COURT OF APPEAL SUMMARIES (NOVEMBER 9 – NOVEMBER 13)

In Harris v. Melo, the Court allowed the appellant’s appeal from the application judge’s dismissal of his application for a declaration that the respondent was holding her interest in an investment property in trust for him, and that he was therefore the 100% beneficial owner of the property. The Court confirmed that section 5(1) of the Real Property Limitations Act applied, as the appellant was never dispossessed of receipt of the rents relating to the property and accordingly his application was not statute-barred by section 4. The fact that the respondent had declared an intention to assert beneficial ownership more than ten years before the application was brought did not start the running of the limitation period.

In Thibault v. Ontario (Attorney General), the Court dismissed an appeal from the Divisional Court’s dismissal of an application challenging the validity of a regulation that prohibits individuals with certain firearms convictions from being certified as tow truck operators.

In New Sunlight Inc. v. Ontario (Infrastructure), the Court dismissed the appellant landowner’s appeal from the Divisional Court’s dismissal of its application for judicial review. The appellant had sought to quash two orders in council related to the expropriation of lands in Toronto’s East Harbour required for the Ontario Line subway.

In Demikon Construction Ltd. v. Oakleigh Holdings Inc., the owner terminated its general contractor and then paid the contractor’s subcontractors directly under s.28 of the Construction Lien Act (the “Act”). It later sought to reduce the security it had posted to vacate the contractor’s lien by the total of those payments under s.44(5) of the Act. While the owner succeeded in reducting the security posted at first instance, the Divisional Court reversed that decision. The Court of Appeal upheld the Divisional Court decision, confirming that s. 28 of the Act deems a direct payment to be a payment to the contractor only where the payee is a “person having a lien” at the time of payment. It also held that s. 44(5) gives no independent basis for such a credit. The appeal was dismissed because the evidentiary record did not establish which payees had liens or the amount of any reduction, however, the appellant owner was at liberty to bring a fresh motion to reduce the security posted on a proper evidentiary record.

In Waters Estate v. Henry, the Court ordered a new trial on whether more than $30 million transferred by a now deceased wealthy elderly man to his wife’s caregiver over ten years were gifts or held on resulting trust. The trial judge had found that the caregiver rebutted the presumption of resulting trust for almost all of the transfers. The Court held that the trial judge effectively reversed the onus by looking for evidence that the deceased intended to keep an interest. He also wrongly excluded the deceased’s handwritten notes as hearsay, when they could show an implied assertion that the deceased was tracking his investments. The Court also held that their intimate relationship was context, not the independent corroboration that s. 13 of the Evidence Act requires. The Court upheld the finding that the deceased kept an 80% interest in a horse farm business, and the order that the caregiver repay $1,938,000 of the wife’s money.

In Toronto Star Newspapers Limited v. OpenAI, Inc., the Toronto Star and other Canadian media organizations sued Open AI for breach of copyright as a result of the unauthorized use and reproduction of their content by ChatGPT. The Court dismissed OpenAI’s appeal from the motion judge’s dismissal of its motion to stay the action for lack of jurisdiction. The motion judge’s finding that there was a real and substantial connection between the claim and Ontario was correct and the finding that Ontario was an appropriate forum was correct and entitled to deference.

In Sanayhie v. Durham (Police Services Board), the jury returned a verdict that found no liability for malicious prosecution but set damages in respect of that claim after misunderstanding the trial judge’s instructions. The trial judge brought this inconsistency to the jury’s attention and sent them back to reconsider the verdict. The jury’s second verdict found liability for malicious prosecution and set damages in the same amount as on the first verdict sheet. The defendants appealed. The Court found that the re-instruction provided in sending the jury back for reconsideration suggested an outcome — that they find malicious prosecution — which rendered the second verdict unsafe, resulting in a new trial being ordered on the claim of malicious prosecution.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Harris v. Melo, 2026 ONCA 798

Keywords: Real Property, Tenancies in Common, Purchase Money Resulting Trusts, Constructive Trusts, Civil Procedure, Limitation Periods, Discoverability, Real Property Limitations Act, R.S.O. 1990, c. L. 15, s. 4 and ss. 5(1), Browne v. Meunier, 2023 ONCA 223, Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623, Kaiman v. Graham, 2009 ONCA 77, Palmer v. The Queen, [1980] 1 S.C.R. 759

Thibault v. Ontario (Attorney General), 2026 ONCA 797

Keywords: Regulated Professions, Tow Truck Operators, Constitutional Law, Criminal Law, Statutory Interpretation, Towing and Storage Safety and Enforcement Act, 2021, S.O. 2021, c. 26, Sched. 3, O. Reg. 167/23, s. 2(1), Criminal Code, R.S.C. 1985, c. C-46, s. 109, Charter of Rights and Freedoms, Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 5, 6, 7, 7.1, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131, Canada (National Revenue) v. Thompson, 2016 SCC 21, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342

New Sunlight Inc. v. Ontario (Infrastructure), 2026 ONCA 812

Keywords: Real Property, Expropriation, Municipal Law, Land Use Planning, Zoning, Administrative Law, Judicial Review, Jurisdiction, Vires, Transit-Oriented Communities Act, 2020, S.O. 2020, c. 18, Sched. 20, s. 2(1) and 3(3), Ministry of Infrastructure Act, 2011, S.O. 2011, c. 9, Sched. 27, s. 10(2), Expropriations Act, R.S.O. 1990, c. E.26, s. 7(1) and 8(1), Planning Act, R.S.O. 1990, c. P.13, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Auer v. Auer, 2024 SCC 36

Demikon Construction Ltd. v. Oakleigh Holdings Inc., 2026 ONCA 808

Keywords: Contracts, Construction, Liens, Vacating, Security, Reduction of Security, Statutory Interpretation, Construction Lien Act, R.S.O. 1990, c. C.30, ss. 14, 17, 28, 29, 44(5), Construction Act, R.S.O. 1990, c. C.30, Legislation Act, 2006, s. 64(1), Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, KingSett Mortgage Corp. v. Mapleview Developments Ltd., 2026 ONCA 512, Scott, Pichelli & Easter Limited v. Dupont Developments Ltd., 2022 ONCA 757, Pentad Construction Inc. v. 2022988 Ontario Inc., 2021 ONSC 824, Dependable Mechanical Systems Inc. v. Concord Adex Developments Corp., 2026 ONSC 21

Waters Estate v. Henry, 2026 ONCA 704

Keywords: Real Property, Wills and Estates, Powers of Attorney, Trusts, Resulting Trusts, Donative Intent, Breach of Fiduciary Duty, Unjust Enrichment, Remedies, Equitable Tracing, Civil Procedure, Evidence, Admissibility, Hearsay, Corroborative Evidence, Burden of Proof, Limitation Periods, Discoverability, Trials, Procedural and Natural Justice, Appeals, Evidence Act, R.S.O. 1990, c. E.23, s. 13, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5, Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 4, Pecore v. Pecore, 2007 SCC 17, Buffa v. Giacomelli, 2026 ONCA 566, Kerr v. Baranow, 2011 SCC 10, R. v. Baldree, 2013 SCC 35, R. v. McKinnon (1989), 70 C.R. (3d) 10, R. v. Badgerow, 2014 ONCA 272, leave to appeal ref’d [2014] S.C.C.A. No. 254, R. v. Evans, [1993] 3 S.C.R. 653, R. v. F.B.P., 2019 ONCA 157, R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.), Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854, Foley (Re), 2015 ONCA 382, Bank of Montreal v. Iskenderov, 2023 ONCA 528, Browne v. Meunier, 2023 ONCA 223, Pioneer Corp. v. Godfrey, 2019 SCC 42

Toronto Star Newspapers Limited v. OpenAI, Inc., 2026 ONCA 814

Keywords: Intellectual Property, Copyright, Civil Procedure, Jurisdiction, Real and Substantial Connection, Forum Non Conveniens, Service Outside Ontario, Setting Aside, Rules of Civil Procedure, r. 17.06, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 106, Copyright Act, R.S.C. 1985, c. C-42, s. 3(1)(a), Extra-Provincial Corporations Act, RSO 1990, c E.27, s.1(2), TeleZone Inc. v. Canada (Attorney General), 2008 ONCA 892, aff’d 2010 SCC 62, Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Sinclair v. Venezia Turismo, 2025 SCC 27, Pourshian v. Walt Disney, 2021 ONSC 4840, Sharp v. Autorité des marchés financiers, 2023 SCC 29, Clearview AI Inc. v. British Columbia (Information and Privacy Commissioner), 2026 BCCA 67, Keselman v. Marktech Services Inc., 2020 ONSC 487, IBC Advanced Technologies, Inc. v. Ucore Rare Metals Inc., 2019 NSCA 80, 582556 Alberta Inc. v. Canadian Royalties Inc., 2008 ONCA 58, H.M.B. Holdings Ltd. v. Antigua and Barbuda, 2021 SCC 44, Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265, aff’d 2017 SCC 34, Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196, Bridging Finance Inc. v. Sharpe, 2026 ONCA 432, Haaretz.com v. Goldhar, 2018 SCC 28, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18

Sanayhie v. Durham (Police Services Board), 2026 ONCA 813

Keywords: Torts, Malicious Prosecution, Wrongful Arrest, Civil Procedure, Trials, Juries, Jury Instructions, Jury Reconsideration, Sanayhie v. Durham Regional Police Services Board, 2025 ONSC 3822, Sacks v. Ross, 2017 ONCA 773, Maher v. The Great Atlantic & Pacific Company of Canada, Limited, 2010 ONCA 517, R. v. Abdullahi, 2023 SCC 19

Short Civil Decisions

Lawyers’ Professional Indemnity Company v. Sochnyeva, 2026 ONCA 809

Keywords: Civil Procedure, Striking Pleadings, Appeals, Jurisdiction, Orders, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 19(1)(c), 110(1), Bernard v. Fuhgeh, 2020 ONCA 529, Pavletic v. Pavletic, 2023 ONSC 2547

Rahman v. 2692520 Ontario Inc., 2026 ONCA 810

Keywords: Real Property, Remedies, Partition and Sale, Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1), Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375

CIVIL DECISIONS

Harris v. Melo, 2026 ONCA 798

[Huscroft, Dawe and Brownstone JJ.A.]

Counsel:

J. Rosenstein, for the appellant/responding party
B. Salsberg, for the respondent/moving party

Keywords: Real Property, Tenancies in Common, Purchase Money Resulting Trusts, Constructive Trusts, Civil Procedure, Limitation Periods, Discoverability, Real Property Limitations Act, R.S.O. 1990, c. L. 15, s. 4 and ss. 5(1), Browne v. Meunier, 2023 ONCA 223, Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623, Kaiman v. Graham, 2009 ONCA 77, Palmer v. The Queen, [1980] 1 S.C.R. 759

facts:

The parties were registered tenants in common, each holding a 50 percent interest in an investment property they purchased in 1989. The respondent, K.H., agreed to put her name on title as a tenant in common with a 50% interest, and to co-sign the associated mortgage documents. The appellant, J.M., provided all funds for the downpayment of the property, and there was no evidence that the respondent contributed financially to the property’s purchase, mortgage payments or upkeep. The appellant alone managed the property and received the tenants’ rents throughout the entire time the parties remained on title.

The appellant applied for a declaration that the respondent was holding her interest in trust for him, and that he was the 100 percent beneficial owner of the property. The application judge found that the respondent had communicated to the appellant her intention to dispose of her interest in the property in 1995, if not earlier. The application judge held that the respondent’s actions at that time put the appellant on notice of her position that she held both the legal and beneficial title to her 50 percent of the property. The application judge dismissed the appellant’s application, finding that it was barred by the ten-year limitation period established in s. 4 of the Real Property Limitations Act (“RPLA”), because the appellant commenced his application more than ten years after 1995. The application judge found that had the claim not been statute-barred, the appellant would have been entitled to the declaration he sought. Given that the appellant’s request for relief failed, the application judge granted the respondent’s application for partition and sale of the property.

The appellant appealed. His primary ground of appeal was that his application was governed by s. 5(1) of the RPLA, which delayed the starting of the limitation clock under s. 4. The respondent’s argument was that s. 5(1) did not apply.

issues:

Was the appellant’s application governed by section 5(1) of the RPLA, which delayed the starting of the limitation clock under section 4?

holding:

Appeal allowed.

reasoning:

Yes.

The Court found that s. 5(1) of the RPLA applied to the appellant’s request for relief, and accordingly, the limitation period did not start to run while the appellant remained in possession of the property. The Court held that his application was not statute-barred, and that the application judge’s finding that the appellant was the property’s sole beneficial owner must be implemented.

The common law of discoverability applies to the application of s. 4 of the RPLA, which captures claims to the ownership of land advanced by way of resulting and constructive trusts. Section 5(1) of the RPLA operates to postpone the commencement of the limitation period in s. 4, reading, in part, as follows: “…person claiming such land or rent…has, in respect of the estate or interest claimed, been in possession or in receipt of the profits of the land, or in receipt of the rent, and has, while entitled thereto, been dispossessed, or has discontinued such possession or receipt, the right to make an entry or distress or bring an action to recover the land or rent shall be deemed to have first accrued at the time of the dispossession or discontinuance of possession, or at the last time at which any such profits or rent were so received.”

The respondent acknowledged that the appellant was in continuous receipt of the rents since the property was purchased. The appellant was never dispossessed of these receipts. On those facts, the jurisprudence of the Court in Waterstone made it clear that s. 5(1) applied. The limitation period on the appellant’s application did not start running because the appellant was never dispossessed, nor was his possession discontinued. The respondent further argued that s. 5(1) only applies when the claimant has no legal title to the property but obtains his entire interest by adverse possession. The Court held that neither the text of s. 5(1) nor the Court’s decision in Waterstone supported this distinction.

Although the respondent did not seek to appeal the application judge’s finding that she failed to rebut the presumption of a purchase money resulting trust in favour of the appellant, the Court agreed with the finding. Because the limitation period issue was disposed of in the appellant’s favour, the application judge’s finding took effect.

The Court set the decision below aside and declared that the appellant was the beneficial owner of the respondent’s 50% interest in the property.

Thibault v. Ontario (Attorney General), 2026 ONCA 797

[Lauwers, Rahman, Brownstone JJ.A.]

Counsel:

G. van Ert K.C. and D. Shuhaibar, for the appellants
W. Malik and M. Stevenson, for the respondent

Keywords: Regulated Professions, Tow Truck Operators, Constitutional Law, Criminal Law, Statutory Interpretation, Towing and Storage Safety and Enforcement Act, 2021, S.O. 2021, c. 26, Sched. 3, O. Reg. 167/23, s. 2(1), Criminal Code, R.S.C. 1985, c. C-46, s. 109, Charter of Rights and Freedoms, Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 5, 6, 7, 7.1, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131, Canada (National Revenue) v. Thompson, 2016 SCC 21, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342

facts:

In 2021, Ontario enacted the Towing and Storage Safety and Enforcement Act, 2021 (the “TSSEA”). The TSSEA introduced a certification regime for tow-truck operators. Following the enactment of the TSSEA, the appellants had to seek certification in order to continue working. They were refused certification on the basis that they had “disqualifying record[s] of convictions of charges” under s. 2(1) of O. Reg 167/23 (the “Regulation”), specifically a drug conviction that led to a lifetime prohibition order under s. 109 of the Criminal Code. Section 109 prohibits the possession of certain weapons.

The appellants challenged the validity of s. 2(1)(d)(i) of the Regulation, which states a person has a disqualifying record if they are “subject to a court order, conditions of parole or an undertaking to a peace officer prohibiting him or her from, (i) possessing a weapon”. The appellants challenged that it is ultra vires because it is inconsistent with the TSSEA’s purpose of protecting legitimate towing operators. The appellants also challenged the Regulation on Charter grounds. The Divisional Court dismissed the appellants’ application.

issues:

1. Does s. 2(1)(d)(i) apply to a person who is subject to a s. 109 order?
2. Can the appellants challenge the vires of the Regulation and its compliance with the Charter?

holding:

Appeal dismissed.

reasoning:

1. No.

Section 2(1)(d)(i) does not apply to a person who is subject to a s. 109 order by virtue of a conviction for offences already set out in s. 2(1)(c) of the Regulation. To read the provision otherwise renders s. 2(1)(c) redundant.

Under s. 2(1)(c) of the Regulation, a person is disqualified if they have “been convicted or found guilty in the preceding ten years of an offence under s. 5, 6, 7 or 7.1 of the Controlled Drugs and Substances Act (Canada) (the “CDSA”), or of a comparable offence in another jurisdiction”. Under s. 109(1)(c) of the Criminal Code, everyone who is convicted of an offence under ss. 5(1) or (2), 6(1) or (2) or 7(1) of the CDSA, automatically receives a lifetime s. 109 prohibition order.

By necessity, anyone convicted of an offence under s. 5-7 of the CDSA will be captured by s. 2(1)(d)(i) because they are subject to an order prohibiting them from possessing a weapon. They will also be captured by s. 2(1)(c) because of their previous conviction under the CDSA.

To ensure the coherence of the scheme, and applying the logic behind the interpretive maxim generalia specialibus non derogant (“a specific provision overrides a general provision”), s. 2(1)(d)(i) must not be read to include those operators who have committed an offence under s. 2(1)(c) that results in a mandatory s. 109 order. If a person seeking certification under the TSSEA has committed one of the offences enumerated in s. 2(1)(c), the prohibition order associated with that conviction cannot serve as an independent basis for disqualification under s. 2(1)(d)(i). This is because the specific time limit prescribed by s. 2(1)(c) overtakes the general and residual nature of s. 2(1)(d)(i).

2. No.

Because the appellants’ challenge to the Regulation was based on disqualification under s. 2(1)(d)(i), they lacked standing to challenge the vires of the Regulation and its compliance with the Charter. There was no basis to set aside the Divisional Court’s order.

New Sunlight Inc. v. Ontario (Infrastructure), 2026 ONCA 812

[Lauwers, Rahman and Brownstone JJ.A.]

Counsel:

D.O. Smith, P. Morley, M. Grant and M. Mackenzie, for the appellant
A. Jin and M. Chung, for the respondent

Keywords: Real Property, Expropriation, Municipal Law, Land Use Planning, Zoning, Administrative Law, Judicial Review, Jurisdiction, Vires, Transit-Oriented Communities Act, 2020, S.O. 2020, c. 18, Sched. 20, s. 2(1) and 3(3), Ministry of Infrastructure Act, 2011, S.O. 2011, c. 9, Sched. 27, s. 10(2), Expropriations Act, R.S.O. 1990, c. E.26, s. 7(1) and 8(1), Planning Act, R.S.O. 1990, c. P.13, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Auer v. Auer, 2024 SCC 36

facts:

The appellant, New Sunlight, and the respondent, Ontario, were negotiating an agreement under which New Sunlight would convey lands it owned in an area of Toronto known as East Harbour to Ontario, which the province required for a priority transit project. In exchange, Ontario would “upzone” New Sunlight’s remaining land, permitting it to be developed at a greater density. During these negotiations, and without notice to New Sunlight, the Lieutenant Governor in Council issued two orders in council (“OICs”). The first OIC designated New Sunlight’s East Harbour lands as “transit-oriented community land” [“TOC” land] under s. 2(1) of the Transit-Oriented Communities Act, 2020 (“TOCA”) (“First OIC”). This designation allowed for lands to be expropriated without a landowner having the right to a hearing of necessity before the Ontario Land Tribunal, which is an inquiry into whether the proposed expropriation is “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority.” The second OIC authorized Ontario to “enter on, take and expropriate” New Sunlight’s lands for the purposes of constructing the subject transit hub, extension, project, subway line and TOC (“Second OIC”).

New Sunlight brought an application for judicial review seeking to quash both OICs. The Divisional Court dismissed New Sunlight’s application, holding that the OICs were justifiably (or reasonably) within the scope of the authority delegated by the enabling legislation and consistent with the legislation’s overriding purpose or object. The Divisional Court concluded that subordinate legislation benefits from a presumption of validity, and New Sunlight had not discharged its burden to show a failure of rationality internal to the reasoning process, nor that the OICs were untenable in light of the factual and legal constraints that bear on them.

New Sunlight appealed the Divisional Court’s decision on four grounds.

issues:

1. Did the Divisional Court give insufficient weight to New Sunlight’s loss of the right to a hearing into whether the proposed expropriation was “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority”?

2. Did the Divisional Court fail to apply the guidance from Vavilov and Auer because Cabinet, in issuing the First OIC, had no information that anyone other than Cadillac Fairview, which requested the designation, owned the East Harbour lands, and was Cabinet thereby misled, leading to an irrational chain of analysis?

3. Was New Sunlight the subject of “administrative discrimination” because its lands were “lumped in” with Cadillac Fairview’s?

4. Did the Divisional Court err in holding that New Sunlight failed to establish bad faith or improper purpose on the part of Cabinet in issuing the Second OIC?

holding:

Appeal dismissed.

reasoning:

1. No.

The Court held that the Divisional Court’s conclusions in applying the Supreme Court of Canada’s decisions in Vavilov and Auer were clear and fully justified on the record.

The Court highlighted the relevant principles on vires review. Auer brought Vavilov’s presumption of “robust reasonableness review” to vires review. The task is one of determining vires validity: “challengers must demonstrate that the subordinate legislation does not fall within a reasonable interpretation of the delegate’s statutory authority”. If there is a justifiable and intelligible connection between the specific provisions of the enabling statute and its overriding purposes or objects, the subordinate legislation will not be ultra vires. The Court agreed with the Divisional Court’s application of these principles.

Section 7(1) of the Expropriations Act allows the affected landowner to get a “hearing of necessity”. However, access to such hearings is removed when the lands are designated as “transit-oriented community land” and the expropriation is for a “transit-oriented community project” under TOCA. The Divisional Court considered Ontario’s argument that “one purpose of TOCA is to exempt certain lands from a hearing of necessity, specifically to allow for timely and efficient acquisition of much-needed transit development.” In rejecting the appellant’s argument that “the blanket [TOC] designation for all of its land was unnecessary and detrimental, having removed its right to a hearing of necessity under the [Expropriations Act]”, the Divisional Court adverted to the purpose of the enabling Act and the surrounding context, which informed the link between the Act’s purpose and the aims of the challenged OIC. The Court agreed with the Divisional Court that “necessity” is not a legal constraint on Cabinet’s discretion to designate land under s. 2 of TOCA that might ultimately need to be expropriated. The legislature uses broad language to authorize designation of transit-oriented community land where it “is or may be required to support a transit-oriented community project”.

Given the number of prospective takings required to support construction of the 15-station Ontario Line, the Court found that it was no surprise that the Ministry wished to avoid hearings the result of which it had no intention of accepting, given TOCA’s objectives. The First OIC designating New Sunlight’s lands as “transit-oriented community land” was consistent with the Act’s purpose of allowing for timely and efficient acquisition of land for transit development.

2. No.

The Court held that New Sunlight’s argument on this ground was without merit. TOCA addresses the designation of land without regard to the identity of landowners. Cadillac Fairview was mentioned by name in the relevant briefing notes only because it was the party that raised concerns about the enforceability of the commitment to upzone residual lands. Those concerns were allayed by additional amendments to the Planning Act to the benefit of existing TOC agreement-holders such as Cadillac Fairview, and future agreement-holders, for which New Sunlight remained eligible. The Court held that Cabinet made a decision that was responsive to the context that was before it.

3. No.

The Court held that Cadillac Fairview gained no advantage that was not also available to New Sunlight in the TOC development scheme. It agreed with the Divisional Court’s finding that the First OIC “did not set out any distinctions across persons or classes and the concept of discrimination does not apply.”

4. No.

The Court agreed with the Divisional Court’s analysis leading to its conclusion that New Sunlight failed to establish bad faith or improper purpose on the part of Cabinet in issuing the Second OIC. The Cabinet’s aim in issuing the Second OIC, which was to negotiate an agreement that would allow New Sunlight to retain and develop the unused portions of the properties, was not inconsistent with the legislative scheme. Ontario’s submission that the Second OIC served as a “‘backstop’ to preserve project timelines in case negotiations broke down” was also consistent with the legislative purpose in achieving timely progress on transit development.

Demikon Construction Ltd. v. Oakleigh Holdings Inc., 2026 ONCA 808

[Miller, Trotter and Osborne JJ.A.]

Counsel:

J. Goode, M. P. Falco and H. Khan, for the appellants
R. J. Kennaley and J. E. O’Hearn, for the respondent

Keywords: Contracts, Construction, Liens, Vacating, Security, Reduction of Security, Statutory Interpretation, Construction Lien Act, R.S.O. 1990, c. C.30, ss. 14, 17, 28, 29, 44(5), Construction Act, R.S.O. 1990, c. C.30, Legislation Act, 2006, s. 64(1), Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, KingSett Mortgage Corp. v. Mapleview Developments Ltd., 2026 ONCA 512, Scott, Pichelli & Easter Limited v. Dupont Developments Ltd., 2022 ONCA 757, Pentad Construction Inc. v. 2022988 Ontario Inc., 2021 ONSC 824, Dependable Mechanical Systems Inc. v. Concord Adex Developments Corp., 2026 ONSC 21

facts:

The appellant Aurelia Limited Partnership (“Aurilia”) was the owner and developer of a mixed-use condominium project it was building in Orillia, Ontario known as The Matchedash Lofts. The appellant Oakleigh Holdings Inc. (“Oakleigh”) was its general partner. Aurelia entered into a standard form construction management contract with the respondent Demikon Construction Ltd. (“Demikon”) to be the general contractor and construction manager for the project.

Disputes arose between Aurelia and Demikon. Aurelia took the position that there were numerous delays and deficiencies in Demikon’s work and terminated the agreement on March 29, 2021. Since Demikon had not been paid in respect of all of its invoices for the supply of services or materials for the project, it registered a claim for a lien on March 31, 2021, in the amount of $5,035,812.66. In its March 29, 2021 letter, Aurelia had notified Demikon of its intention to continue paying certain of Demikon’s subcontractors who had completed work on the project, as per s.28 of the Construction Lien Act (the “Act”), and made various payments directly to subcontractors between March 5, 2021, and April 6, 2022, totalling $3,554,224.83. On April 30, 2021, Demikon commenced the underlying action within the permitted period and registered a certificate of action against title to the project thereby perfecting its preserved lien.

On May 7, 2021, Aurelia posted security in the full amount of the lien and brought a successful motion to vacate the lien. Aurelia then brought a motion for an order that the security be reduced from the amount posted of $5,085,812.66 to about $2.5 million, after getting credit for the $3,554,224.83 it had paid the Demikon’s subcontractors directly. The motion judge held that s. 28 was not limited in application to payments made to persons who have a lien, and reduced the security by that amount. The motion judge also found that there were “no sub-contractor liens on the project.” The Divisional Court allowed Demikon’s appeal, holding that s. 28 applies only to direct payments made to a “person having a lien.”

issues:

(1) Did the Divisional Court err in its interpretation of s. 28 of the Act?

a. If so, can Aurelia’s motion under s. 44(5) succeed despite the Divisional Court’s interpretation of s. 28?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court agreed with the Divisional Court that that s. 28 only applies to direct payments made to a person having a lien relating to any amount owing to them for services or materials supplied to the improvement. Section 28 of the Act reads as follows:

“Where an owner, contractor or subcontractor makes a payment without obligation to do so to any person having a lien for or on account of any amount owing to that person for services or materials supplied to the improvement and gives written notice of the payment or the intention to pay to the proper payer of that person, the payment shall be deemed to be a payment by the owner, contractor or subcontractor to the proper payer of that person, but no such payment reduces the amount of the holdback required to be retained under this Part or reduces the amount that must be retained in response to a written notice of lien given by a person other than the person to whom payment is made.” [Emphasis added.]

The Court found that to expand the scope of s. 28 to also apply to any person who had supplied services or materials to the improvement would render the words “owing to that person” meaningless and of no force or effect. To give those words effect, “that person” must refer back to the “person having a lien.” The Court further held that this reading was also the only one consistent with the last sentence of s. 28 about holdbacks, because a holdback matters only if there is a lien. That interpretation also fit s. 29, under which Part IV payments discharge the lien to the extent of the amount paid. The Court found this reading consistent with the purpose of the Act, which protects lien claimants through the mechanism of the lien and balances the interests of all stakeholders.

The Court saw no principled reason to protect an owner who pays a party that has no lien, whether because it was never entitled to one or because its lien was resolved or has expired. An owner can always pay a subcontractor, but that payment is not deemed to be a payment to the contractor under s. 28.

a. No.

The Court held that section 44(5) is mechanical as it gives the court discretion to reduce security where appropriate but does not say when a reduction is appropriate. That is the role of s. 28. Section 44(5) does not create a stand-alone right to treat an owner’s payment to a subcontractor as a payment to the contractor. The party seeking the reduction must prove that it is appropriate, including that the preconditions of s. 28 are met.

While the Act provides that the procedure in a lien claim action shall be as far as possible of a summary character, the Court noted that, having regard to the amount and nature of the liens in question, there must be some evidence in the record on which to base the determination. In this case, the motion judge made no findings of fact as to the extent (if any) to which the payments made by Aurelia directly to subcontractors met the statutory definition of payments made to a “person having a lien” so as to fall within the proper scope of s. 28. The motion judge also made the finding of fact that there were “no sub-contractor liens on the project.” The record also did not allow for determination of the appropriate quantum of the reduction, if any, as there was no evidence in the record of when the subcontractors who received direct payments from Aurelia last provided services or materials to the improvement. Given that at least some payments were made more than a year after the termination of the construction management contract by Aurelia, at least some liens would have expired. Accordingly, the Court could not determine whether those payees were persons having a lien at the time of the payments, or whether any liens they may have had were expired.

The record also left the following issues unresolved: some payments to subcontractors exceeded the amounts Demikon owed those subcontractors; it was unclear which payments covered work done for Demikon and which covered work done directly for Aurelia; and the record did not show how the discounts Aurelia negotiated with some subcontractors were calculated or applied.

The Court noted that the Act is not intended to penalize owners by requiring them to effectively pay for the same services or materials twice once by posting security to vacate the contractor’s lien for services or materials provided and the second time by paying directly a subcontractor for those same services and materials. A lien is limited to the amount owing to that person. The same applies in respect of the amount of security posted in lieu of a lien. There is no principled basis for a lien to be over-secured.

Finally, the Court held that nothing in the decision barred the appellant from bringing a fresh motion pursuant to s. 44(5) should they wish to do so. To succeed, it must show that each subcontractor it paid was a person having a lien at the time of the payment.

Waters Estate v. Henry, 2026 ONCA 704

[Huscroft, Zarnett, and Pomerance JJ.A.]

Counsel:

G.J. Tighe, K.C., S. Thiele and K. Bernofsky, for the appellant/respondent by way of cross-appeal
A. Gaertner and K.J. Sanchez, for the respondents/appellants by way of cross-appeal

Keywords:

Real Property, Wills and Estates, Powers of Attorney, Trusts, Resulting Trusts, Donative Intent, Breach of Fiduciary Duty, Unjust Enrichment, Remedies, Equitable Tracing, Civil Procedure, Evidence, Admissibility, Hearsay, Corroborative Evidence, Burden of Proof, Limitation Periods, Discoverability, Trials, Procedural and Natural Justice, Appeals, Evidence Act, R.S.O. 1990, c. E.23, s. 13, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5, Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 4, Pecore v. Pecore, 2007 SCC 17, Buffa v. Giacomelli, 2026 ONCA 566, Kerr v. Baranow, 2011 SCC 10, R. v. Baldree, 2013 SCC 35, R. v. McKinnon (1989), 70 C.R. (3d) 10, R. v. Badgerow, 2014 ONCA 272, leave to appeal ref’d [2014] S.C.C.A. No. 254, R. v. Evans, [1993] 3 S.C.R. 653, R. v. F.B.P., 2019 ONCA 157, R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.), Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854, Foley (Re), 2015 ONCA 382, Bank of Montreal v. Iskenderov, 2023 ONCA 528, Browne v. Meunier, 2023 ONCA 223, Pioneer Corp. v. Godfrey, 2019 SCC 42

facts:

The deceased was a wealthy businessman, economics professor and philanthropist. In 2009, he hired the respondent as a personal support worker for his housebound wife. Within weeks, he began transferring large sums to the respondent, including over $800,000 in her first month of employment. Between 2009 and December 2019, he transferred more than $30 million to the respondent in at least 393 transfers. About $19 million went to buying and renovating properties; much of the rest funded cars, trips, jewellery, and other personal spending. Some of the money belonged to the deceased’s wife, which he controlled under a power of attorney.

After his death, the appellant estate sued the respondent, her family members, and her companies for the return of the funds and the properties. It alleged that most transfers were investments subject to a resulting trust. The respondent claimed the transfers were gifts within a secret intimate relationship. She also counterclaimed for sexual battery, which the trial judge dismissed after rejecting her evidence as incredible.

The trial judge found that the respondent had rebutted the presumption of resulting trust for all transfers except those relating to King of Hearts, a horse farm and stable business. He held that the deceased kept an 80% beneficial interest in King of Hearts. He ordered the respondent to repay $2.85 million of the deceased’s wife’s money, along with $970,000 in outstanding loans. He also excluded all but one of the deceased’s handwritten notes as hearsay. He found some of the estate’s claims were statute-barred. In a later decision, he treated a $2.29 million mortgage on King of Hearts as a further gift to the respondent, to be borne by both parties in proportion to their interests. Both sides appealed.

issues:

Appeal

1. Did the trial judge err in reversing the burden of proof by requiring the estate to prove that the transfers were not subject to a resulting trust?

2. Did the trial judge err in finding that most of the deceased’s notes were inadmissible?

3. Did the trial judge err in applying s. 13 of the Evidence Act by treating the relationship as corroboration of the respondent’s evidence?

4. Did the trial judge err in finding some of the estate’s claims statute-barred under the Limitations Act, 2002 and the Real Property Limitations Act?

5. Did the trial judge err in dismissing the estate’s claim that the respondent breached a fiduciary duty owed to the deceased?

Cross-Appeal

6. Did the trial judge misapprehend or ignore evidence in finding that the deceased kept an 80% beneficial interest in King of Hearts?

7. Did the trial judge deny the cross-appellants procedural fairness by ordering funds from the deceased’s wife, a non-party, returned to her through the estate?

8. Did the trial judge err in finding a resulting trust and equitable tracing for the deceased’s wife’s funds?

holding:

Appeal allowed. Cross-appeal dismissed.

reasoning:

1. Yes.

The Court held that a gratuitous transfer gives rise to a presumption of resulting trust, since equity presumes bargains, not gifts. The transferee must prove the transferor’s contrary intention on a balance of probabilities. The trial judge stated the law correctly but did not apply it correctly. For most transfers, there was little or no evidence of the deceased’s intent, and the respondent generally could not recall any discussions about it. The trial judge treated the lack of loan documents as evidence of gifts. The Court held that, by looking for evidence of the deceased’s continuing interest, he effectively reversed the onus. It fell to the respondent to prove that the deceased gave up his interest, not to the estate to prove he kept it.

The trial judge also reasoned that, since some transfers were gifts, all of them were (except King of Hearts). The Court held that a single, uniform intention could not fairly be inferred for close to 400 transfers over a decade. A separate analysis of each transfer was not required. However, the evidence at least called for distinguishing property purchases from debt repayment and personal items.

2. Yes.

The trial judge excluded the notes because some of their details were contradicted by other evidence. The Court held that he applied the hearsay analysis to the wrong evidence. The estate did not offer the notes for the truth of their specific details. It offered them to show that the deceased treated the property transfers as investments. As such, the notes were an implied assertion of his continuing interest, and the issue was the reliability of that implied assertion. Necessity was obvious because the deceased had died. Since he wrote the notes to himself, there was no real risk that he was deceiving himself or mistaken about his own intentions.

The Court noted that the law of implied assertions remained largely undeveloped. The notes might also be admissible for a non-hearsay purpose, as circumstantial evidence, but that point had not been argued. The Court offered no firm view and left admissibility and weight to the judge at the new trial. It also found the trial judge’s treatment of the excluded notes hard to reconcile with his admission of the September note, which had similar inaccuracies. The notes also bore on the comeback issues, including the GTAR mortgage, which were left to the new trial.

3. Yes.

Section 13 of the Evidence Act requires that an interested party’s evidence in an action by or against an estate be corroborated by other material evidence. Corroboration must be independent evidence that makes it probable that the party’s evidence on a material issue is true. The Court held that the nature of a relationship may help show donative intent. However, the trial judge gave the relationship undue prominence, both to rebut the presumption and as corroboration. Most of the evidence about the relationship came from the respondent, and her evidence could not corroborate itself.

The doctor’s note and prescriptions could corroborate an intimate relationship, but they were more context than corroboration. Those facts could not show an intention to give more than $30 million. The $800,000 transferred in the respondent’s first month came before any long-standing relationship could have developed. The trial judge’s adverse credibility findings against the respondent made this especially important.

4. Yes.

The Court held that discoverability under both the Limitations Act, 2002 and the Real Property Limitations Act depends on the facts when a resulting trust is alleged. Here, it depended on the deceased’s intent at the time of each transfer, how the respondent treated the funds, and what the deceased knew or ought to have known. Those questions were bound up with the issues for the new trial.

5. Yes.

The trial judge rejected the fiduciary duty claim largely because he found that the deceased had gifted most of the money to the respondent for her own use. Since that finding was set aside, the conclusion that the respondent was not a fiduciary was also set aside. Whether the respondent owed the deceased a fiduciary duty, if the transfers were not gifts, was left to the judge at the new trial.

6. No.

The Court held that the findings on King of Hearts were open to the trial judge and showed no palpable and overriding error. Those findings rested on the September note, the deceased’s net worth statements, and his discussions with his advisors.

7. and 8. No.

The Court held that the deceased’s wife’s absence as a party did not entitle the respondent to keep her funds. The deceased had no authority to give those funds away, and the estate could pursue their return to honour his obligations to account for them. There was no prejudice to the respondent because the estate would repay the deceased’s wife and she could not pursue the respondent twice. The Court modified the order so that the estate must promptly pay the $1,938,000 to the wife. It also upheld the order that the respondent pay the $970,000 outstanding loan.

Toronto Star Newspapers Limited v. OpenAI, Inc., 2026 ONCA 814

[Miller, Favreau and Rahman JJ.A.]

Counsel:

C. Van Barr, M. Crichton, M. Crandall, H. Fisher and N. Cekic, for the appellants
M.J. Jilesen, S. Halwani, J. Lepore, D.R. Kapoor and J. Khaled, for the respondents

Keywords: Intellectual Property, Copyright, Civil Procedure, Jurisdiction, Real and Substantial Connection, Forum Non Conveniens, Service Outside Ontario, Setting Aside, Rules of Civil Procedure, r. 17.06, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 106, Copyright Act, R.S.C. 1985, c. C-42, s. 3(1)(a), Extra-Provincial Corporations Act, RSO 1990, c E.27, s.1(2), TeleZone Inc. v. Canada (Attorney General), 2008 ONCA 892, aff’d 2010 SCC 62, Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Sinclair v. Venezia Turismo, 2025 SCC 27, Pourshian v. Walt Disney, 2021 ONSC 4840, Sharp v. Autorité des marchés financiers, 2023 SCC 29, Clearview AI Inc. v. British Columbia (Information and Privacy Commissioner), 2026 BCCA 67, Keselman v. Marktech Services Inc., 2020 ONSC 487, IBC Advanced Technologies, Inc. v. Ucore Rare Metals Inc., 2019 NSCA 80, 582556 Alberta Inc. v. Canadian Royalties Inc., 2008 ONCA 58, H.M.B. Holdings Ltd. v. Antigua and Barbuda, 2021 SCC 44, Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265, aff’d 2017 SCC 34, Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196, Bridging Finance Inc. v. Sharpe, 2026 ONCA 432, Haaretz.com v. Goldhar, 2018 SCC 28, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18

facts:

The appellants (collectively, “OpenAI”) were alleged to have misappropriated the appellants’ journalistic content to build commercial AI products that are used by millions of persons in Ontario and worldwide. The claims arose from the appellants’ internet-based activities in crawling and scraping the web content and data of Canada’s largest news media organizations (the respondents), training the large language models powering ChatGPT, and reproducing and using the respondents’ copyrighted content for the appellants’ commercial purposes. The respondents brought an action alleging that OpenAI’s operations constituted breaches of the Copyright Act, breaches of contract, and unjust enrichment. The appellants, Delaware corporations, were served with the Statement of Claim outside of Ontario. They brought a motion under r. 17.06 of the Rules of Civil Procedure to set aside the service, and under s. 106 of the Courts of Justice Act to stay or dismiss the proceeding on the basis of absence of jurisdiction.

The appellants argued that a court, on a jurisdiction motion for a claim brought under the Copyright Act, must consider the Act’s territoriality in determining whether the statement of claim discloses “a reasonable cause of action.” This entails determining whether the misconduct alleged falls outside its territorial reach. They argued that this determination required the motion judge to apply the real and substantial connection test in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers (“SOCAN”). The motion judge rejected the argument that a determination of subject matter jurisdiction considers whether there is a sufficient connection between the jurisdiction and the offending conduct. Such analysis, she held, is properly part of in personam jurisdiction or jurisdiction simpliciter but has no application to subject matter jurisdiction. The motion judge concluded that the appellants were, in effect, attempting to argue the substance of the claim, and that these arguments were properly brought under a r. 21.01(1)(b) motion to strike the claim as disclosing no reasonable cause of action. The motion judge applied the test set out in Club Resorts Ltd. v. Van Breda and found that there was a good arguable case for finding at least one of the presumptive factors applied to entitle the court to assume jurisdiction over the dispute respecting each of the appellants. Specifically, the appellants were either carrying on business in Canada, were alleged to have committed wrongful acts in Canada, or were unjustly enriched because of the wrongful conduct in Canada. The appellants did not satisfy the motion judge that they had rebutted the presumptive connecting factors.

The motion judge also found Ontario to be the preferred forum. The location of witnesses was a neutral factor, and the law to be applied was that of Canada and Ontario, which favoured Ontario as a forum. There was no multiplicity of proceedings on the same legal issues: even though there were other proceedings brought by the Toronto Star against OpenAI entities in the United States, they were asserted under United States law. OpenAI also did not file any evidence showing that a judgment in Canada would conflict with any existing United States laws, thereby complicating enforcement. The motion judge found that, on the whole, the fair and efficient working of the Canadian legal system favoured allowing Canadian authors to bring claims against foreign companies for breaches of Canadian laws. The motion judge dismissed the motion with respect to the appellants. The appellants appealed on five grounds.

issues:

1. Did the motion judge err in identifying the correct legal principles for adjudicating subject matter jurisdiction?

2. Did the motion judge commit an error in finding in personam jurisdiction?

3. Did the motion judge err by finding jurisdiction based on claims that were precluded?

4. Did the motion judge err in finding the Van Breda connecting factors were not rebutted?

5. Did the motion judge err in not finding that Ontario was forum non conveniens?

holding:

Appeal dismissed.

reasoning:

1. No.

The motion judge did not err in identifying the correct legal principles for adjudicating subject matter jurisdiction. The motion judge correctly repeated the settled principle from Telezone that a court has jurisdiction “so long as the facts pleaded in the statement of claim raise a claim cognizable in the Superior Court”. The motion judge rightly rejected the application of SOCAN. The application of the real and substantial connection test in SOCAN was concerned with determining whether the court had in personam jurisdiction over the extraterritorial defendant and was not in addressing the question of whether there was subject matter jurisdiction. The motion judge made no error in so holding.

2. No.

The Court held that the motion judge did not err in finding in personam jurisdiction. The motion judge applied the test as articulated in Van Breda. On the first step of this test, the court is presumptively entitled to assume jurisdiction over a dispute involving a tort if there is a good arguable case supporting at least one of an open list of factors: (i) the defendant is domiciled or resident in the province; (ii) the defendant carries on business in the province; (iii) the tort was committed in the province; or (iv) a contract connected with the dispute was made in the province. If a plaintiff shows a good arguable case that a presumptive connecting factor exists, a defendant may still, on the second stage of the test, rebut the presumption by demonstrating that there is no real relationship between the dispute and the forum – that there is no “real and substantial connection”.

The appellants argued that the motion judge erred in her reliance on Van Breda. The Court disagreed. While the appellants correctly noted that Van Breda considered assumed jurisdiction in the context of a dispute concerning a tort, its framework of analysis was nonetheless applicable to the present case. The motion judge did not err in following the Divisional Court’s characterization in Pourshian v. Walt Disney of copyright infringement as “essentially a statutory tort”. The Copyright Act establishes rights through the creation of statutory causes of action for copyright infringement enforceable in private law. Such rights are justiciable by courts of inherent jurisdiction unless otherwise displaced by legislation, and the appellants did not identify any authorities to the contrary.

The appellants further argued that the motion judge erred by assuming jurisdiction based on breaches of rights under the Copyright Act that were not pleaded, and by expanding the pleading to include an allegation that the appellants had breached the respondents’ telecommunication rights by making copies of the respondents’ works available to the public. The Court found that the motion judge did not err in this regard, as she read the pleadings broadly, as she was entitled to do, and considered evidence in the record before her. On a jurisdiction motion, the appellants were required only to establish a real and substantial connection between alleged copyright infringement and Ontario. They were not required to do so with respect to every instance and modality of copyright infringement.

Regarding the broader claim that the motion judge erred in concluding that there was a real and substantial connection between the alleged copyright breaches and Canada, the appellants argued that the motion judge failed to distinguish among several different wrongs the appellants were alleged to have committed and to provide sufficient analysis of the connection between different breaches – web crawling, training, model infringement – and Ontario. The Court disagreed with this argument. The motion judge considered the record, including the evidence of the appellants’ experts and concluded that “to the extent that the infringing conduct includes the use of copyrighted material that is sent (transmitted) from or through Canada (through scraping or training) or sending copyrighted material back into Canada…then Ontario does have a real and substantial connection to the alleged breaches of the Copyright Act. The motion judge’s findings were entitled to deference. Ontario courts may assume jurisdiction so long as one of the presumptive connecting factors are shown, and here, there were three.

3. No.

The motion judge declined to address the appellants’ copyright pre-emption arguments on the basis that they were substantive arguments on the merits of the case rather than jurisdictional arguments. The appellants argued that the Copyright Act constitutes a complete code and ousts the respondents’ other claims in contract and unjust enrichment, which are duplicative of the copyright claims. The Court found that the motion judge made no error in disposing of this argument. The argument that the misconduct alleged fell outside of the territorial reach of the Copyright Act was, essentially, an argument that the claims disclosed no reasonable cause of action. The motion judge was right to hold that this would be a matter for a r. 21 motion and not a jurisdiction motion.

4. No.

The Court held that the motion judge did not err in law in not finding that the appellants had rebutted the three identified presumptive connecting factors. The motion judge’s findings were entitled to deference, and the appellants advanced little on appeal other than repeating the assertion that the motion judge made factual errors in finding that they carried on business in Ontario and that contracts were made in Ontario.

5. No.

The motion judge did not err in rejecting the appellants’ argument that the United States was a clearly more appropriate forum.

If a Canadian court has assumed jurisdiction over a dispute, a party moving for a stay on the basis of forum non conviens must show that their preferred forum is “clearly more appropriate”. The test for forum non conveniens is discretionary and a motion judge’s conclusion on the issue is entitled to deference. The motion judge applied the contextual factors identified in Van Breda and found that the relevant contextual factors favoured Ontario as the more appropriate, suitable, and convenient forum. The appellants argued that the motion judge erred in failing to consider that only a small portion of the wrongful conduct could be properly adjudicated in Ontario because it would be unworkable to treat a subset of the training as a distinct Canadian activity. They alleged that there was no separable conduct that could be cleanly divided between Canada and the United States and, as a result, this could give rise to inconsistent legal findings. The Court disagreed. In considering the appellants preferred forum, the motion judge turned her attention to the totality of the claims pleaded in the dispute and concluded that the existing proceeding in the United States did not risk an inconsistent outcome in the relevant sense. The Court agreed with the motion judge’s determination that the consideration under this factor is whether different courts may reach conflicting decisions in respect of the particular facts of this case, not whether courts in the United States and Canada may apply their respective jurisprudence to reach different conclusions on novel legal issues.

Sanayhie v. Durham (Police Services Board), 2026 ONCA 813

[Lauwers, Rahman and Brownstone JJ.A.]

Counsel:

S. Zacharias and S. Gaudet, for the appellants
B. L. Evans and K.Mitchell-Gill, for the respondent

Keywords: Torts, Malicious Prosecution, Wrongful Arrest, Civil Procedure, Trials, Juries, Jury Instructions, Jury Reconsideration, Sanayhie v. Durham Regional Police Services Board, 2025 ONSC 3822, Sacks v. Ross, 2017 ONCA 773, Maher v. The Great Atlantic & Pacific Company of Canada, Limited, 2010 ONCA 517, R. v. Abdullahi, 2023 SCC 19

facts:

The plaintiff/respondent, A.S, started an action against the Durham Regional Police Services Board and Constables J.H and K.P. A.S alleged that he was wrongfully arrested after he failed to leave a Tim Horton’s in the early hours of December 22, 2015. He also alleged that the officers used excessive force and that he was also subject to malicious prosecution when he was charged with assault with intent to resist arrest and assault causing bodily harm. The action was tried by a jury in January 2025. The jury did not find that A.S was wrongfully arrested nor did it find that the officers used excessive force in removing him from the business. The original verdict also found that the charges laid against A.S were not laid with improper motive or malice. However, the jury quantified $55,000 in damages for malicious prosecution, $3,390 for A.S for his legal expenses in defending the charges, and $5,000 in punitive damages. The written questions instructed the jury to enter damages figures “[w]ithout regard for your answers above [as to liability]”. But in his jury instructions, which accompanied the jury into their deliberations, the trial judge told the jury to enter zero for damages for malicious prosecution if they found there was no liability. The trial judge re-instructed the jury and sent them to reconsider the verdict. After deliberation taking about twenty minutes, the jury returned with a verdict sheet recording its finding that there had been malice in laying the charges. The jury again fixed damages in the same amount.

The defendants brought a motion seeking judgment in their favour and dismissing the entire action in accordance with the jury’s original verdict. Alternatively, they sought judgment dismissing the claims for wrongful arrest and excessive force and declaring a mistrial on the claim for malicious prosecution.

issues:

(1) Did the trial judge have the authority to provide new instructions to the jury?

(2) If so, did the trial judge follow the correct procedure in this case?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The Court affirmed that a jury may be sent back for further deliberations, prior to discharge, if the jury misunderstood the effect of its verdict or the instructions of the trial judge. The Court stated that jurors may be confused by deficient or conflating instructions, or jury questions that do not track with the instructions. It noted that jury questions must be clear; “[t]hey should be expressed as simply and clearly as possible” and they should be “neutrally expressed and should not nudge the jury towards a particular result”: Sacks v. Ross. Further, trial judges have an “overriding gatekeeping obligation to carefully scrutinize” the questions for compliance with these required characteristics: Sacks v. Ross. Accordingly, the Court found that it was permissible to send the jury back for reconsideration in this case, as the jury instructions did not track the jury questions, which led to an inconsistency in the first verdict.

(2) No.

The Court held that the judge’s comments on re-instruction improperly influenced the jury in completing its role as finders of fact.
The proper route on re-instruction would have been to instruct the jury that they should enter amounts for a head of damage only if they found liability in the first place, without speculating as to why the jury chose to do what they did initially.

Here, the trial judge did not explain that his earlier instruction was inconsistent with the words on the verdict sheet, but rather focused on the inconsistency in the jury’s finding that there was no malice or improper motive associated with the charges, and their cost award “presumably based on the finding of a malicious prosecution”. The Court found that this manner of re-instruction unnecessarily suggested that the jury meant to conclude the issue of liability in a certain way.

Accordingly, the Court allowed the appeal; set aside the judgment below as it related to the claim and damages for malicious prosecution, including the legal costs and punitive damages; and directed a new trial on the claim for malicious prosecution only.

SHORT CIVIL DECISIONS

Lawyers’ Professional Indemnity Company v. Sochnyeva, 2026 ONCA 809

[Gillese, Favreau and Nishikawa JJ.A.]

Counsel:

M. Carlson and Y. M. Kramer, for the appellant
M. Bradley, for the respondent

Keywords: Civil Procedure, Striking Pleadings, Appeals, Jurisdiction, Orders, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 19(1)(c), 110(1), Bernard v. Fuhgeh, 2020 ONCA 529, Pavletic v. Pavletic, 2023 ONSC 2547

Bhattacharyya v. Sarkar, 2026 ONCA 823

[Tulloch C.J.O., Rouleau and Lauwers JJ.A.]

Counsel:

N. Kohli, for the appellants
M. A. Klaiman, for the respondents

Keywords: Corporations, Not-for-Profit Corporations, Directors, Election, Canada Not-for-profit Corporations Act, S.C. 2009, c. 23, ss. 167, 169(2)(c), Canada Not-for-profit Corporations Regulations, SOR/2011-223, s. 72(1)

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.