Court of Appeal Summaries (May 19– May 23)

Civil Decisions

J.P. Thomson Architects Ltd. v. Greater Essex County District School Board, 2025 ONCA 378

Keywords: Contracts, Interpretation, Dispute Resolution Clauses, Arbitration Clauses, Enforcement, Civil Procedure, Arbitrations,Applications toAppointment Arbitrator, Arbitration Act, 1991, S.O. 1991, c. 17, s. 10(1), Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, Mantini v. Smith Lyons LLP (2003), 64 O.R. (3d) 505 (C.A.), Huras v. Primerica Financial Services Ltd. (2001), 55 O.R. (3d) 449 (C.A.), Patel v. Kanbay International Inc., 2008 ONCA 867, Dalimpex Ltd. v. Janicki (2003), 64 O.R. (3d) 737 (C.A.), Geoff R. Hall, Canadian Contractual Interpretation Law, 4th ed. (Toronto: LexisNexis Canada, 2020)

Stolove v. Waypoint Centre for Mental Health Care, 2025 ONCA 376

Keywords: Torts, Negligence, Crown Liability, Systemic Negligence, Hospitals, Corporations, Vicarious Liability, Officers, Personal Liability, Civil Procedure, Class Proceedings, Certification, Common Issues, Costs, Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 5(1)(c) and 31, Public Hospitals Act, R.S.O. 1990, c. P.40, Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15, Health Care Consent Act, 1996, S.O. 1996, c. 2, s. 7, Sched. A, Substitute Decisions Act, 1992, S.O. 1992, c. 30, Mental Health Act, R.S.O 1990, c. M.7, Criminal Code, R.S.C. 1985, c. C-46, Part XX.1 (Mental Disorder), Family Law Act, R.S.O. 1990, c. F.3, s. 61(1), Canadian Charter of Rights and Freedoms, ss. 7 and 12, Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401 (C.A.), ADGA Systems International Ltd. v. Valcom Ltd. (1999), 43 O.R. (3d) 101 (C.A.), ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. (1995), 26 O.R. (3d) 481 (C.A.), Hollick v. Toronto (City), 2001 SCC 68, Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Hodge v. Neinstein, 2017 ONCA 494, Conway v. Fleming, [1996] O.J. No. 1242 (Gen. Div.), Fehr v. Life Assurance Company of Canada, 2018 ONCA 718, Pearson v. Inco. Ltd. (2005), 78 O.R. (3d) 641 (C.A.), Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, PMC York Properties Inc. v. Siudak, 2022 ONCA 635, Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, Palmer v. Teva, 2024 ONCA 220, Pioneer Corp. v. Godfrey, 2019 SCC 42, Rumley v. British Columbia, 2001 SCC 69, Banman v. Ontario, 2023 ONSC 6187, Cirillo v. Ontario, 2021 ONCA 353, Thorburn v. British Columbia (Public Safety and Solicitor General), 2013 BCCA 480, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Boucher v. Public Accountants Counsel for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), Barbour v. Bailey, 2016 ONCA 334, Banman v. Ontario, 2023 ONSC 7187, Cavanaugh v. Grenville Christian College, 2012 ONSC 4786, Pearson v. Inco Ltd. (2006), 79 O.R. (3d) 427 (C.A.)

York Region Standard Condominium Corporation No. 972 v. Lee, 2025 ONCA 385

Keywords: Real Property, Condominiums, Remedies, Compliance Orders, Liens, Civil Procedure, Reasonable Apprehension of Bias, Costs, Condominium Act, 1998, S.O. 1998, c.19, s. 134(5), Barendregt v. Grebliunas, 2022 SCC 22, R. v. Colley, 2024 ONCA 524, R. v. S. (R.D.), [1997] 3 S.C.R. 484, Ly Innovative Group Inc. v. Facilitate Settlement Corporation, 2025 ONCA 194, Toronto Standard Condominium Corporation No. 1633 v. Baghai Development Limited, 2012 ONCA 417, Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc. (2005), 253 D.L.R. (4th) 656 (Ont. C.A.), York Region Standard Condominium Corporation No. 972 v. Lee, 2021 ONCA 914

1803275 Ontario Limited v. Deerbourne Estates Corporation, 2025 ONCA 390

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Costs, Leave to Appeal, Extension of Time, Rules of Civil Procedure, Rule 61.03.1(3),(6), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Liu v. Chan, 2024 ONCA 699, Robson v. Law Society of Ontario, 2023 ONCA 709, Hobbs v. Hobbs, 2008 ONCA 598, R. v. Salifu, 2023 ONCA 590, R. v. Reid, 2016 ONCA 524, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Short Civil Decisions

Winter v. Winter Estate, 2025 ONCA 384

Keywords: Wills and Estates, Contracts, Interpretation, Minutes of Settlement, Hansen Estate v. Hansen, 2012 ONCA 112

MarshallZehr Group Inc. v. Zukowski, 2025 ONCA 382

Keywords: Contracts, Debtor-Creditor, Guarantees, Civil Procedure, Summary Judgment, Evidence, Cross-Examination, Rules of Civil Procedure r. 39.03(3), Halton Standard Condominium Corporation No. 550 v. Del Ridge (Appleby) Inc., 2023 ONCA 753, Lax v. Lax (2004), 70 O.R. (3d) 520 (Ont. C.A.), C.M. Callow Inc. v. Zollinger, 2020 SCC 45

CIVIL DECISIONS

J.P. Thomson Architects Ltd. v. Greater Essex County District School Board, 2025 ONCA 378

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

COUNSEL:

D. Milosevic and A. Moslehi, for the appellant

J. Smith, for the respondent

FACTS:

The appellant appealed the application judge’s denial of an order appointing an arbitrator pursuant to a dispute resolution clause in its contract with the respondent. On the application judge’s reading, the clause required a party to seek mediation within 30 days of a dispute arising between the parties, as a condition precedent to seeking arbitration. She found that any disputes between the parties had either been resolved within 30 days, or that more than 30 days had elapsed since any unresolved dispute arose before the appellant requested mediation. She accordingly concluded that the appellant’s subsequent notice to the respondent requesting the appointment of an arbitrator could not be enforced.

ISSUES:

Did the application judge err in interpreting the dispute resolution clause and the scope of the dispute?

HOLDING:

Appeal allowed.

REASONING:

Yes. The Court held that the application judge erred in interpreting the dispute resolution clause, GC18, which was the then standard form Ontario Association of Architects contract. The Court explained that, properly interpreted, the clause did not require the parties to seek mediation within 30 days of a dispute arising. It instead set a minimum 30-day period for the parties to attempt to resolve a dispute prior to requesting the appointment of a mediator.

The Court noted that the interpretation of a standard form contract attracts the correctness standard where it has precedential value and there is “no meaningful factual matrix specific to the particular parties to assist the interpretation process”: Ledcor Construction; Deslaurier Custom Cabinets. The Court stated that as GC18 was a standard dispute resolution clause, there was no factual matrix that could have assisted in interpreting the parties’ intentions; the appellant was required to accept all contractual terms proposed by the respondent, including GC18, when it responded to the respondent’s requests for proposal.

Further, the Court explained that in interpreting an arbitration clause, ordinary principles of contractual interpretation apply. The language of the clause must “be read in the context of the agreement as a whole, and its intended meaning gleaned within that context”: Mantini; Hura.

The Court held that if the application judge’s interpretation of GC18 were accepted, it would put the appellant in a difficult position any time a dispute arose. If it could not resolve the issue within 30 days, it would have to either take the risk that the respondent would terminate its contract or waive its right to ever seek mediation or arbitration. According to the Court, such an interpretation of GC18 was inconsistent with the language of the clause, the overall dispute resolution scheme, other contractual terms, sound commercial principles and good business sense. Therefore, the Court concluded that a party to GC18 did not lose all right to engage in dispute resolution by failing to serve a mediation request within thirty days of a dispute arising.

The Court noted that the application judge did correctly recognize that where it is arguable that a dispute falls within the terms of an arbitration agreement, any final determination as to the scope of the dispute to be arbitrated is better left to the arbitration tribunal, “since the question of jurisdiction is itself within the jurisdiction of that tribunal”: Patel; Dalimpex. However, the Court found that due in part to the application judge’s misreading of GC18, she failed to apply this principle. The Court explained that she did not limit her consideration of the record to whether the parties had a dispute that “arguably” triggered a right to arbitration under GC18, but instead made numerous findings of fact about the entire history of interactions between the parties over the preceding 15 months. The Court held that the application judge erred in doing so.

In the result, the appeal was allowed and the application. The parties were ordered to proceed to mediation within 60 days, with the appellant retaining the right to seek arbitration pursuant to GC18 should the parties fail to resolve their dispute.

Stolove v. Waypoint Centre for Mental Health Care, 2025 ONCA 376

[Sossin, Monahan and Madsen JJ.A.]

COUNSEL:

G. Nayerahmadi, J. P. Rochon and P. Mann, for the appellants

E. Bowker, D. Berlach, C. Breukelman, D. Forster, G. Murdoch, P. Morrison and K. M. Frelick, for the respondents Waypoint Centre for Mental Health Care, C.L., R.D. and L.A.

V. Glasser, R. Rammaya, M. Saad, D. Huffaker and M. Stevenson, for the respondent His Majesty the King in Right of Ontario

FACTS:

The Hospital, operated by Waypoint Centre, treats involuntarily admitted patients with severe mental illness, many of whom are involved in the criminal justice system. Due to the high-risk nature of the patient population, the use of seclusion and restraint is governed by strict legal standards under the “Least Restraint Principle”. The appellants alleged that seclusion was used punitively, in violation of legal and medical standards. They claimed this amounted to negligence, breach of fiduciary duty, and Charter violations.

The appellants sought to certify a class action alleging systemic negligence at the maximum security forensic psychiatric hospital in Penetanguishene, Ontario, claiming that patients were routinely subjected to excessive and punitive seclusion and restraint. The motion judge dismissed the certification motion, finding no basis in fact for systemic wrongdoing and concluding that individual assessments of patient care made common issues unsuitable for a class proceeding. The judge also dismissed claims against individual hospital administrators, finding no pleaded facts to support personal liability, and awarded partial indemnity costs against the appellants of over $1.9 million.

ISSUES:

Did the motion judge err in finding that the appellants’ claim did not raise common issues?

a) Did the motion judge misconstrue the elements of a claim in systemic wrongdoing?

b) Did the motion judge err in determining the standard of care?

c) Did the motion judge err in making merits determinations in the face of conflicting evidence?

Did the motion judge err in dismissing the negligence claims against the Individual Respondents?
Did the motion judge err in their costs award?

HOLDING:

Appeal dismissed.

REASONING:

The Court stated that certification decisions are owed deference due to the motion judge’s expertise. Legal questions are reviewed for correctness, but factual ones are reviewed for palpable and overriding error. Preferable procedure decisions attract special deference as they involve discretionary balancing.

a) The Court upheld that the motion judge did not misconstrue the elements of a claim for systemic wrongdoing.

The Court found the judge correctly applied the legal test for common issues, which requires that an issue be answerable across the entire class to avoid duplication of fact-finding. The motion judge thoroughly reviewed the Hospital’s policies on restraint and seclusion and found they properly incorporated the Least Restraint Principle, emphasizing their trauma-informed and last-resort approach. The Court rejected the appellants’ argument that the judge required uniform experiences of harm, clarifying that commonality requires only a shared legal or factual issue that advances the litigation. The judge’s refusal to focus solely on class members’ experiences was supported by his detailed review of the respondents’ policies, which found no evidence of a systemic policy or practice causing widespread harm. The Court also distinguished this case from others cited by the appellants where common systemic policies were found.

b) The motion judge did not commit a palpable and overriding error by stating that the duty of care owed by a psychiatric hospital is a “settled question”

The Court found that the judge was not dismissing disputes over the use of restraint and seclusion but rather stating that the existence of a duty of care and applicable standard (namely, the Least Restraint Principle) was established law. The real question for trial was whether the standard was breached in individual cases, an issue unsuitable for certification on common issues grounds. The Court found this reasoning consistent with the overarching analysis of individualized breaches.

c) The Court upheld that the motion judge did not overstep by making factual and legal findings in the face of conflicting evidence.

The Court found that while the appellants presented evidence of numerous instances where restraint or seclusion was improperly used, the judge accepted this as a prima facie case but concluded that these instances resulted from individual decisions rather than a systemic policy. The judge relied on expert evidence confirming that systemic wrongdoing was not demonstrated, and each instance required patient-specific analysis. This mixed fact and law conclusion, based on a very extensive evidentiary record, was entitled to deference and did not amount to an improper merits determination.

The Court noted that since no certifiable common issues were found, the proposed class action could not meet the preferable procedure criterion. Although the motion judge also suggested, in obiter, that a joinder action might be preferable, this was unnecessary given the circumstances. Additionally, it was unclear how fully the parties had addressed joinder, so the Court declined to express any opinion on that alternative analysis.

The Court upheld the motion judge’s dismissal of the negligence claims against the individual respondents. The appellants argued that these individuals, as officers or employees of the hospital, owed a separate “stand-alone duty of care” to the class members. The Court rejected this, confirming that corporate officers or employees are only personally liable if they engage in tortious conduct distinct from the corporation’s conduct. The motion judge found no such distinct conduct in the pleadings, which only included generalized allegations of policy approval or awareness, not specific acts tied to patient harm. Accordingly, it was plain and obvious the claims were bound to fail.

The Court also upheld the motion judge’s discretion in awarding over $1.9 million in costs. While leave to appeal the costs award was granted, the appeal was dismissed. The Court found no error in the motion judge’s conclusion that the case’s complexity justified the awarding of these costs, which complexity involved intersecting areas of law and multiple parties. Although the appellants argued the award would chill future class actions, the motion judge had already applied a 10% reduction due to public interest considerations and noted that Waypoint’s counsel had voluntarily reduced their claim by over $600,000. Ultimately, the costs award was found to be fair, proportionate, and reasonable, and the Court saw no basis to interfere with the motion judge’s decision.

York Region Standard Condominium Corporation No. 972 v. Lee, 2025 ONCA 385

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

COUNSEL:

P. T. M. L. and M. C. L., acting in person

T. Duggan, for the respondent

FACTS:

This dispute related to the discovery of defective plumbing in the condominium and the remedial efforts undertaken by the respondent, which were resisted by the appellants, who refused the respondent’s entry to their unit for the purpose of addressing the defective plumbing. The appellants were ordered to deliver possession of their unit to the respondent and the respondent was granted leave to issue a writ of possession in respect of the unit (unless the appellants discharged the lien within 60 days). The appellants appealed.

ISSUES:

Was the trial judge biased in failing to approach the dispute with an open mind fair to all parties?
Did the trial judge err in calculating the value of the lien?

HOLDING:

Appeal allowed in part.

REASONING:

The Court found that the appellants’ allegations of bias were based simply on the fact that the trial judge, prior to his appointment, knew and had some contact with a lawyer formerly with the firm representing the respondent. The appellants sought to have the court infer that the trial judge and the lawyer engaged in out-of-court communications about the case, and further noted that the lawyer chaired a panel at a professional development event on which, a decade prior to his appointment, the trial judge spoke.

The Court explained that to find that a reasonable apprehension of bias existed in relation to a judge requires clear evidence that the judge was not approaching the matter at issue with an open mind fair to all parties: R. v. S. (R.D.); Ly Innovative Group Inc. v. Facilitate Settlement. The Court found that the appellants raised no such evidence and held that the trial judge’s reference to the lawyer was simply based on his mistaken belief that the lawyer continued to be a lawyer with the firm representing the respondent. Further, the Court stated that the fact there was some contact between the trial judge and a lawyer who once worked with the firm representing the respondent did not amount to evidence that the trial judge was not approaching this dispute with an open mind.

Yes.

While not raised by the appellant, the Court held that the trial judge’s calculation of the lien contained an error which warranted appellant clarification.

The Court stated that there was no dispute that in the appeal of Brown J.’s decision, the Court awarded costs in favour of the respondent in the amount of $4,500. The Court explained that, in light of s. 134(5) of the Condominium Act, the Court has recognized the distinction between an “award of costs” between litigants ordered by a court and “additional actual costs” expended by a condominium corporation in obtaining a compliance order: Toronto Standard Condominium Corporation No. 1633 v. Baghai Development; Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties. The Court noted that it would be open to a condominium corporation to add its actual, reasonable costs, in addition to a court ordered award of costs, to the common expenses attributable to a unit pursuant to s. 134, or as in this case, to a lien based on those expenses.

The Court turned its mind not only to an appropriate award of costs in the appeal, but also to the amount appropriate to add to the condominium corporation’s common expenses: York Region Standard Condominium Corporation No. 972 v. Lee. In the Court’s view, it was not open to the respondent to seek to add its full costs of $9,089.35 before the assessment officer, nor was it open to the trial judge to include this additional amount in the calculation of the lien. Rather, the Court held that the fixed amount attributable both to the “costs” and “additional actual costs” relating to the appeal of Brown J.’s decision was $4,500. As a result, the difference between these two amounts (i.e., $9,089.35-$4,500), $4,589.35, was improperly added to the lien and had to be removed.

The Court stressed that this clarification and the correction of the error in the calculation of the lien had no bearing on the validity or enforceability of the lien, which was correctly found by the trial judge.

1803275 Ontario Limited v. Deerbourne Estates Corporation, 2025 ONCA 390

Lauwers J.A. (Motions Judge)

COUNSEL:

P Thériault, for the appellant/moving party, Deerbourne Estates Corporation

K. D. Reason, for the respondents/responding parties, 1803275 Ontario Limited and Ardler Farms Inc.

FACTS:

The appellant borrowers sought to appeal a costs award of $78,855.83 made against them in favour of the respondent mortgage lenders in a mortgage enforcement proceeding. The borrowers filed their motion for an extension of time to seek leave to appeal nearly a month and a half after the costs order was issued. They argued that an earlier decision had capped costs at $20,000 and that the lenders were the losing party.

The mortgage action had resolved with a sale of the property for $3.2 million, with $2 million in proceeds paid to the lenders. The motion judge, Johnston J., held that the borrowers were in default, that the mortgage terms provided for solicitor-client costs, and that the enforcement steps taken by the lenders were reasonable and necessary.

ISSUES:

Should the borrowers be granted an extension of time to seek leave to appeal the costs award?
Did the motion judge err in awarding solicitor-client costs to the lenders?

HOLDING:

Motion dismissed.

REASONING:

The Court applied the test for leave to appeal set out in Enbridge Gas Distribution Inc. v. Froese. While the Court accepted that the borrowers intended to appeal within the time limit, no explanation for the delay was provided. There was no real prejudice to the lenders, but the proposed appeal lacked merit, a factor the Court identified as determinative. The motion was brought nearly six weeks after the costs order was released, and the borrowers failed to satisfy the criteria required to justify an extension.

The borrowers failed to meet the high threshold for leave to appeal a discretionary costs order. Applying Hobbs v. Hobbs, the Court confirmed that leave to appeal a costs award is rarely granted and only where strong grounds exist to show an error in principle. The motion judge’s reasons demonstrated he had considered the parties’ positions, the mortgage’s standard charge terms, and applicable precedent. The borrowers’ argument that an earlier ruling fixed costs at $20,000 was unsupported by the record and had not been raised before the motion judge. Relying on Hamilton v. Open Window Bakery Ltd., the Court found no error in the motion judge’s determination that the borrowers were the losing party and that solicitor-client costs were appropriate. The Court emphasized that appellate courts defer to such discretionary decisions absent palpable error, which was not shown here.

SHORT CIVIL DECISIONS

Winter v. Winter Estate, 2025 ONCA 384

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

COUNSEL:

D. Turner, for the appellants

J. Montgomery, for the respondents

Keywords: Wills and Estates, Contracts, Interpretation, Minutes of Settlement, Hansen Estate v. Hansen, 2012 ONCA 112

MarshallZehr Group Inc. v. Zukowski, 2025 ONCA 382

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

COUNSEL:

I. A. Duncan and D. M. Steele, for the appellants

S. Schwartz, for the respondent

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.

Court of Appeal Summaries (May 19– May 23)

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Civil Decisions

Short Civil Decisions

CIVIL DECISIONS

SHORT CIVIL DECISIONS