Court of Appeal Summaries (May 26-30)

Hillier v. Ontario is an addendum to the Court’s previous decision that found that the appellant’s right to peaceful assembly under s.2(c) of the Charter was restricted by pandemic-related regulations that imposed limits on public gatherings. The Court held that the appropriate remedy for the constitutional violation was a reading down of the regulations so that the prohibition does not apply to gatherings for the purpose of peaceful assembly and protest of up to 10 people. In Paddy-Cannon v. Canada (Attorney General), the Court of Appeal for Ontario upheld a trial decision finding Canada liable in negligence and breach of fiduciary duty for its failure to follow through on a 1966 plan to return three Cree sisters to their maternal community. The Court dismissed appeals by both the caregiver and Canada, affirming that Canada owed an ad hoc fiduciary duty and a positive duty of care based on its discretionary role in the children’s care planning, and that the plaintiffs’ psychological and cultural harms were compensable in equity and tort. In Qu v. Zhang, a family law case, the Court upheld the trial judge’s decision that the wife was the 100% beneficial owner of a jointly owned home, finding that the funds she contributed were not intended as a gift. The Court also upheld the award of occupation rent against the wife.

Civil Decisions

Hillier v. Ontario, 2025 ONCA 396

Keywords: Constitutional Law, Freedom of Peaceful Assembly, Oakes Test, Remedies, Reading Down Doctrine, Provincial Offences, Canadian Charter of Rights and Freedoms, s. 2(c), Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17, Rules for Areas in Stage 1, O. Reg. 82/20, Sch. 4, s. 1(1)(c), Stay-at-Home Order, O. Reg. 265/21, Sch. 1, s. 1(1), Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, Criminal Code, R.S.C. 1985, c. C-46, Hillier v. Ontario, 2025 ONCA 259, Schachter v. Canada, [1992] 2 S.C.R. 679, Ontario (Attorney General) v. G, 2020 SCC 38

Paddy-Cannon v. Canada (Attorney General), 2025 ONCA 394

Keywords: Family Law, Child Protection, Crown Wardship, Aboriginal Children, Crown Liability, Negligence, Duty of Care, Proximity, Reasonable Foreseeability, Standard of Care, Breach of Fiduciary Duty, Sui Generis Fiduciary Duties, Ad Hoc Fiduciary Duties, Civil Procedure, Evidence, Witnesses, Credibility, Indian Act, R.S.C., 1985, c. 1-5, Child Welfare Act, R.S.O. 1960, c 53, Paddy-Cannon v. Canada (Attorney General), 2022 ONCA 110, R. v. C.G., 2021 ONCA 809, R. v. Sanichar, 2012 ONCA 117, Calin v. Calin, 2021 ONCA 558, R. v. Pindus, 2018 ONCA 55, Yan v. Nadarahaj, 2017 ONCA 196, R. v. Kruk, 2024 SCC 7, Ontario (Attorney General) v. Restoule, 2024 SCC 27, Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, R. v. Powley, 2003 SCC 43, Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, Brown v. Canada (Attorney General), 2013 ONSC 5637, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, Sagharian (Litigation Guardian of) v. Ontario (Minister of Education), 2008 ONCA 411, Galambos v. Perez, 2009 SCC 48, K.L.B. v. British Columbia, 2003 SCC 51, Lafrance Estate v. Canada (Attorney General) (2003), 64 O.R. (3d) 1 (C.A.), Norberg v. Wynrib, [1992] 2 S.C.R. 226, M.(K.) v. M.(H.), [1992] 3 S.C.R. 6, First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2, Strohmaier v. British Columbia (Attorney General), 2015 BCSC 1189, Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, Wewaykum Indian Band v. Canada, 2002 SCC 79, Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, Meng Estate v. Liem, 2019 BCCA 127, Hodgkinson v. Simms, [1994] 3 S.C.R. 377, Cooper v. Hobart, 2001 SCC 79, Taylor v. Canada (Attorney General), 2012 ONCA 479, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534, Waxman v. Waxman (2004), 44 B.L.R. (3d) 165 (Ont. C.A.), Jack Woodward and Ethan Krindle, Aboriginal law in Canada (Toronto: Thomson Reuters, 2025)

Qu v. Zhang, 2025 ONCA 391

Keywords: Family Law, Property, Joint Tenancies, Resulting Trusts, Remedies, Constructive Trusts, Family Law Act, R.S.O. 1990, c. F.3, s. 14, Pecore v. Pecore, 2007 SCC 17, Belokon v. Krygyz Republic, 2016 ONCA 981, Entes Industrial Plants Construction & Erection Contracting Co. v. Kyrgyz Republic, [2017] S.C.C.A. No. 74, SistemMühendislik Insaat Ve Sanayi Ticaret Anonim Sirketi v. Kyrgyz Republic, [2017] S.C.C.A. No. 75, Kerr v. Baranow, 2011 SCC 10, F.H. v. McDougall, 2008 SCC 53, Holtby v. Draper, 2017 ONCA 932, MacIntyre v. Winter, 2021 ONCA 516, Non Chhom v. Green, 2023 ONCA 692, Chao v. Chao, 2017 ONCA 701, Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.), Eileen E. Gillese, The Law of Trusts, 3rd ed. (Toronto: Irwin Law Inc., 2014)

CIVIL DECISIONS

Hillier v. Ontario, 2025 ONCA 396

[Lauwers, Zarnett and Pomerance JJ.A.]

Counsel:

C. Fleury and H. Kheir, for the appellant.

R. Cookson and P. Ryan, for the respondent

Facts:

This decision is an addendum to the Court’s decision allowing the appeal in this matter reported at Hillier v. Ontario, 2025 ONCA 259.

The appeal arose from a finding that the appellant, who was a member of the Legislative Assembly for the riding of Lanark-Frontenac-Kingston, defied limits imposed on gatherings during the COVID-19 pandemic and attended several protests. As a result, he was charged with provincial offences which carried a possible fine of $10,000 to $100,000 plus the possibility of imprisonment for up to a year. The appellant challenged the constitutionality of the two regulations under which he was charged, arguing that they placed limits on his s. 2(c) Charter rights (freedom of peaceful assembly) which could not be justified in a free and democratic under s. 1 of the Charter. He asked that the regulations be declared of no force or effect under s.52(1) of the Constitution Act, 1982.

The Court of Appeal concluded that the gathering limits at issue were not demonstrably justified under s. 1 of the Charter. The parties were asked for further submissions on the appropriate remedy.

Our summary of the previous decision can be found in our Court of Appeal Summaries (April 7-11).

Issues:

What is the appropriate remedy for the finding that the appellant’s peaceful assembly rights under s. 2(c) of the Charter were unjustifiably violated?

Holding:

There should be a reading down of the regulations so that the prohibition does not apply to gatherings for the purpose of peaceful assembly and protest of up to 10 people.

Reasoning:

The Court noted that although the regulations have since been revoked, the remedy of reading down would be the most appropriate way to render the impugned regulations constitutional.

The appellant submitted that the appropriate remedies would be: a) a declaration that Schedule 4 subsection 1(1)(c) of O. Reg. 82/20 (the “Shutdown Order”), as it existed from April 17, 2021, to May 22, 2021, unjustifiably infringed the right to organize and participate in outdoor protests as guaranteed under section 2(c) of the Charter and is of no force and effect to the extent of such infringement; and b) a declaration that O Reg 265/21 (the “Stay-at-Home Order”) unjustifiably infringed the right to organize and participate in outdoor protests as guaranteed under section 2(c) of the Charter and is of no force and effect to the extent of such infringement.

Ontario, on the other hand, argued that the appropriate remedy would be a declaration that: a) between April 8 and April 18, 2021, the prohibition on public events in s. 1(1)(c) of Schedule 4 of the Shutdown Order be read down to exclude peaceful outdoor protests that complied with public health guidance on physical distancing; b) between April 19 and May 22, 2021, the prohibition on outdoor public events in s. 1(1)(c), Schedule 4 of the Shutdown Order be read down to exclude outdoor peaceful protests of 10 people or fewer that complied with public health guidance on physical distancing; and c) the requirement that individuals remain at their residence in s. 1(1) of the Stay-At-Home Order be read down to exclude individuals who left their residence for the purpose of attending an outdoor peaceful protest that was permitted by law.

The Court noted that the remedy must be consistent with the principles in Schachter v. Canada, as clarified by the Supreme Court in Ontario (Attorney General) v. G, which noted that in tailoring remedies under s. 52(1) of the Constitution Act, 1982, courts must balance the public’s interest in constitutional compliance and the protection of Charter rights, on the one hand, with the benefit of laws passed by the legislature, on the other hand. Further, the Supreme Court cautioned that: “To ensure the public has the benefit of enacted legislation, remedies of reading down, reading in, and severance, tailored to the breadth of the violation, should be employed when possible so that the constitutional aspects of legislation are preserved”. The Court clarified that, as noted in Schachter and Ontario (Attorney General) v. G, reading down should be applied when “the offending portion of a statute can be defined in a limited manner”. As a result, the doctrine of reading down does not involve a finding of invalidity; rather, it is an interpretive device that vindicates Charter rights solely through a narrower interpretation that does not offend the Charter. The Court found that the impugned regulations wrongly included all gatherings for the purpose of peaceful assembly under the general prohibition, being those for the purpose of peaceful assembly and protest, and reading down would limit the reach of the provisions to constitutionally valid applications.

Paddy-Cannon v. Canada (Attorney General), 2025 ONCA 394

[Trotter and George JJ.A. and Brown J. (ad hoc)]

Counsel:

R. J. Reynolds, for the appellant K.C. (COA-24-CV-0060)

D. Luxat and M. Torrie, for the appellant the Attorney General of Canada (COA-24-CV-0061)

J. A. Annen, for the respondents

Facts:

The plaintiffs, three sisters of Cree heritage, were taken into care in Alberta and later brought to Ontario by their non-Indigenous father. After their grandmother’s death, they were placed with paternal relatives under informal and later formal foster arrangements. In 1966, federal officials developed a plan to return the children to their maternal family on the Thunderchild First Nation, but the plan was abandoned when paternal relatives (K.C.) chose to keep them. Their mother, a residential school survivor, made repeated but unsuccessful attempts to regain custody. The plaintiffs alleged they suffered physical and emotional abuse in the foster home, including beatings, forced labour, and identity suppression. They also claimed Canada failed to protect them and negligently abandoned the relocation plan, causing cultural and psychological harm.

At trial, the caregiver was found to have abused the plaintiffs, and Canada was held liable for negligence and breach of fiduciary duty. The trial judge concluded that Canada owed the plaintiffs duties stemming from its involvement in their care planning and failure to act in their best interests. The plaintiffs were awarded damages for pain and suffering, cultural loss, and punitive damages. On appeal, the caregiver challenged the trial judge’s findings on credibility and use of evidence, while Canada contested the legal basis for the duties found.

Issues:

K.C.’s Grounds of Appeal:

1. Did the trial judge err by misusing evidence of unrelated discreditable conduct?
2. Did the trial judge err in finding that there was no inadvertent collusion?
3. Did the trial judge err by failing to consider the impact of the passage of time on witness reliability?
4. Did the trial judge err by rejecting K.C.’s testimony on the basis of “four material flaws”?
5. Did the trial judge err by rejecting the testimony of her adult children, husband, and other extended family members?

Canada’s Grounds of Cross-Appeal:

6. Did the trial judge err in finding that Canada owed the respondents a fiduciary duty?
7. Did the trial judge err in finding that Canada owed the respondents a positive duty of care?
8. Did the trial judge err in finding that Canada was negligent and breached its fiduciary duty?

Holding:

Appeal and cross-appeal dismissed.

Reasoning:

1) No.

The Court agreed with the trial judge that K.C.’s claimed indigenous identity was of limited relevance and did not improperly influence the trial outcome. Although the trial judge expressed doubts about whether K.C. was of First Nations descent, she explicitly stated that these doubts would not aggravate any damages and only marginally affected her assessment of K.C.’s credibility. The Court found no reversible error, noting that the trial judge ultimately rejected K.C.’s evidence on other, independent grounds.

2) No.

The Court agreed with the trial judge that there was no collusion—advertent or inadvertent—among the plaintiffs. K.C. argued that the trial judge failed to appreciate the risk of inadvertent collusion due to the similarity in the plaintiffs’ evidence. However, the trial judge acknowledged this risk, evaluated the witnesses’ testimonies in detail, and concluded that their similarities reflected shared experiences rather than coordination. The Court held that this finding was well within the trial judge’s discretion and supported by the evidence.

3) No.

The Court agreed with the trial judge that K.C. adequately considered the impact of the passage of time on the reliability of witness memory. K.C. contended that the judge failed to account for the nearly 50-year gap between the events and the trial. However, the trial judge explicitly referenced leading authorities on the frailty of long-term memory, particularly in cases involving childhood events, and approached the evidence with appropriate caution. The Court found no error in the judge’s treatment of this issue.

4) No.

The Court agreed with the trial judge’s rejection of K.C.’s testimony based on four material flaws. These included internal inconsistencies in her account of discipline—where she initially denied using physical punishment but later conceded to slapping the children—and her breach of a foster care agreement not to work outside the home. The trial judge was entitled to find that K.C.’s shifting explanations undermined her credibility. The Court also upheld the trial judge’s reliance on K.C.’s lack of contact with the plaintiffs after they left her care as a reasonable basis to doubt her claim that she treated them like her own children. Finally, the trial judge was entitled to find that K.C.’s explanation about changing the plaintiffs’ names was implausible and tailored to contradict the documentary record.

5) No.

The Court agreed with the trial judge’s treatment of the testimony from K.C.’s husband, adult children, and extended family members. The judge gave little weight to their evidence, as the alleged abuse occurred privately and without outside witnesses. The Court held that these credibility and reliability assessments fell within the trial judge’s role and warranted deference.

6) No.

The Court upheld the trial judge’s conclusion that Canada owed the respondents a fiduciary duty and breached it. It agreed that a fiduciary relationship could be established in two ways: first, through the Crown’s discretionary control over a specific indigenous interest (sui generis); and second, where Canada undertakes to act in the respondents’ best interests, the respondents are vulnerable to Canada’s control, and they have a legal or practical interest adversely affected by Canada’s discretion (ad hoc). The Court disagreed with the trial judge that the evidence supported a sui generis fiduciary duty, but agreed with the trial judge that the evidence did establish an ad hoc fiduciary duty owed by Canada.

a. Sui Generis Fiduciary Duty

The Court held that the trial judge erred in basing a sui generis duty solely on the respondents’ loss of indigenous cultural identity, which reflected an individual rather than communal interest. It also found merit in Canada’s argument that reliance on an earlier class action certification decision (Brown) to support a sui generis duty was mistaken. Ultimately, the Court concluded that Canada did not owe a sui generis fiduciary duty to the respondents, and the trial judge erred in this regard.

b. Ad Hoc Fiduciary Duty

The Court accepted that the respondents were particularly vulnerable: they were effectively in foster care and dependent on temporary and financially constrained caregivers without legal authority, while Canada developed and pursued a return plan. This resembled a guardian-ward relationship. The Court affirmed that fiduciary obligations may flow from the nature of the relationship and the discretion exercised. Canada’s control over the return plan was sufficient to trigger such duties, even though provincial authorities held formal jurisdiction over child welfare.

7) No.

The Court upheld the trial judge’s finding that Canada was negligent, rejecting most of Canada’s submissions except for its valid point that the trial judge failed to address the reasonable foreseeability of abuse in the one of the homes.

a. Proximity

The Court rejected Canada’s reliance on Childs v. Desormeaux to frame this as a case of nonfeasance alone, noting that Childs recognizes a positive duty may arise in paternalistic relationships, such as parent-child, where vulnerability and control are present. The respondents’ cultural, linguistic, and identity interests, situated within a broader relationship between Indigenous peoples and Canada, supported a finding of proximity.

b. Reasonable Foreseeability

The Court upheld the trial judge’s conclusion that harm from loss of culture, language, and identity was reasonably foreseeable, rejecting Canada’s argument that such foreseeability based on parentage alone would render the Crown liable in every cross-cultural foster placement. Although it found the trial judge failed to assess whether the abuse was also reasonably foreseeable from Canada’s perspective, this omission did not affect the finding of negligence.

8) No.

The Court upheld the trial judge’s award of damages, finding that although the trial judge did not link Canada’s liability for psychological harm to a finding of reasonable foreseeability, the award likely reflected compensation for both breach of fiduciary duty and negligence. Under fiduciary law, foreseeability is not strictly required; equitable compensation is guided by fairness and policy, not rigid causation standards. Further, the psychological harm arose from both separation from community and K.C.’s abuse, as confirmed by expert evidence that was unchallenged. Thus, it was open to the trial judge to hold Canada jointly liable for the abuse-related damages.

Qu v. Zhang, 2025 ONCA 391

[Trotter, Thorburn and Wilson JJ.A.]

Counsel:

M. H. Tweyman and C. Van Ameringen, for the appellant/respondent by way of cross-appeal

R. Tao, for the respondent/appellant by way of cross-appeal

Facts:

The Appellant and Respondent were briefly married, owning a home as joint tenants in Ontario. The Respondent, who lives in China, transferred over $312,000 into a Canadian joint bank account with the Appellant before marriage. A large portion of those funds was used as a downpayment on the home. After their separation a year later, the Respondent claimed she never intended to gift her money or share ownership of the property. The Appellant argued the funds were a gift and the home was jointly owned.

The application judge found the Appellant not credible and accepted the Respondent’s consistent and detailed evidence that the funds were for investment, not a gift. The judge concluded that a resulting trust applied, making the Respondent the 100% beneficial owner, and in the alternative, the judge imposed the remedy of a constructive trust over the home in favour of the Respondent. The Appellant was also ordered to pay occupation rent from the date of separation, which was offset by his contributions to the property.

Issues:

1. Did the application judge err in concluding that the Respondent was the 100% beneficial owner of the home under a resulting or constructive trust?
2. Did the application judge err in awarding occupation rent against the Appellant?
3. Did the application judge err in not requiring the Appellant to pay $30,000 into court to cover the potential costs involved in repairing water damage to the house?

Holding:

Appeal and cross-appeal dismissed.

Reasoning:

1) No.

The Court upheld the judge’s conclusion that the Respondent was the 100% beneficial owner of the home based on a resulting trust, and in the alternative, a constructive trust. The judge correctly applied the presumption of resulting trust from Pecore v. Pecore, finding it was not rebutted in relation to the pre-marriage deposit and that the Respondent had provided sufficient evidence to rebut the presumption under s. 14 of the Family Law Act for transfers during the marriage. The Court rejected the Appellant’s argument that s. 14 applied retroactively to pre-marriage contributions and emphasized that the judge’s credibility findings and acceptance of the Respondent’s stated intentions were entitled to deference.

2) No.

The Court also upheld the judge’s award of occupation rent, finding that it was properly grounded in the factors to be considered in awarding occupation rent set out in Griffiths v. Zambosco and Non Chhom v. Green (the timing of the claim for occupation rent; the duration of the occupancy; the inability of the non-resident spouse to realize on their equity in the property; any reasonable credits to be set off against occupation rent; and any other competing claims in the litigation). The Appellant’s occupancy deprived the Respondent of the use of the home or rental income, and while he contributed to carrying costs, he did not prove that his improvements to the home warranted a further offset or beneficial interest.

3) No.

The Court upheld the application judge’s refusal to require the Appellant to pay $30,000 into court for speculative future repairs due to a roof leak. The judge awarded damages based only on proven costs, estimated between $6,000 and $9,000, relying on expert evidence. The Court found no error in limiting the award to established damage and rejecting a larger, uncertain claim.

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.

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.

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Civil Decisions

CIVIL DECISIONS