well as aiding and abetting violations of customary international law prohibitions against extrajudicial killings and torture.

On its motion to dismiss or stay the action, Barrick raised the issues of both jurisdiction simpliciter and forum non conveniens. It asserted that the only forum with any connection to the issues and where the majority of the witnesses were located was Tanzania.

The motion judge dismissed the actions for lack of jurisdiction. Concerning jurisdiction simpliciter, the motion judge found that although Barrick had an office in Toronto and therefore carried on business in Ontario, the subject-matter of the claim was disconnected from Ontario, and any presumption of jurisdiction was therefore rebutted. Concerning the forum non conveniens analysis, the motion judge concluded that the Tanzanian bar and the Tanzanian judiciary were capable of conducting a fair, efficient, and just trial and that given the remoteness of Ontario from the matters at issue, and the fact that crucial witnesses would inevitably be absent from an Ontario trial because of the inability of Tanzania to respond to letters of request, it was incumbent on him to decline jurisdiction. The appellants asserted that the motion judge made multiple factual and legal errors in both his jurisdiction simpliciter and forum non conveniens analyses and as a result failed to properly consider the issue of access to justice in the context of a transnational human rights case. They also sought to introduce fresh evidence on appeal.

issues:

1. Did the motion judge err in finding that Barrick’s corporate head office is in Vancouver, rather than Toronto, and misapprehend the legal and factual significance of Barrick’s global human rights and security policies?

2. Did the motion judge err in applying the legal test for assumed jurisdiction when presence-based jurisdiction was established?

3. Did the motion judge err in applying a summary judgment “best evidence” standard to a forum non conveniens motion?

4. Did the motion judge err in recharacterizing the actions as negligence claims and minimizing or failing to take account of the human rights context and customary international law claim for aiding and abetting torture and extra-judicial killing?

5. Did the motion judge improperly assess the real risk of unfairness to the appellants of proceeding in Tanzania and disregard their evidence about limited access to legal resources and sources of proof?

6. Should the appellants’ fresh evidence motion be admitted on appeal?

holding:

Appeal and motion dismissed.

reasoning:

1. No. The Court found no error in the motion judge’s findings. Assuming, without deciding, that the motion judge erred, the Court found that the motion judge made other findings that supported his conclusions about the remoteness of Ontario from the matters at issue, and that analysis favoured Tanzania. The regulatory filings and other communications about Barrick’s global policies of sustainability did not bring the actual management, supervision, and security measures at the Mine into Ontario. Significantly, no member of Barrick’s Board of Directors resided in Ontario and further, no one identified a single, truly relevant witness from Ontario. The factors that drove the motion judge’s forum non conveniens analysis were convenience and expense on one hand, and fairness and efficiency on the other. In the absence of a demonstrated reversible error in relation to those issues or a failure to consider other factors relevant to the forum non conveniens analysis in the case, the Court was not persuaded that any error in identifying the location of Barrick’s global headquarters and corporate head office would constitute a palpable and overriding error.

2. No. The Court concluded that the motion judge properly articulated the forum non conveniens test and concluded that Barrick had discharged its burden with respect to the test. The motion judge did not make any error of law or any error in determining the relevant facts that would justify appellate interference.

3. No. The Court was not persuaded that any unfairness accrued to the appellants as a result of the impugned statements or that they amounted in any way to a reversible error that justified appellate interference. By using the phrase “or at least some of the evidence that would be forthcoming at trial”, the motion judge made it clear that he was not applying the summary judgment evidentiary standard, which required that parties put their best evidentiary foot forward. The fact that the motion judge commented on the appellants’ failure to adduce any eyewitness testimony on the motion did not impact his conclusion on any issue central to his forum non conveniens analysis.

4. No. The Court found that the motion judge’s statement that the appellants’ actions were essentially negligence claims was made in the context of emphasizing that factual causation would be a central issue at trial that required the testimony of multiple witnesses. Important evidence would be missing in relation to their human rights claims and claims founded on direct parent liability and negligence if the trial proceeded in Ontario. The motion judge was entitled to accept the evidence that the Tanzanian judiciary was open to new and innovative causes of action. Moreover, the Court did not find that the motion judge prejudged the appellants’ human rights claims. Rather, he made the point that Barrick’s position concerning how the alleged incidents had unfolded was starkly different than that of the appellants, that issues of justification and causation were involved, and that Barrick should not be deprived of the ability to call witnesses that will advance its defence.

5. No. The motion judge was satisfied based on the record before him, that the laws, the judiciary, the bar and the justice system of Tanzania overall presented no insurmountable hurdle to a fair trial. The appellants’ allegations of prejudice, political intimidation, and a lack of independence on the part of the Tanzanian judiciary were not based on the kind of cogent evidence needed to establish real risk.

Further, the Court did not accept the appellants’ argument that the motion judge ignored the evidence of their expert concerning the unlikelihood of the appellants obtaining adequate legal representation to prosecute their actions. The motion judge was aware of the appellants’ evidence but considered it highly significant that there was no evidence that any of the appellants had approached any Tanzanian lawyers or legal aid clinics to see what legal services might be available. The Court found nothing unreasonable about that finding or the motion judge’s conclusions that Barrick would be severely hampered in its defence if the trial were to proceed in Ontario. Barrick could not compel, and would likely not persuade, some of the most important witnesses for its defence to testify or produce documents in Ontario.

6. No. The Court declined to admit the proposed fresh evidence. The Court found that at best, the various exhibits attached to the law clerk’s affidavit were hearsay. Even assuming that they were capable of being admitted into evidence, the Court concluded that they lacked the relevance, credibility and cogency necessary to approach the threshold of being capable of having affected the outcome of the proceeding.

Canadian National Railway Company v. Kitchener (City), 2026 ONCA 257

[Paciocco, George and Monahan JJ.A.]

Counsel:

M. Beeforth, D. Awad and N. Tzannidakis, for the appellant

L. Finney and L. Kelley, for the respondent

Keywords: Summary Judgment, Abuse of Process, Continuing Tort, Relitigation, Contamination, Environmental Protection Act, R.S.O. 1980, c. 141, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Rylands v. Fletcher, [1868] UKHL 1, L.R. 3 H.L. 330, Canadian National Railway Co. v. Kitchener (City), 2014 ONSC 4929, Canadian National Railway Company v. Kitchener (City), 2015 ONCA 131, Davies v. Clarington (Municipality), 2023 ONCA 376, Pine Glen Thorold Inc. v. Rolling Meadows Land Development Corporation, 2025 ONCA 604, SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP, 2024 ONCA 946, Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, Albert Bloom Limited v. London Transit Commission, 2021 ONCA 74, Zhang v. Davies, 2021 BCCA 196, Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), Sorbam Investments Ltd. v. Litwack, 2022 ONCA 551, 2089322 Ontario Corporation v. Des Roches, 2025 ONCA 17, Mintz v. Wallwin, 2009 ONCA 199, 2027707 Ontario Ltd. v. Richard Burnside & Associates Ltd., 2021 ONSC 5746

facts

In 1989, Canadian National Railway Company (“CN”) commenced an action against Hogg, the City of Kitchener and the Public Utilities Commission of Kitchener (“PUC”), alleging that CN’s property had become and continued to be contaminated with coal tar waste from Hogg’s property (“1989 Action”). In 2014, Myers J. of the Superior Court of Justice dismissed the 1989 Action for delay. In 2015, the Court dismissed CN’s appeal and the Supreme Court of Canada subsequently dismissed CN’s application for leave to appeal.

After the 1989 Action was dismissed, and while the appeal from that order was outstanding, CN commenced a new action against Hogg, the City and the PUC (“2014 Action”). The motion judge granted Hogg’s motion for summary judgment and dismissed CN’s claims relating to coal tar contamination as an abuse of process. He found that the allegations with respect to benzene were entirely separate from the coal tar claims in the 1989 Action and that “[t]he issues surrounding benzene contamination do not give rise to the same trial fairness concerns that the allegations about coal tar did.”

The motion judge rejected Hogg’s argument that the coal tar contamination claims were res judicata. He reasoned that because a final determination on the merits was not made in the 1989 Action, this doctrine did not apply. He was satisfied, however, that the coal tar contamination claims amounted to an abuse of process and accordingly dismissed them.

issues:

1. What is the standard of review?

2. Did the motion judge fail to properly consider and apply the law on continuing causes of action?

3. Did the motion judge err by failing to recognize that the trial fairness concerns relating to the 1989 Action were not present in the 2014 Action?

4. Did the motion judge err by failing to give sufficient weight to CN’s expert evidence?

5. Did the motion judge err in concluding that the dismissal of the 1989 Action precluded the coal tar claims in the 2014 Action as an abuse of process?

6. Did the motion judge err in concluding that to permit the coal tar claims in the 2014 Action to proceed would bring the administration of justice into disrepute?

holding:

Appeal dismissed.

reasoning:

1. The Court found that on either standard of review applicable to findings of mixed fact and law or a question of law, the appeal failed. There was no need to address any discrepancies, since the motion judge committed no palpable and overriding errors. His finding that CN’s claim for continuing coal tar contamination was an abuse of process was correct.

2. No. The Court rejected CN’s argument that the motion judge failed to distinguish between the current claims, which it said were based on new causes of action arising from Hogg’s continuing wrongful acts, and its prior claims, which were not. In the 1989 Action, CN specifically pleaded that coal tar was continuing to migrate onto its property from Hogg’s property. The problem for CN was that Myers J. dismissed that claim, concluding that CN could not recover damages. To allow CN to resurrect this claim in a subsequent action would do an end run around Myers J.’s decision and be an abuse of process. The motion judge was right to dismiss the continuing coal tar contamination claim on this basis. 

CN argued further that because Myers J. dismissed the 1989 Action for delay, and did not adjudicate it on the merits, there could be no abuse of process in seeking relief for the coal tar that had migrated since 2012. The Court failed to see how CN’s continuing coal tar contamination claims were not exhausted. It acknowledged that Zhang v. Davies was distinguishable in that the first action in that case was not dismissed for delay but resolved after a trial. However, that did not necessarily mean the 1989 Action in this case was not exhausted upon its dismissal. The continuing tort claims were exhausted in the 1989 Action. The subsequent 2014 Action in respect of the same claims was therefore an abuse of process.

3. No. In dismissing the 1989 Action, Myers J. held that CN’s delays and failure to preserve evidence would render a trial of the action unfair. There was simply no basis to conclude that Myers J. thought the fairness concerns he identified applied only to the claims for the historical coal tar migration. Had he thought the continuing coal tar migration claims could be tried fairly, he would have made this distinction and allowed those claims to proceed as opposed to wholly dismissing the action.

CN’s argument that Hogg could be liable for continuing coal tar migration even if it did not cause the deposit of the contaminants in the first place was a red herring. The issue was not whether Hogg could be liable for continuing migration, but rather whether a trial on such claims would be an abuse of process given Myers J.’s earlier conclusion that such a trial would be unfair. As the motion judge observed, Hogg could no longer crossclaim against the City and PUC for dumping coal tar on its property because of the delay. This rendered a trial on the continuing coal tar claims unfair.

4. No. The issue of whether coal tar continued to migrate from Hogg’s property, and the rate of migration, was of no moment on the summary judgment motion. The Court repeated that the continuing coal tar claims were dismissed in the 1989 Action, which exhausted that claim. The weight to be given to an expert opinion was within the motion judge’s discretion and was entitled to deference on appeal. There was no basis for appellate intervention.

5. No. Any insistence on strict identicality ignored the similarities between the two actions at issue in this appeal and was an interpretation that was incompatible with the flexible nature of the abuse of process doctrine. The two actions were identical in that they both advanced claims for continuing coal tar migration. Just as it did in the 1989 Action, CN pleaded in the 2014 Action that coal tar was migrating onto its property from Hogg’s property and causing damage. Even if not identical, the claims in the two actions covered the same harm and were not materially different. Accordingly, the motion judge did not err in finding that the dismissal in the 1989 Action precluded the continuing coal tar claims in the 2014 Action.

6. No. CN’s argument that there were no finality concerns in this case was rejected. As the motion judge observed, CN was seeking to advance claims that Myers J. had already found could not be tried fairly and to accept CN’s argument would obviously undermine the finality of that decision.

Further, in failing to advance the 1989 Action in a timely fashion, CN was clearly the author of its own misfortune. Because of its delay in advancing the 1989 Action, it was not possible to identify the source and location of the original coal tar deposit. Any consideration of unfairness to CN must be weighed against the unfairness to Hogg, which had lost the ability to claim against the original polluter. While Hogg was also responsible for not diligently advancing its crossclaim and counterclaim in the 1989 Action, this must be considered in the wider context of the 1989 Action, which was commenced by CN. CN had the opportunity to have its continuing coal tar claims tried on the merits, but as Myers J. noted, it delayed for 25 years and failed to preserve evidence, rendering it impossible to have the claims adjudicated fairly.

Finally, the cover letter sent when serving the 2014 Action suggested that had the 1989 Action been allowed to proceed, the 2014 Action would not have been necessary. It revealed the 2014 Action as a poorly veiled attempt by CN to resurrect arguments the court had already rejected.

Natario v. RBC Insurance Company of Canada, 2026 ONCA 263

[Paciocco, Thorburn and Dawe JJ.A.]

Counsel:

M. Rotondo, for the respondent/moving party, MN

D. Zarek and A. S. Reyes, for the appellants/responding parties, RBC Insurance Company of Canada and Aviva Insurance Company of Canada

Keywords: Contracts, Insurance, Coverage, Defences, Fraud, Misrepresentation, Civil Procedure, Amending Pleadings, Appeals, Jurisdiction, Orders, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C. 43, s.19, s. 6, Insurance Act, R.S.O. 1990, c. I.8, s. 132, Rules of Civil Procedure, r. 25, Wong v. Aviva Insurance Company of Canada, 2024 ONCA 874, Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), 385925 Ontario Ltd. v. American Life Insurance (1985), 51 O.R. (2d) 382 (H.C.), Ontario (Securities Commission) v. McLaughlin, 2009 ONCA 280, Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), A.A. v. Macri, 2010 ONCA 99, Teefy Developments (Bathurst Glen) Limited v. Sun, 2021 ONCA 870, Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, Horani v. Manulife Financial Corporation, 2023 ONCA 51

facts

The moving party, MN, brought a motion to quash the insurer’s appeal from an order denying them leave to amend their statement of defence to add a civil fraud defence. The underlying action arose after MN suffered catastrophic injuries in 2012 when she fell in the insureds’ home and later commenced proceedings against the insurers under s. 132 of the Insurance Act following a consent dismissal of the original action against the insureds.

For several years, the insureds falsely maintained that the accident occurred on a staircase, before admitting in 2019 that their evidence had been fabricated to conceal unpermitted renovations. The insurers sought to rely on these misrepresentations to deny coverage and, following developments in the law recognizing civil fraud as a distinct defence, moved in 2025 for leave to amend their pleadings. The motion judge dismissed that request on the basis of non-compensable prejudice, prompting the insurers’ appeal and this motion to quash on jurisdictional grounds.

issue:

Was the order denying leave to amend the pleadings to add a civil fraud defence a final order?

holding:

Motion dismissed.

reasoning:

Yes.

The Court held that the order was final because it conclusively deprived the insurers of the ability to advance a distinct substantive defence. Applying the test from Hendrickson, the Court emphasized that an order is final where it determines the real matter in dispute, or finally disposes of a substantive right, rather than merely deciding a collateral or procedural matter. Here, the refusal of leave to amend did more than affect the format or “labelling” of the case: it foreclosed the insurers from raising civil fraud at all.

The Court noted that it is settled law that an order refusing leave to amend to add a new substantive claim or defence is a final order. It also reiterated that where an order conclusively disposes of an issue raised by way of defence, or precludes a party from asserting that defence, it deprives that party of a substantive right and is therefore final. That principle applied squarely here.

In reaching that conclusion, the Court rejected the moving party’s argument that the proposed amendment merely changed how the existing issues would be argued. Civil fraud was not duplicative of the insurers’ existing policy-based and good faith defences. It is a separate affirmative defence with its own constituent elements—false representation, knowledge or recklessness, reliance, and resulting loss—and, under the Rules, fraud must be specifically pleaded with particulars to avoid surprise at trial. Because the motion judge’s order barred the insurers from pleading that defence, it finally determined their right to rely on it.

Dale v. Toronto Real Estate Board, 2026 ONCA 252

[Fairburn A.C.J.O., Rouleau and Wilson JJ.A.]

Counsel:

E. Karp, acting as agent for the appellant

K. Fisher and J. Beesley, for the respondent

Keywords: Civil Procedure, Offers to Settle, Enforcement, Orders, Setting Aside, Striking Pleadings, Abuse of Process, Rules of Civil Procedure, rr. 2.1.01, 49.09, Deschenes v. Lalonde, 2020 ONCA 304, Pine Glen Thorold Inc. v. Rolling Meadows Land Development Corporation, 2025 ONCA 604

facts

The appellant, S.M., appealed from an order dismissing his motion to set aside the consent dismissal of his action and to permit it to continue as if there had been no accepted offer to settle. He also appealed the dismissal of an action he commenced in 2023 and the costs order. The events underlying this appeal date back to 2009. In 2009, the appellant, along with others, brought two actions against 24 defendants, of which the Toronto Real Estate Board (TREB) was one. In 2013, minutes of settlement were entered into settling the second action. This was followed by a consent order dismissing that action. In 2015, the appellant assigned his interest in the first action to another plaintiff, M.D. The first action was subsequently dismissed for delay.

In March 2023, the appellant served his motion to set aside the consent dismissal of the second action and to permit it to continue as if there had been no accepted offer to settle pursuant to r. 49.09 of the Rules. On the same day, he issued a statement of claim (the third action) claiming the same set of relief as was sought in the second action. The defendants in the third action were the same as those in the second action. The statement of claim in the second action was attached as an appendix to the statement of claim in the third action.

On November 1, 2023, a case conference judge directed that TREB’s objections to the motion proceeding be resolved prior to the hearing of the appellant’s motion. His order provided that the issues to be addressed were TREB’s proposed motion to strike based on the lack of standing and abuse of process and, in the alternative, an order for security for costs.

At the motion hearing on December 13, 2024, the motion judge invited the appellant to deliver written submissions on whether his motion and the third action should be dismissed pursuant to r. 2.1.01 of the Rules.

Following receipt of these submissions, the motion judge determined that, on their face, the appellant’s motion and the third action should not be summarily dismissed pursuant to r. 2.1. He therefore determined that he should proceed to consider TREB’s motion on the merits based on the materials filed in support of that motion. Based on the materials filed, the motion judge concluded that the appellant’s motion was a “transparent attempt to relitigate the issues in the first action (which was dismissed) and in the second action (which was settled).” As well, he dismissed the third action as an abuse of process, finding it was substantially the same as the prior actions.

issue:

Did the motion judge err in going beyond the issues that were to be addressed pursuant to the case conference judge’s order and deciding the appellant’s motion on the merits?

holding:

Appeal dismissed.

reasoning:

No. The motion judge did not err in going beyond the issues that were to be addressed pursuant to the case conference judge’s order and deciding the appellant’s motion on the merits. The motion judge dealt squarely with the issues he was to address pursuant to the case conference judge’s order. It is well established that, where a settlement is reached, the interests of finality prevail unless there are contractual problems such as fraud, misrepresentation, duress, undue influence, unconscionability or mutual or unilateral mistakes. There were no such issues in this case.

SHORT CIVIL DECISIONS

Hud v. West Nipissing (Municipality), 2026 ONCA 260

[Paciocco, Thorburn and Dawe JJ.A.]

Counsel:

LH, acting in person

R. Muscolino, for the respondents, The Corporation of the Municipality of West Nipissing, The West Nipissing Police Services Board, LL, CS, RSP, NR, PM and FS

A. Barber, for the respondents, CA and 10306398 Canada Ltd.

L. Dart, for the respondents, His Majesty the King in Right of Ontario, DVD, CF, RN, GW, DB, JV, EPL, JP, BC and John Doe

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Ontario College of Teachers v. Bouragba, 2021 ONCA 8

World Financial Solutions Inc. v. 2573138 Ontario Ltd., 2026 ONCA 259

[George, Copeland and Wilson JJ.A.]

Counsel:

G. Cadogan, for the moving parties, 2573138 Ontario Ltd. and MA

M.K. Dhaliwal, for the responding parties, EB, Sieta & Pikes Development Limited and 2664358 Ontario Limited

T. Arndt and M.K. Dhaliwal, for the responding party, 2868395 Ontario Limited

D. Waldman, for the responding party, World Financial Solutions Inc.

Keywords: Civil Procedure, Appeals, Panel Review, Security for Costs, Extension of Time

Community Trust Company v. He, 2026 ONCA 261

[Paciocco, Thorburn and Dawe JJ.A.]

Counsel:

YH, acting in person

J. Catenacci, for the respondent

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Default Judgments, Setting Aside, Zeifman Partners Inc. v. Aiello, 2020 ONCA 33