In D.F. v. R.W.F., the Court allowed the appeal, in part, concerning a father’s request for unsupervised parenting time with his adult child with Down Syndrome. While the order requiring supervised access was upheld, the order was varied to include an automatic review that might result in the father getting unsupervised access in the future.

In Huether v. Sharpe, a claim against a municipality for failure to properly inspect the construction of a home in 1986 or to follow up thereafter on the basis that the building permit had not been formally “closed” was dismissed as being out of time as a result of the 15-year ultimate limitation period set out in s. 15(2) of the Limitations Act. The Court dismissed the appeal and remarked that the Legislature had this exact type of claim in mind when it enacted the ultimate limitation period.

In 12175622 Canada Ltd. v. KSV Restructuring Inc., the Court allowed the appeal, finding that the motion judge erred in holding that liability for property taxes rested with the purchaser of assets rather than the vendor. The case turned on a provision in the Municipal Act which provides that liability for property tax arises on January 1 of every year, not when the property tax bill is sent.

In Democracy Watch v. Ontario (Integrity Commissioner), the Court dismissed an appeal by a non-profit seeking standing to challenge administrative decisions made regarding registered lobbyists. The Court agreed with the motion just that the appellant had no standing and the issues it sought to raise were not justiciable.

In Correa v Valstar Homes, the purchaser of a property sent closing funds 9 minutes too late. The vendor treated the contract at an end, but offered to close if the purchaser paid an additional $100,000. The purchaser did so, then sued for the $100,000, arguing the APS was ambiguous, that the $100,000 was a penalty or that it agreed to the payment under economic durees. The Court dismissed the appeal and agreed with the motion judge that the time of the essence clause permitted the vendor to terminate for the purchaser’s breach and the demand for extra $100,000 was not a penalty, nor paid under duress. A new contract was formed.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

D.F. v. R. W. F., 2025 ONCA 129

Keywords: Family Law, Parenting, Child of the Marriage, Disabled Children, Civil Procedure, Amicus Curiae, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 2(1) & 16.1, Child Support Guidelines, O. Reg 391/97, s. 7, Criminal Code, R.S.C. 1985, c. C-46, s. 127, J.F.R. v. K.L.L., 2024 ONCA 520, C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, N.S. v. R.M., 2019 ONCA 685, Ursic v. Ursic (2006), 32 R.F.L. (6th) 23 (Ont. C.A.), A.C.V.P. v. A.M.P., 2022 ONCA 283, Barendregt v. Grebliunas, 2022 SCC 22

Huether v. Sharpe , 2025 ONCA 140

Keywords: Torts, Negligence, Liability of Public Authorities, Municipalities, Duty of Care, Duty to Monitor, Novel Duties, Anns/Cooper Test, Civil Procedure, Limitation Periods, Ultimate Limitation Period, Continuous Acts or Omissions, Limitations Act, 2002, S.O. 2002 c. 24, Sched. B, ss. 4, 15(2), 15(6)(a), 24(5)1, Courts of Justice Act, R.S.O. 1990, c. C-43, s. 117, Limitations Act, R.S.A. 2000, c. L-12, s. 3(3)(a), Limitations of Actions Act, S.N.S. 2014, c. 35, s. 8(3)(a), Ontario Building Code, O. Reg. 583/83, Alberta Rules of Court, Alta. Reg. 124/2010, r. 9.9, Huether v. Sharpe, 2024 ONSC 1987, Breen v. Lake of Bays (Township), 2022 ONCA 626, Wong v. Lui, 2023 ONCA 272, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, R. v. Breault, 2023 SCC 9, MediaQMI inc. v. Kamel, 2021 SCC 23, Canaccord Capital Corp. v. Roscoe, 2013 ONCA 378, York Condominium Corp. No. 380 v. Jay-M Holdings Ltd., 2007 ONCA 49, leave to appeal refused, [2007] S.C.C.A. No. 154, Seidel v. Kerr, 2003 ABCA 267, Hamilton v. Quaker Oats Co. (1919), 46 O.L.R. 309 (H.C.), Hole v. Chard Union, [1894] 1 Ch. 293, McIntosh v. Parent (1924), 55 O.L.R. 552 (C.A.), Smart v. South Saskatchewan Hospital Centre, 60 D.L.R. (4th) 8 (Sask. C.A.), Roberts v. City of Portage La Prairie, [1971] S.C.R. 481, Jalla & Ors v. Shell International Trading and Shipping Company & Anor, [2021] EWCA Civ 63, unset Inns Inc. v. Sioux Lookout (Municipality), 2012 ONSC 437, aff’d 2012 ONCA 416, Bowes v. Edmonton (City of), 2007 ABCA 347, Rothfield v. Manolakos, [1989] 2 S.C.R. 1259, Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), Cooper v Hobart, 2001 SCC 79, Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 410, leave to appeal refused, [2021] S.C.C.A. No. 302, Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), Alberta Law Reform Institute, Limitations (Edmonton: Alberta Law Reform Institute, 1989), Salmond on Torts, 15th ed.

Skymark Finance Corporation v. Mahal Venture Capital Inc., 2025 ONCA 141

Keywords: Contracts, Interpretation, Municipal law, Property Tax, Bankruptcy and Insolvency, Receiverships, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Municipal Act, 2001, S.O. 2001, c. 25 s. 307(3), s. 349(1), Credit Union Central of Ontario Limited v. Heritage Property Holdings Inc., 2008 ONCA 167, Schreyer v. Schreyer, 2011 SCC 35, Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2019 ONCA 508, Grant Thornton Limited et al. v. 1902408 Ontario Ltd, 2022 ONSC 2011, Lloyd W. Houlden, Geoffrey B. Morawetz and Janis P. Sarra, Bankruptcy and Insolvency Law of Canada, loose-leaf (2025-Rel. 2), 4th ed. (Toronto: Thomson Reuters, 2009)

Correa v. Valstar Homes (Oakville Sixth Line) Inc., 2025 ONCA 156

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Time of the Essence, Remedies, Civil Procedure, Summary Judgment, King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, Whalen v. Hilier (2001), 53 O.R. (3d) 550 (C.A.), Gnyś v. Narbutt, 2016 ONSC 2594, 3 Gill Homes Inc. v. 5009796 Ontario Inc. (c.o.b. Kassar Homes), 2024 ONCA 6, Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051, Maher v. Great Atlantic & Pacific Co. of Canada, 2010 ONCA 415, More v. 1362279 Ontario Ltd. (c.o.b. Seiko Homes), 2023 ONCA 527, Kawartha Capital Corp. v. 1723766 Ontario Ltd., 2020 ONCA 763, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Housen v. Nikolaisen, 2002 SCC 33, Eurig Estate (Re), [1998] 2 S.C.R. 565

Democracy Watch v. Ontario (Integrity Commissioner), 2025 ONCA 153

Keywords: Administrative Law, Judicial Review, Public Law, Lobbying, Civil Procedure, Standard of Review, Standing, Justiciability, Lobbyists Registration Act, 1998, S.O. 1998, c. 27, ss. 3.4, 17.1-17.12 Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 10, Lobbyists’ Code of Conduct and the Lobbying Act, R.S.C. 1985, c. 44 (4th Supp.), Members’ Integrity Act, 1994, S.O. 1994, c. 38, s. 23, Conflict of Interest Act, S.C. 2006, c. 9, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, Democracy Watch v. Canada (Attorney General), 2021 FC 613, British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27, Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042, Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, Stewart et al. v. Office of the Independent Police Review Director et al., 2014 ONSC 6150 (Div. Ct.), Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265, Minister of Justice (Can.) v. Borowski, [1981] 2 S.C.R. 575, Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, Delta Air Lines Inc. v. Lukács, 2018 SCC 2, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Canadian Elevator Industry Education Program v. Nova Scotia (Elevators and Lifts), 2016 NSCA 80, Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, Democracy Watch v. Canada (Attorney General), 2020 FCA 28, Democracy Watch v. Canada (Attorney General), 2018 FCA 194, Democracy Watch v. Canada (Attorney General), 2022 FCA 208, Democracy Watch v. Canada (Attorney General), 2024 FCA 158, Ecology Action Centre v. Nova Scotia (Environment and Climate Change), 2023 NSCA 12, Lorne M. Sossin and Gerard Kennedy, Boundaries of Judicial Review: The Law of Justiciability in Canada, 3rd ed. (Toronto: Thomson Reuters Canada, 2024)

Short Civil Decisions

Skrak v. Skrak, 2025 ONCA 143

Keywords: Family Law, Spousal Support, Equalization of Net Family Property, Civil Procedure, Retrial, Pre-Judgment Interest, Post-Judgment Interest

Isard Estate v. Gunn, 2025 ONCA 139

Keywords: Wills and Estates, Residue Clause, Codicil, Remedies, Rectification

Ruck v. Mississauga (City), 2025 ONCA 147

Keywords: Constitutional Law, Civil Procedure, Notice of Constitutional Issue, Courts of Justice Act, RSO 1990, c. C.43, s 109

Martel v. Ottawa (City), 2025 ONCA 148

Keywords: Civil Procedure, Summary Judgment

Jodi L. Feldman Professional Corporation v. Foulidis, 2025 ONCA 150

Keywords: Contracts, Solicitor and Client, Civil Procedure, Appeals, Perfection, Extension of Time, Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, Issai v. Rosenzweig, 2011 ONCA 112, Boucher et al. v. Public Accountants Council for the Province of Ontario et al. (2004), 71 O.R. (3d) 291(CA), Cohen v. Kealey & Blaney (1985), 26 C.P.C. (2d) 211 (Ont. C.A.)

Brown v. Weirfoulds LLP, 2025 ONCA 152

Keywords: Employment Law, Constructive Dismissal, Human Rights, Discrimination, Torts, Defamation, Conspiracy, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Human Rights Code, R.S.O. 1990, c. H.19, Law Society of Ontario, Rules of Professional Conduct

Ezidiegwu v. Manorgate Homes (Whitby) Inc., 2025 ONCA 154

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Summary Judgment

CIVIL DECISIONS

D.F. v. R. W. F., 2025 ONCA 129

[Lauwers, Brown and Coroza JJ.A.]

Counsel:

G. S. Campbell, for the appellant

J. Blackwood, for the respondent

V. Naik, appearing as amicus curiae

Keywords: Family Law, Parenting, Child of the Marriage, Disabled Children, Civil Procedure, Amicus Curiae, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 2(1) & 16.1, Child Support Guidelines, O. Reg 391/97, s. 7, Criminal Code, R.S.C. 1985, c. C-46, s. 127, J.F.R. v. K.L.L., 2024 ONCA 520, C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, N.S. v. R.M., 2019 ONCA 685, Ursic v. Ursic (2006), 32 R.F.L. (6th) 23 (Ont. C.A.), A.C.V.P. v. A.M.P., 2022 ONCA 283, Barendregt v. Grebliunas, 2022 SCC 22

facts:

This appeal concerned a final order denying the father unsupervised parenting time with his adult child, who was under parental charge. The parties, who separated in 2019, have a son, A, who is 22 years old and has Down Syndrome. The mother sought sole decision-making and a restraining order after the father repeatedly breached temporary orders by failing to return A to her care. The trial judge found that A met the definition of “child of the marriage” under s. 16.1 of the Divorce Act, but under J.F.R. v. K.L.L., the court could not presume incapacity without evidence. The father was denied unsupervised parenting time, and supervised visits were left entirely to the mother’s discretion. The court declined to order a Voice of the Child report, finding it unnecessary given A’s cognitive age.

issues:

1. Did the trial judge err by making a final order without ascertaining A’s views or preferences?
2. Did the trial judge err by imposing a parenting order that was too restrictive and effectively removed the father from A’s life?

holding:

Appeal allowed, in part.

reasoning:

1. No.

The Court found that the requirement to ascertain A’s views and preferences was met through fresh evidence from clinical psychologist Dr. J.H.G. and amicus curiae, V. Naik. A case management judge appointed amicus and directed an assessment of A’s ability to express his wishes regarding parenting arrangements. Dr. J.H.G.’s report indicated that A’s speech clarity was poor, and while he expressed emotions about his father, his verbalizations were difficult to fully comprehend. The report concluded that further probing would likely cause frustration or distress. Given this, the Court held that A’s capacity to express his preferences had been properly evaluated, and the trial judge’s order was appropriate.

2. Yes, in part.

a. Did the record support supervised access?

The Court rejected the father’s submission that there was no basis for supervised access. The trial judge’s decision was firmly supported by the record, including the father’s repeated breaches of court orders and failure to return A to the mother’s care, despite explicit orders requiring him to do so. The father had been criminally charged under s. 127 of the Criminal Code for failing to obey a court order and was found in contempt of court for his conduct during prior family proceedings.

Additionally, the trial judge cited specific incidents demonstrating the father’s inability to prioritize A’s well-being. In one instance, the father sent A alone on a bus to the mother’s home without her knowledge, creating a serious safety risk. In another, he stood by while A became visibly distressed during a parenting exchange, failing to intervene or ease the situation. The trial judge found that these incidents reflected a lack of insight into A’s needs and an inability to shield him from parental conflict, supporting the conclusion that unsupervised parenting time was not in A’s best interests.

b. Should there be a review mechanism for altering the terms of the supervision order and/or permitting unsupervised parenting time in the future?

While the Court upheld the necessity of supervised parenting time, it found that the trial judge erred in failing to include a review mechanism. A will never “age out” of the order due to his disability, meaning that without a built-in review process, the father could be permanently denied unsupervised parenting time, even if circumstances changed. This outcome, the Court held, conflicted with the maximum contact principle under s. 16(6) of the Divorce Act, which encourages children to have as much time with both parents as is consistent with their best interests.

The Court acknowledged that parenting restrictions may be necessary to protect A, but emphasized that they should not be indefinite without an opportunity for reconsideration. Given the father’s prior non-compliance, the Court found that a structured review mechanism—rather than an automatic right to unsupervised parenting—was the appropriate remedy. The Court remitted the matter to the trial judge to craft a review process, requiring that a reassessment take place within 12 months. Crucially, the father would not be required to demonstrate a material change in circumstances to trigger this review, ensuring a fair and ongoing evaluation of the parenting arrangement.

The Court also provided guidance on the legal framework for parenting orders involving adult children with disabilities. It reiterated the key principles in J.F.R. v. K.L.L., emphasizing that courts must not presume incapacity for adult children without specific evidence. Additionally, it outlined key procedural safeguards: (1) notice to the adult child and (2) independent legal representation. In this case, the involvement of amicus curiae and Dr. J.H.G. satisfied these requirements.

Huether v. Sharpe, 2025 ONCA 140

[Fairburn A.C.J.O., Copeland and Monahan JJ.A.]

Counsel:

D. Zacks, J. Lloyd and R. Wycherley, for the appellant

P. Reinitzer and D. A. Morin, for the respondents

P. E.F. Martin, for the interveners, Ontario Building Officials Association and Ontario Large Municipalities Chief Building Officials

Keywords: Torts, Negligence, Liability of Public Authorities, Municipalities, Duty of Care, Duty to Monitor, Novel Duties, Anns/Cooper Test, Civil Procedure, Limitation Periods, Ultimate Limitation Period, Continuous Acts or Omissions, Limitations Act, 2002, S.O. 2002 c. 24, Sched. B, ss. 4, 15(2), 15(6)(a), 24(5)1, Courts of Justice Act, R.S.O. 1990, c. C-43, s. 117, Limitations Act, R.S.A. 2000, c. L-12, s. 3(3)(a), Limitations of Actions Act, S.N.S. 2014, c. 35, s. 8(3)(a), Ontario Building Code, O. Reg. 583/83, Alberta Rules of Court, Alta. Reg. 124/2010, r. 9.9, Huether v. Sharpe, 2024 ONSC 1987, Breen v. Lake of Bays (Township), 2022 ONCA 626, Wong v. Lui, 2023 ONCA 272, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, R. v. Breault, 2023 SCC 9, MediaQMI inc. v. Kamel, 2021 SCC 23, Canaccord Capital Corp. v. Roscoe, 2013 ONCA 378, York Condominium Corp. No. 380 v. Jay-M Holdings Ltd., 2007 ONCA 49, leave to appeal refused, [2007] S.C.C.A. No. 154, Seidel v. Kerr, 2003 ABCA 267, Hamilton v. Quaker Oats Co. (1919), 46 O.L.R. 309 (H.C.), Hole v. Chard Union, [1894] 1 Ch. 293, McIntosh v. Parent (1924), 55 O.L.R. 552 (C.A.), Smart v. South Saskatchewan Hospital Centre, 60 D.L.R. (4th) 8 (Sask. C.A.), Roberts v. City of Portage La Prairie, [1971] S.C.R. 481, Jalla & Ors v. Shell International Trading and Shipping Company & Anor, [2021] EWCA Civ 63, unset Inns Inc. v. Sioux Lookout (Municipality), 2012 ONSC 437, aff’d 2012 ONCA 416, Bowes v. Edmonton (City of), 2007 ABCA 347, Rothfield v. Manolakos, [1989] 2 S.C.R. 1259, Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), Cooper v Hobart, 2001 SCC 79, Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 410, leave to appeal refused, [2021] S.C.C.A. No. 302, Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), Alberta Law Reform Institute, Limitations (Edmonton: Alberta Law Reform Institute, 1989), Salmond on Torts, 15th ed.

facts:

The Respondents alleged that the Appellant, the Corporation of the Township of McMurrich Monteith (the “Township”), failed to properly supervise the construction of a dwelling (the “Dwelling”) that was built on a residential property in the Township between 1986-1987. The Respondents purchased the property in October 2021 and then discovered significant defects in the Dwelling’s foundation. The Respondents commenced an action against the Appellant, arguing that the defects had resulted from its negligence in supervising the Dwelling’s construction and failing to conduct further inspections.

The Appellant moved for summary judgment on the basis that it issued the building permit for the Dwelling (the “Permit”) in 1986 and construction was completed in 1987, arguing that the claim was barred by the ultimate limitation period in s. 15(2) of the Limitations Act, 2002 (the “Act”). The motion judge dismissed the Appellant’s motion for summary judgment, finding that the Appellant’s negligence was ongoing and continuous.

issues:

1. Did the motion judge err in concluding that the alleged negligence of the Appellant was a “continuing act or omission”, and that the Respondents’ claim was not barred by s. 15(2) of the Act?
2. Did the motion judge err in finding that the Appellant had a “duty to monitor” open building permit files without undertaking a duty of care analysis?

holding:

Appeal allowed.

reasoning:

1. Yes.

A “continuing act or omission” requires a succession or repetition of actionable conduct on the part of a defendant. The Court found that no such successive or repetitive conduct was pleaded or identified by the Respondent in this case. The Court found that the Appellant treated the Permit as if it were closed since at least February 1988. Accordingly, any negligence on the part of the Appellant had already occurred and was complete by that date.

The motion judge did not address this issue directly, but instead focused on whether the Permit had been properly closed. There was some uncertainty if the Permit had ever been officially “closed” or not. The Court held that whether the Permit was actually closed or was simply thought to be closed, was not the point. The key point was that there was no difference in the subsequent behavior of the Appellant, which regarded the file as dormant.

The Court explained that the mere allegation that the defendant has some generalized ongoing duty to the plaintiff is insufficient to toll the running of the ultimate limitation period, absent some successive or repeated actionable conduct on the part of the defendant. The Court also held that the claim that the Appellant had a “duty to monitor” open permit files does not constitute a “continuing act or omission” within the meaning of s. 15(6)(a) of the Act.

The Court was of the opinion that this was the type of situation that s. 15(2) of the Act was meant to prevent, namely, to avoid litigation over latent defects in buildings constructed decades in the past. The Court held that this was not a situation where there was repeating actionable conduct that mitigated concerns over stale evidence. The Court explained that it was clear that the Legislature’s intention was to balance the plaintiff’s right to sue with the defendant’s need for finality.

2. No.

The Court held that finding that the motion judge erred in concluding that the alleged negligence of the Appellant was a “continuing act or omission”, and that the Respondents’ claim was not barred by s. 15(2) of the Act was sufficient to allow the appeal. However, the Court still wanted to clarify the nature of the analysis that would be required before recognizing a “duty to monitor” open building permits, in order to provide guidance to future courts.

The Court stated that the duty to monitor recognized by the motion judge was novel. There is a recognized duty of care on a municipality to conduct inspections of buildings under construction in a non-negligent manner. However, the basis of that duty is that if the municipality has made the policy decision to inspect, it should be bound to implement this decision with the care that would be expected of an ordinary, reasonable and prudent municipality in the same circumstances. The Court held that the motion judge’s parameters of the “duty to monitor” clearly went beyond the existing common law duty regarding the conduct of inspections. The Court explained that before recognizing a novel duty, the court is required to undertake a duty of care analysis. The analysis has two stages, the first stage requires the recognition of a prima facie duty of care through the application of a proximity and foreseeability analysis. The second stage is whether there are residual policy reasons for why a duty of care should not be recognized in the circumstances. The Court made no comment on whether it would or would not be appropriate to recognize a duty to monitor in a future case but noted that the motion judge erred by recognizing this novel duty without regard to the well-established legal framework.

The appeal was allowed, the motion judge’s order was set aside and the Respondents’ action against the Appellant was dismissed as being statute barred by s. 15(2) of the Act.

Skymark Finance Corporation v. Mahal Venture Capital Inc., 2025 ONCA 141

[Paciocco, Monahan and Wilson JJ.A.]

Counsel:

C. Prophet and H. Fisher, for the appellant MNP Ltd., in its capacity as Receiver of 12175622 Canada Inc. and GPM Food Inc.

C. Burr, for the respondents KSV Restructuring Inc., in its capacity as Receiver of Mahal Venture Capital Inc. and Golden Miles Food Corporation

G. Daley, for the respondent City of Brantford

Keywords: Contracts, Interpretation, Municipal law, Property Tax, Bankruptcy and Insolvency, Receiverships, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Municipal Act, 2001, S.O. 2001, c. 25 s. 307(3), s. 349(1), Credit Union Central of Ontario Limited v. Heritage Property Holdings Inc., 2008 ONCA 167, Schreyer v. Schreyer, 2011 SCC 35, Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2019 ONCA 508, Grant Thornton Limited et al. v. 1902408 Ontario Ltd, 2022 ONSC 2011, Lloyd W. Houlden, Geoffrey B. Morawetz and Janis P. Sarra, Bankruptcy and Insolvency Law of Canada, loose-leaf (2025-Rel. 2), 4th ed. (Toronto: Thomson Reuters, 2009)

facts:

This appeal raised the issue of who, as between the vendor and the purchaser, was liable for the payment of outstanding municipal taxes in the context of a sale by a receiver of assets in respect of which an approval and vesting order was granted.

The Debtors owned a flour mill property and were placed into receivership, with KSV Restructuring Inc. (“KSV”) acting as receiver. Prior to the sale of the Debtors’ assets, the City informed KSV that the Property had not been properly assessed for tax purposes and that omitted tax notices for prior years would be issued following a reassessment by the Municipal Property Assessment Corporation (“MPAC”). KSV proceeded with a sale process, entering into an asset purchase agreement (the “APA”) with the Purchaser. The sale was approved by an Approval and Vesting Order (the “AVO”), and the transaction closed on May 18, 2022. At closing, KSV paid approximately $167,000 in property taxes as disclosed on tax certificates but did not account for the anticipated omitted taxes. In November 2022, the City issued omitted tax bills totaling $1,091,423 for prior years. The Purchaser disputed liability for these taxes, arguing they arose before closing and remained the responsibility of the Debtors. KSV reserved $1,500,000 from the sale proceeds pending determination of liability. In January 2024, a receiver was appointed over the Purchaser’s assets, MNP.

The motion judge found that the purchaser was liable for the outstanding taxes because in her view the taxes were not yet due at the time of the closing of the transaction and therefore were assumed by the purchaser in accordance with the terms of the APA and the AVO.

issues:

1. Did the motion judge err in finding that liability for the Omit Tax Claim only arose when the relevant tax bills were issued?
2. Did the motion judge err in finding that the Omit Tax Claim was a Permitted Encumbrance that continued to attach to the Property after the Closing Date?
3. Did the motion judge err in finding that the Purchaser would have known about the MPAC tax reassessment prior to the Closing Date?

holding:

Appeal allowed.

reasoning:

1. Did the motion judge err in finding that liability for the Omit Tax Claim only arose when the relevant tax bills were issued?

Yes. The Court held that the dates upon which the liability for the Omit Tax Claim arose were authoritatively determined by s. 307(3) of the Municipal Act, which provides that taxes are “deemed to have been imposed and to be due” on January 1 of the relevant taxation year, unless the bylaw imposing the tax provides otherwise. No such bylaw had been passed in this case, which meant that liability for the Omit Tax Claim was deemed to have arisen on January 1, 2020, 2021 and 2022, respectively.

The Court held that the motion judge erred in finding that liability for the Omit Tax Claim arose only when the relevant tax bills were issued on November 25, 2022, rather than on January 1 of the relevant taxation years. Accordingly, the liability arose prior to the Closing Date and was not assumed by the Purchaser, in accordance with s. 2.2 of the APA.

2. Did the motion judge err in finding that the Omit Tax Claim was a Permitted Encumbrance that continued to attach to the Property after the Closing Date?

Yes. The Court noted that the motion judge determined that the Omit Tax Claim only became “due” when the relevant tax bills were issued. Because that occurred after the expiry of the Post-Closing Adjustment Period, the motion judge concluded that the liability was a Permitted Encumbrance that continued to attach to the purchased assets despite the AVO.

The Court held that the liability for the Omit Tax Claim was imposed and was due on January 1 of the relevant taxation year, by virtue of the deeming provision in s. 307(3) of the Municipal Act. Since the Omit Tax Claim became “due” prior to the Closing Date, it was not a Permitted Encumbrance under the APA or the AVO. As such, it was expunged and discharged as against the Property, and the motion judge erred in finding otherwise.

3. Did the motion judge err in finding that the Purchaser would have known about the MPAC tax reassessment prior to the Closing Date?

The Court noted that since the appeal was allowed on other grounds, it was unnecessary consider whether the motion judge erred in this factual finding.

Correa v. Valstar Homes (Oakville Sixth Line) Inc., 2025 ONCA 156

[Sossin, Favreau and Monahan JJ.A.]

Counsel:

P. H. Starkman and C. Zhang, for the appellants

W. A. Chalmers, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Time of the Essence, Remedies, Civil Procedure, Summary Judgment, King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, Whalen v. Hilier (2001), 53 O.R. (3d) 550 (C.A.), Gnyś v. Narbutt, 2016 ONSC 2594, 3 Gill Homes Inc. v. 5009796 Ontario Inc. (c.o.b. Kassar Homes), 2024 ONCA 6, Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051, Maher v. Great Atlantic & Pacific Co. of Canada, 2010 ONCA 415, More v. 1362279 Ontario Ltd. (c.o.b. Seiko Homes), 2023 ONCA 527, Kawartha Capital Corp. v. 1723766 Ontario Ltd., 2020 ONCA 763, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Housen v. Nikolaisen, 2002 SCC 33, Eurig Estate (Re), [1998] 2 S.C.R. 565

facts:

The parties entered into an Agreement of Purchase and Sale (the “APS) which included a “time is of the essence” clause and clearly stated that the date of closing would mean no later than 5:00 pm. On the date of closing, the appellants’ solicitor wired the funding to the respondent’s solicitor, but the funds did not arrive until 5:09 p.m. The respondent terminated the APS, but then offered to “revive” the APS if the appellants paid an additional $113,000. The appellants agreed and closed the transaction. In bringing their claim, the appellants alleged that they agreed to the price increase under protest. The motion judge concluded there was no genuine issue requiring a trial, dismissed the motion for summary judgment brought by the appellants, and granted summary judgment to the respondent, dismissing the action against it.

issues:

Did the motion judge err in:

1. applying the decision of the Supreme Court in Sattva Capital?
2. concluding that the “time is of the essence” clause applied to the closing of the transaction on April 20, 2021?
3. failing to consider and conclude that the terms of the APS, with respect to the closing time, are ambiguous and should be interpreted against the respondent in accordance with the doctrine of contra proferentem?
4. failing to analyze the respondent’s conduct in terminating the APS as being unreasonable, unfair and unjust in the circumstances?
5. failing to conclude that the payment of $100,000 plus HST paid by the appellants to revive the APS was an impermissible penalty?
6. failing to conclude that the appellants were under economic compulsion or duress when they paid the $100,000 plus HST to the respondent to revive the APS?

holding:

Appeal dismissed.

reasoning:

No. The Court was not persuaded that the motion judge committed a reversible error in his analysis or conclusions on any of the six issues.

1. While the motion judge did not expressly refer to Sattva, he was not required to cite the applicable authority; rather, he was required to apply the correct legal principles. The motion judge’s analysis of the APS was not inconsistent with the principles of Sattva.
2. There was no ambiguity in the APS with respect to the 5:00 pm deadline for closing. The appellants alleged that since no time was stipulated in the contract, this case could be distinguished from 3Gill Homes. The Court rejected this argument, stating that, as the motion judge found, the APS did stipulate a closing time. Similarly, the Court held that this case was distinguishable from More, where the Court concluded a “time is of the essence” provision should not be enforced where no closing time was set out in a contract. The appellants argued that the APS was subject to the Addendum to Agreement of Purchase and Sale, which provided that the vendor could unilaterally declare a delayed closing date on notice to the purchaser, such that the agreement was at best ambiguous as to the time of day by which closing had to occur. The Court rejected this argument, stating that the Addendum referred to the date of closing but made no reference to a specific closing time.
3. Since the Court rejected the argument that there was ambiguity with respect to the closing time in the APS, the doctrine of contra proferentemhad no application.
4. The motion judge did not err in concluding that the termination of the APS was not unreasonable, unfair or unjust. The Court reiterated the following passage from 3Gill Homes quoted by the motion judge: “While the outcome for the respondent was indeed harsh, it was not unconscionable or unfair. The wording of the contract and the warnings provided by the respondent beforehand were clear.” The Court accepted the motion judge’s similar finding in this case.
5. The Court rejected the appellants’ argument that the $113,000 payment to revive the APS represented the respondent’s imposition of an improper penalty. The cases relied upon by the appellant, such as Eurig Estate (Re),were inapplicable. While a contract can provide for penalties or additional fees, in this case, it was open to the motion judge on the record to conclude a new contract had been entered into.
6. Finally, the Court held that the motion judge did not err in rejecting the appellants’ argument that they were subject to economic duress. The motion judge correctly instructed himself on the test for this set out by the Court in Kawartha, and found on the record that this threshold had not been met.

Democracy Watch v. Ontario (Integrity Commissioner), 2025 ONCA 153

[Harvison Young, Coroza and Gomery JJ.A.]

Counsel:

N. Papageorge and W. Poziomka, for the appellant

J. Safayeni and S. Aylward, for the respondent

S. Choudhry, for the interveners Animal Justice, British Columbia Civil Liberties Association, and Centre for Free Expression at Toronto Metropolitan University

Keywords: Administrative Law, Judicial Review, Public Law, Lobbying, Civil Procedure, Standard of Review, Standing, Justiciability, Lobbyists Registration Act, 1998, S.O. 1998, c. 27, ss. 3.4, 17.1-17.12 Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 10, Lobbyists’ Code of Conduct and the Lobbying Act, R.S.C. 1985, c. 44 (4th Supp.), Members’ Integrity Act, 1994, S.O. 1994, c. 38, s. 23, Conflict of Interest Act, S.C. 2006, c. 9, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, Democracy Watch v. Canada (Attorney General), 2021 FC 613, British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27, Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042, Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, Stewart et al. v. Office of the Independent Police Review Director et al., 2014 ONSC 6150 (Div. Ct.), Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265, Minister of Justice (Can.) v. Borowski, [1981] 2 S.C.R. 575, Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, Delta Air Lines Inc. v. Lukács, 2018 SCC 2, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Canadian Elevator Industry Education Program v. Nova Scotia (Elevators and Lifts), 2016 NSCA 80, Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, Democracy Watch v. Canada (Attorney General), 2020 FCA 28, Democracy Watch v. Canada (Attorney General), 2018 FCA 194, Democracy Watch v. Canada (Attorney General), 2022 FCA 208, Democracy Watch v. Canada (Attorney General), 2024 FCA 158, Ecology Action Centre v. Nova Scotia (Environment and Climate Change), 2023 NSCA 12, Lorne M. Sossin and Gerard Kennedy, Boundaries of Judicial Review: The Law of Justiciability in Canada, 3rd ed. (Toronto: Thomson Reuters Canada, 2024)

facts:

The appellant, Democracy Watch (“DW”), is a non-profit organization advocating for democratic reform and government accountability. DW sought judicial review of nine decisions made by the Ontario Integrity Commissioner (“OIC”) under the Lobbyists Registration Act, 1998 (“LRA”). These decisions were related to investigations into lobbying activities.

DW argued that the OIC inconsistently applied penalties under s. 3.4 of the LRA and exhibited institutional bias, as the Commissioner is appointed by the legislature members they oversee. DW appealed a Divisional Court decision that upheld the dismissal of its nine judicial review applications challenging decisions made by the OIC under the LRA. The courts found DW lacked public interest standing, as the cases involved individual lobbyists whose matters had been concluded, and granting standing would undermine the LRA’s confidentiality protections.

The motion judge found that DW’s applications did not raise a serious justiciable issue because they primarily challenged the OIC’s exercise of discretion in individual cases rather than raising a broader issue of statutory interpretation. Further, the motion judge found that the DW’s applications were speculative and focused on individual complaint outcomes rather than systemic legal issues. She ruled that judicial review was not the proper forum and dismissed the applications. The Divisional Court upheld this decision on appeal.

issues:

Did the motion judge err in concluding that the applications did not raise a serious justiciable issue and the proceedings were not a reasonable and effective way to bring the issue before the courts?

holding:

Appeal dismissed.

reasoning:

1. Standard of Review

The court reaffirmed that a motion judge’s decision to grant or deny public interest standing is discretionary and entitled to deference, as established in British Columbia (Attorney General) v. Council of Canadians with Disabilities. An appellate court cannot intervene merely because it would have exercised discretion differently; rather, it must identify an error such as reliance on irrelevant factors, failure to consider relevant factors, reaching an unreasonable conclusion, or applying an incorrect legal principle.

Specifically, regarding public interest standing, appellate intervention is warranted where the lower court fails to weigh the Downtown Eastside factors cumulatively and purposively or assigns undue weight to a single factor. Public interest standing remains a fact and context-specific determination, requiring deference so long as the motion judge applies the appropriate legal framework.

2. Public Interest Standing

The appellant argued that, despite citing the correct test from Downtown Eastside, the motion judge applied an unduly rigid approach, effectively barring public interest standing. However, the Court disagreed, concluding that the motion judge had correctly identified and applied the three-part test for public interest standing, emphasizing that the factors were not a rigid checklist but had to be considered flexibly and purposively.

The motion judge assessed the first and third factors of the Downtown Eastside framework—whether there was a serious justiciable issue and whether the proceeding was a reasonable and effective means of bringing the matter before the court—before concluding that neither factor favored granting standing. She also applied the correct legal threshold on a motion to quash, requiring the Commissioner to demonstrate that it was “plain and obvious” or “beyond doubt” that the applications could not succeed.

3. No Serious Justiciable Issue

The Court agreed with the motion judge that the nine individual decisions did not raise a justiciable issue, and although DW alleged a statutory interpretation issue, this was speculative and unsupported by the evidence. The Court found that that six of the nine applications merely challenged the Commissioner’s discretionary decisions regarding penalties, which would only be reviewable for reasonableness (Vavilov). The remaining applications did not raise a genuine statutory interpretation issue but were based on speculation about the Commissioner’s application of s. 3.4 of the LRA based on anonymized summaries in the Annual Report. Additionally, while institutional bias was alleged, the motion judge determined that the statutory framework, including s. 23 of the Members’ Integrity Act, was a complete answer to this claim, which was in line with Supreme Court precedent in Ocean Port Hotel Ltd. v. British Columbia.

For an issue to be considered serious, it must present a substantial constitutional or legal question that is “far from frivolous” (Downtown Eastside). While public interest standing often arises in constitutional challenges, it can also be granted in challenges to administrative action. However, challenges to individual exercises of discretion—particularly when the decision under review does not affect many people—are less likely to satisfy the requirement. Ultimately, the motion judge’s conclusion that the applications did not raise a sufficiently serious issue to warrant public interest standing was upheld, as it aligned with the policy objectives of access to justice and judicial economy.

4. Not a reasonable and Effective Means to Bring the Matter to Court

The third factor of the Downtown Eastside test required that the proceeding be a reasonable and effective means of bringing the issue before the courts. This involves assessing whether granting standing would advance legality and access to justice while avoiding unnecessary burdens on judicial resources. Courts will consider factors such as the plaintiff’s expertise, whether the issue transcends private interests, and the availability of realistic alternative means.

DW argued that the motion judge erred by treating judicial review as needing to be the only effective means, rather than merely a reasonable and effective means, as required by Downtown Eastside. The Court rejected this argument, finding that the motion judge had properly applied the reasonable means standard and weighed the statutory framework accordingly. DW also contended that the motion judge gave undue weight to the private interests of lobbyists while neglecting the principle of legality. However, the Court rejected this and reiterated that appellate courts do not reweigh factors absent an error in law or principle. The motion judge’s reasoning was a proportionate balancing of the relevant considerations.

While the motion judge inaccurately suggested that s. 17.8 limited standing to lobbyists found non-compliant, the Court determined that this misinterpretation was not overriding. The overarching reasoning of the motion judge, based on confidentiality provisions and the need to avoid undermining the statutory scheme, was correct. Additionally, confidentiality restrictions meant that the applications would have to proceed in a “factual vacuum,” failing the requirement that public interest litigation be presented in a well-developed factual context.

SHORT CIVIL DECISIONS

Skrak v. Skrak, 2025 ONCA 143

[Nordheimer, Gomery and Dawe JJ.A.]

Counsel:

V. Pohani, for the appellant

M. Ordon, for the respondent

Keywords: Family Law, Spousal Support, Equalization of Net Family Property, Civil Procedure, Retrial, Pre-Judgment Interest, Post-Judgment Interest

Isard Estate v. Gunn, 2025 ONCA 139

[Hourigan, Wilson and Madsen JJ.A.]

Counsel:

E. F. R. Nash, for the appellant

K. A. Cura, for the respondent

Keywords: Wills and Estates, Residue Clause, Codicil, Remedies, Rectification

Ruck v. Mississauga (City), 2025 ONCA 147

[Nordheimer, Gomery and Dawe JJ.A.]

Counsel:

W. R., acting in person

D. Earthy, for the respondent

Keywords: Constitutional Law, Civil Procedure, Notice of Constitutional Issue, Courts of Justice Act, RSO 1990, c. C.43, s 109

Martel v. Ottawa (City), 2025 ONCA 148

[Nordheimer, Gomery and Dawe JJ.A.]

Counsel:

G. M., acting in person

A. Brunet, for the respondents

Keywords: Civil Procedure, Summary Judgment

Jodi L. Feldman Professional Corporation v. Foulidis, 2025 ONCA 150

[Gillese J.A. (Motions Judge)]

Counsel:

M. Whelton, for the appellant/moving party

S. N. Zeitx and C. Madden, for the respondent/responding party

Keywords: Contracts, Solicitor and Client, Civil Procedure, Appeals, Perfection, Extension of Time, Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, Issai v. Rosenzweig, 2011 ONCA 112, Boucher et al. v. Public Accountants Council for the Province of Ontario et al. (2004), 71 O.R. (3d) 291(CA), Cohen v. Kealey & Blaney (1985), 26 C.P.C. (2d) 211 (Ont. C.A.)

Brown v. Weirfoulds LLP, 2025 ONCA 152

[Nordheimer, Gomery and Dawe JJ.A.]

Counsel:

K. B., acting in person

S. Chopra, for the respondents

Keywords: Employment Law, Constructive Dismissal, Human Rights, Discrimination, Torts, Defamation, Conspiracy, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Human Rights Code, R.S.O. 1990, c. H.19, Law Society of Ontario, Rules of Professional Conduct

Ezidiegwu v. Manorgate Homes (Whitby) Inc., 2025 ONCA 154

[Nordheimer, Gomery and Dawe JJ.A.]

Counsel:

M. Tubie, for the appellant

G. Roberts, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Summary Judgment

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