COURT OF APPEAL SUMMARIES (AUGUST 24 – AUGUST 28) | Hutchinsons Law - SCRA Violations - Military Child Support - Military Divorce

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of August 24, 2026. It was a light week.

Continue Reading

In Minotar Holdings Inc. v. Ontario (Municipal Affairs and Housing) the majority of the Court dismissed the appeal from the application judge’s ruling that amendments to the Greenbelt Act that deemed certain portions of the Appellant’s land as part of the Greenbelt did not violated s. 96 of the Constitution Act, 1867 by ousting the jurisdiction of the superior court. The majority of the Court held that the impugned provisions of the Act did not violate the core jurisdiction of the superior courts and did not remove inherent procedural powers or subject-matter jurisdictions. The Court went on to hold that s. 96 does not block legislatures from retrospectively or retroactively targeting a specific party’s pending claims by repealing causes of action. Absent a violation of the division of powers or a right under the Charter, or an absence of clear and unambiguous language, none of which is was alleged here.

The dissent would have allowed the appeal, find that s. 96 guaranteed that the core jurisdiction of superior courts cannot be removed by either Parliament or provincial legislatures. Legislation that has the effect of removing any of the attributes of superior courts’ core jurisdiction is contrary to s. 96 and is therefore invalid. Neither Parliament nor the provincial legislatures can impair the core jurisdiction of superior courts so as to prevent them from playing their constitutionally guaranteed role.

In Wiebe v. Johnson & Johnson Inc., the Court dismissed three appeals from summary judgments holding that their product-liability claims concerning implanted hernia mesh were statute-barred pursuant to the Limitations Act. The Court held that, shortly after their final revision surgeries, and removal of the mesh, the Appellants knew or ought to have known the material facts necessary to commence their claims, but had failed to bring their claims within the two-year limitation period.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Minotar Holdings Inc. v. Ontario (Municipal Affairs and Housing), 2026 ONCA 606

Keywords: Constitutional Law, Torts, Public Officials, Jurisdiction of the Legislature, Statutes, Jurisdiction of the Court, Core Jurisdiction, Immunity, Bad Faith, Judicial Review, Interpretation, Legislative Powers, Misfeasance of Public Office, , Decision-Making Power, Constitution Act, 1867, ss. 92, 96, Parts VI, VII, Greenbelt Act, 2005, S.O. 2005, c. 1, ss. 2(1)3, 14.1(a)-(b), 19(1)-(5), 19.1, Designation of Greenbelt Area, O. Reg. 59/05, Designation of Greenbelt Area, O. Reg. 567/22, Greenbelt Statute Law Amendment Act, 2023, S.O. 2023, c. 22, Charter of Rights and Freedoms, Rebuilding Ontario Place Act, 2023, S.O. 2023, c. 25, Sched. 2, s. 17(2), Canadian Bill of Rights, S.C. 1960, c. 44, Buy Ontario Act (Public Sector Procurement), 2025, S.O. 2025, c. 27, Sched. 1, s. 11, Highway Traffic Act, R.S.O. 1990, c. H.8, s. 195.10, as amended by S.O. 2024, c. 25, Sched. 4, Ontario Free Trade and Mobility Act, 2025, S.O. 2025, c. 3, Sched. 5, s. 6, Ontario Heritage Act, R.S.O. 1990, c. O.18, s. 66.2, Rebuilding Ontario Place Act, 2023, S.O. 2023, c. 25, Sched. 2, s. 17, Special Economic Zones Act, 2025, S.O. 2025, c. 4, Sched. 9, s. 7, Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, Securities Act, R.S.O. 1990, c. S.5, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, 5185603 Manitoba Ltd v. Government of Manitoba, 2023 MBCA 47, Kitsilano Coalition for Children & Family Safety Society v. British Columbia (Attorney General), 2024 BCCA 423, Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172, Ontario Place Protectors v. HMK in Right of Ontario, 2024 ONSC 4194, Ontario Place Protectors v. Ontario, 2025 ONCA 183, Alford v. Canada (Attorney General), 2026 SCC 14, Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, Democracy Watch v. Canada (Attorney General), 2026 SCC 28 , MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, British Columbia (Attorney General) v. Le, 2023 BCCA 200, Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220, Dunsmuir v. New Brunswick, 2008 SCC 9, Babcock v. Canada, 2002 SCC 57, Abou-Elmaati v. Canada (Attorney General), 2011 ONCA 95, Florence Mining Co. v. Cobalt Lake Mining Co. (1909), 18 O.L.R. 275 (C.A.), British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, Abitibi Power and Paper Co. v. Montreal Trust Co., [1943] A.C. 536 (P.C.), Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40, Johnston v. Canadian Credit Men’s Trust Association, [1932] S.C.R. 219, Morier and Boily v. Rivard, [1985] 2 S.C.R. 716, Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, R. v. McGregor, 2023 SCC 4, S.E.I.U. Local 204 v. Broadway Manor Nursing Home (1984), 48 O.R. (2d) 225 (C.A.), References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, R. v. Verrette, [1978] 2 S.C.R. 838, Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, Authorson and Air Canada v. British Columbia, [1989] 1 S.C.R. 1161, Toronto (City) v. Ontario (Attorney General) 2019 ONCA 732, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, Quebec (Attorney General) v. Laroche, 2002 SCC 72, Smith v. City of London (1909), 20 O.L.R. 133 (H.C.), Phillips v. Eyre (1870), L.R. 6 Q.B. 1, OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, R. v. Kloubakov, 2025 SCC 25, Dean v. Mister Transmission (International) Limited, 2010 ONCA 443, Roncarelli v. Duplessis, [1959] S.C.R. 121, Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58, Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, Berardinelli v. Ontario Housing Corp., [1979] 1 S.C.R. 275, Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, Odhavji Estate v. Woodhouse, 2003 SCC 69, Three Rivers District Council v. Bank of England (No. 3), [2000] 2 W.L.R. 1220, Nelles v. Ontario, [1989] 2 S.C.R. 170, Resler v. Anglin, 2026 SCC 23, Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, Thibodeau v. Air Canada, 2014 SCC 67, Ernst v. Alberta Energy Regulator, 2017 SCC 1, Theratechnologies Inc. v. 121851 Canada Inc., 2015 SCC 18, Stamford Kiwanis Non-Profit Homes Inc. v. Municipal Property Assessment Corporation, 2025 ONCA 450, Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis, 2022), Dwight Newman and Lorelle Binnion, “The Exclusion of Property Rights from the Charter: Correcting the Historical Record” (2015) 52 Alta. L. Rev. 543, Erika Chamberlain, “When Unlawfulness Becomes Tortious: Misfeasance in a Public Office and Administrative Law” (2015), 44 Adv. Q. 489

Wiebe v. Johnson & Johnson Inc, 2026 ONCA 597

Keywords: Torts, Negligence, Civil Procedure, Limitation Periods, Discoverability, Due Diligence, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5(1), Clemens v. Brown and International Nickel Co. of Canada Ltd. (1958), 13 D.L.R. (2d) 488 (Ont. C.A.), Lawless v. Anderson, 2011 ONCA 102, Longo v. MacLaren Art Centre, 2014 ONCA 526, Fennell v. Deol, 2016 ONCA 249, Gordon Dunk Farms Limited v. HFH Inc., 2021 ONCA 681, Dale v. Frank, 2017 ONCA 32, Morrison v. Barzo, 2018 ONCA 979

Short Civil Decisions

Yang v. Xie, 2026 ONCA 598

Keywords: Family Law, Date of Separation, Unilateral Intention, Form 22A, Ceased Intimacy, Kassabian v. Marcarian, 2025 ONCA 239

Holden v. Holden,, 2026 ONCA 599

Keywords: Family Law, Divorce, Spousal Support, Periodic Support, Non-Compensatory Support, Lump-Sum Support, Equalization, Davis v. Crawford, 2011 ONCA 294, Family Law Act, R.S.O. 1990, c. F.3, Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008) (“SAAGs”), Mwanri v. Mwanri, 2015 ONCA 843, Fisher v. Fisher, 2008 ONCA 11, Yemchuk v. Yemchuk, 2005 BCCA 406

Haddock v. Haddock , 2026 ONCA 600

Keywords: Estates, Wills, Testamentary Intention, Conditional Bequest, Costs, Trezzi v. Trezzi, 2019 ONCA 978, Neuberger Estate v. York, 2016 ONCA 303, Muscat v Muscat Estate, 2025 ONCA 518, Salter v. Salter Estate (2009), 50 E.T.R. (3d) 227 (Ont. S.C.)

Fan v. Yan, 2026 ONCA 601

Keywords: Family Law, Procedural Fairness, Motions, Trial, Failure to Attend

Toronto Standard Condominium Corporation No. 2587 v. Rock Contracting Services & Management Inc, 2026 ONCA 602

Keywords: Motions, Summary judgement, Limitation period, Discoverability, Statute-Barred, Standard of review, AssessNet Inc. v. Taylor Leibow Inc., 2023 ONCA 577, Limitations Act, 2002, S.O. 2002, c. 24, s.5, 5(2), 5(1)(a)

Riordon v. Broley , 2026 ONCA 610

Keywords: Motions, Summary judgement, Adjournments, Procedural fairness, Delay, Agreement of purchase and sale, Hryniak v. Mauldin, 2014 SCC 7, Royal Bank of Canada v. Puzzolanti, 2018 ONCA 917, Turbo Logistics Canada Inc. v. HSBC Bank Canada, 2016 ONCA 222, Gionet v. Pingue, 2018 ONCA 1040, Khimji v. Dhanani, 69 O.R. (3d) 790 (C.A.)

Fernbrook Homes (Bass Lake) Limited v. Cameron Stephens Mortgage Capital Ltd, 2026 ONCA 603

Keywords: Contract Law, Contractual interpretation, Agreement of purchase and sale, Capital costs, Construction, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

CIVIL DECISIONS

Minotar Holdings Inc. v. Ontario (Municipal Affairs and Housing), 2026 ONCA 606

[Miller, Zarnett, and Monahan JJ.A]

Counsel:

J.C. Lisus, P. Fruitman, and J.C. Mastrangelo, for the appellant

S.Z Green and H. Evans, for the respondent

facts:

Designation of Greenbelt Area O. Reg. 59/05, a regulation made pursuant to Ontario’s Greenbelt Act, 2005, mistakenly designated the Appellant’s land as falling within the Greenbelt, a land reserve, restricting commercial development of the land. The Respondent officials had previously told the Appellant that the land would be excluded from the Greenbelt. When the Appellant objected, the respondent’s staff advised that a mistake had been made; the lands were inadvertently included in the Greenbelt and would be removed during the plan’s ten-year review in 2015. That was not done.

The Appellant brought an action in 2017 against the responsible Minister. The parties reached a settlement in 2022, removing most of the land from the Greenbelt. The settlement contemplated that the Appellant could renew its action if the settlement was breached. The next year, the legislature enacted the Greenbelt Statute Law Amendment Act that returned the Appellants land to the Greenbelt and extinguished the causes of action the Appellant could have brought against the Ministry.

The Appellant argues that the legislation is unconstitutional and violates the core jurisdiction of the superior courts granted by s. 96 of the Constitution Act, 1867 (the “Constitution Act”) by driving the result in pending or anticipated litigation. The application judge dismissed the application.

issues:

Is the impugned legislation in the Greenbelt Act inconsistent with s. 96 of the Constitution Act?

a. Does s. 96 of the Constitution Act prohibit the legislature from changing substantive law with retrospective effect in a manner that predetermines the outcome of pending litigation?

i. Does s. 96 bar specific types of substantive laws that retroactively predetermine the outcome of pending litigation by immunizing government actions taken in bad faith or by targeting the legal rights of specific parties?

b. Does s. 19(3) of the Greenbelt Act violate core jurisdiction by usurping the court’s authority to control its own process?

c. Does ss. 2(1)3 and 14.1(a)-(b) of Greenbelt Act violate s. 96 by rendering judicial review of administrative action illusory and blocking adjudication through the improper use of deeming provisions?

2. Should the unwritten constitutional principle of the rule of law be used to interpret s. 96 in a way that permits the court to invalidate the impugned provisions?

holding:

Appeal dismissed.

reasoning:

Majority (Miller J.A.)
1. No.

The application judge made no error in dismissing the Appellant’s argument based on s. 96. The impugned provisions do not violate the core jurisdiction of the superior courts and do not remove inherent procedural powers or subject-matter jurisdictions. Section 96 does not block legislatures from retrospectively or retroactively targeting a specific party’s pending claims by repealing causes of action. Absent a violation of the division of powers or a right under the Charter, or an absence of clear and unambiguous language, none of which was alleged here, such legislation is valid if it does not impair the protected inherent powers or subject matter jurisdiction of the superior courts.

The Court held that the function of s. 96’s constitutional home, Part VII of the Constitution Act, is to establish the judicial branch of government, specifically to establish the superior courts at the centre of Canada’s unitary judicial system, and to preserve their historical role. The protected core is very narrow and only includes “important jurisdictions which are essential to the existence of a superior court of inherent jurisdiction and to the preservation of its foundational role within our legal system.” (Ontario v Criminal Lawyers’ Association). Because core jurisdiction is structural, it does not provide an individual right of access to adjudication about any particular claim.

(a) No.

As noted above, the Court held that it is settled law that core jurisdiction is structural. The Court followed the Court’s ruling in Ontario Place Protectors v. Ontario. As in Ontario Place, the changes to the substantive law raised in the case at bar altered the legal rights of persons, but did not violate the core jurisdiction of the superior courts. Core jurisdiction is a matter of inherent procedural powers and subject-matter jurisdiction. Core jurisdiction is not concerned with the content or substance of property rights.

(i) No.

The Court held that the Appellant’s argument was inconsistent with the jurisprudence of this court, and that s. 96 of the Constitution Act did not bar the legislature from extinguishing bad faith and misfeasance claims against public officials. Making it more difficult to bring such claims does not violate the core jurisdiction of the superior courts. The Court noted that the Greenbelt Act’s “no remedy provision” had identical language to the Rebuilding Ontario Place Act, which was a point of contention in Ontario Place Protectors v Ontario. The court in Ontario Place Protectors ruled that this provision did not infringe on core jurisdiction. Moreover, s. 96 does not require legislation that extinguished private rights to be general in character. Because impugned provisions in the present case did not depart from this practice, they did not violate s. 96.

(b) No.

The Court held that s. 19(3) of the Greenbelt Act did not destroy or impair the superior courts’ inherent power to control its own processes. The provision preserved the court’s ability to interpret the statute, apply the facts, and determine whether a proceeding should be dismissed on the basis that it advances claims for legal rights that have been extinguished legislatively. The Court held that there is a significant difference between a statute that dismisses a proceeding that is before the courts, and one that merely changes the law that the court is required to apply. The legislature has the power not only to extinguish causes of action, but to direct that civil claims not be brought or maintained in the first place, as long as it does so by language that is clear and unambiguous.

The Court held that sections 2(1)3 and 14.1(a)-(b) of the Greenbelt Act were the product of particular land use planning decisions made by the legislature. The Court held that the legislature making law in this way rather than delegating decisions to administrative actors did not frustrate judicial review of administrative action nor the courts’ adjudicative function. The power of judicial review does not authorize the superior courts to judicially review legislation. Neither does it bar legislatures from implementing decisions through legislation rather than delegating decision-making power to administrative bodies.

The Court further held that there was no deeming-based s. 96 violation either. Section 92 of the Constitution Act provides the provincial legislature with jurisdiction over property and civil rights and matters of a local or private nature, empowering it to designate the Appellant’s land as falling within the Greenbelt land use planning categories. The Court held that deeming is simply one of multiple drafting techniques available to achieve that valid goal.

2. No.
The Appellant advanced further argument that the impugned provisions of the Greenbelt Act were inconsistent with the unwritten constitutional principle of the rule of law as the provisions did not advance a “proper legislative purpose”. This argument was rejected by the Court as there was no genuinely open question of constitutional interpretation before the court. The Court held that the Appellant’s submission would use an expansive conception of the rule of law, would destabilize the structure of the Constitution Act, and would be inconsistent with its purpose and history. The Court held that the Appellant’s submissions would transform a shield for the superior courts into a sword of judicial governance

Dissent (Monahan J.A.):

The dissent would have allowed the appeal.

Monahan J.A. outlined his dissent in three parts.

First, Monahan J.A. explained that s. 96 guaranteed that the core jurisdiction of superior courts cannot be removed by either Parliament or provincial legislatures. The core jurisdiction analysis protects the “very essence of the superior courts” and “extends whatever is needed in order to preserve the vigour and strength of those courts”. Monahan J.A. noted that it is well established that unwritten constitutional principles, particularly the rule of law, may be utilized to determine the purpose and scope of s. 96. Legislation that has the effect of removing any of the attributes of superior courts’ core jurisdiction is contrary to s. 96 and is therefore invalid. Neither Parliament nor the provincial legislatures can impair the core jurisdiction of superior courts so as to prevent them from playing their constitutionally guaranteed role.

Second, Monahan J.A. held that legislation that immunizes public officials from claims for misfeasance and bad faith impermissibly derogates from the court’s core jurisdiction. The tort of misfeasance in public office is concerned with the distinct harm resulting from bad-faith exercises of public power. Immunizing public officials who engage in such conduct from legal liability for such harm is inherently inimical to the rule of law. The rule of law requires that superior courts have independent authority to protect three fundamental values: (i) equality of all before the law, (ii) the creation and maintenance of an actual order of positive laws, and (iii) oversight of the exercise of public powers. Shielding deliberately unlawful conduct by public officials from effective legal redress for the damage caused by that conduct undermines all three of these values. The grant of immunity for misfeasance in public office or bad faith is inconsistent with the rule of law because it allows public officials who cause harm by deliberately abusing their legal powers to escape accountability for their misconduct. There can be no order of positive law or effective oversight of public power if those charged with implementing and administering the law are free to ignore it with improper intent.

Third, Monahan J.A. considers three possible counter arguments to his analysis, none of which he found sufficient to displace his prima facie conclusion that the provisions of the Greenbelt Act which immunizes public officials from claims for misfeasance and bad faith were inconsistent with s. 96 and of no force and effect.

Monahan J.A. did not agree with the Respondent’s argument that the preservation of a right of judicial review in 19(4) of the Greenbelt Act was sufficient to address any prima facie inconsistency with the Immunity Provisions and s. 96. The tort of misfeasance addresses different harms and serves different purposes than administrative law remedies such as judicial review. Preservation of judicial review in s. 19(4) does not provide the Appellant with an effective remedy for the losses it claims it suffered as a result of the alleged misfeasance and bad faith conduct of public officials. The fact that the statute permits the Appellant to seek judicial review was thus no answer to the Appellant’s assertion that immunizing public officials from its civil claim for misfeasance and bad faith is inconsistent with s. 96.

Monahan J.A. then reviewed the policy reasons which would justify upholding the Immunity Provision. He acknowledged that in the past the Supreme Court has endorsed absolute immunity provisions and relied in part on their policy rationale to uphold them. Despite these absolute immunity justifications, the respondent had not advanced any policy justification to support the Greenbelt Act’s immunity for misfeasance and bad faith conduct. In recent years, Ontario has begun inserting provisions immunizing public officials from actions for misfeasance and bad faith in a wide variety of statutes. The apparently routine practice of inserting such absolute immunity provisions in these enactments belies any claim that there are compelling or significant policy grounds justifying their specific inclusion in the Greenbelt Act.

In the third counter argument discussion, Monahan J.A. was not persuaded by the respondent’s submission that the Poorkid Investment Inc. v. Ontario (Solicitor General) and Ontario Place Protectors v. Ontario decisions were a complete answer to the constitutional challenge to the Immunity Provisions at issue on appeal. The court upheld the validity of the provision in Poorkid on the basis that the provision does no more than regulate the way in which disputes come before the superior court. The requirement to obtain leave did not offend the core jurisdiction of superior courts protected by s. 96 since the strength of a claimant’s case is determined by the superior court itself. Monahan J.A. did not regard this decision as having resolved the question of whether the Immunity Provisions were inconsistent with s. 96. Ontario Place Protectors upheld the validity of immunity provisions that were virtually identical to those at issue in this appeal. Monahan J.A. noted that the Appellants in Ontario Place Protectors had not commenced a civil claim, whether for misfeasance or any other cause of action. Nor was there any evidence that the Appellant’s private rights were at stake or that they were specifically affected by the relevant legislation. Because there was no actual action that had been extinguished by the absolute immunity provision in Ontario Place Protectors, the Court did not specifically address whether the grant of immunity in respect of claims for misfeasance or bad faith was inconsistent with s. 96. Monahan J.A. noted that, unlike Ontario Place Protectors, the Immunity Provisions in this case purported to extinguish actual claims for misfeasance and bad faith brought by the Appellant.

Given the forgoing, Monahan J.A. would have allowed the appeal.

Wiebe v. Johnson & Johnson Inc., 2026 ONCA 597

[Rouleau, Lauwers and Miller JJ.A.]

Counsel:

R. Howe and A. Adekunle-Fatokun, for the appellants

R. D. Linley and L. Kelley, for the respondents

facts:

The Appellants brought a claim relating to polypropylene mesh products manufactured by the respondents that were implanted in each of the Appellants during hernia repair surgeries. Each Appellant experienced significant complications following the surgery, requiring one or more revision surgeries to remove the mesh and repair the hernia. Each of the Appellants commenced their action more than three years after the final revision surgery and removal of the mesh. Two Appellants only retained counsel after seeing advertisement or discussion regarding problems with the mesh, and one Appellant retained counsel within the two-year period after the removal of the mesh but did not commence his claim until over three years after the removal.

The motion judge held that the claims were commenced outside of the two-year limitation period set by the Limitations Act, as each of the Appellant knew or ought to have known the material facts necessary to commence a claim within months of the final revision surgery and removal of the mesh.

The Appellants argued that their claims were not discoverable until they consulted legal counsel and learned the identity of the manufacturer of the mesh, that counsel believed the mesh products involved in their surgeries were defective and that litigation had a reasonable prospect of success.

The motion judge rejected this argument, finding that discoverability does not hinge on when a plaintiff consults a lawyer or when counsel decides that litigation has a reasonable prospect of success. The motion judge also found that each of the Appellants, with due diligence, ought to have discovered their claim shortly after the removal of the mesh.

issues:

Did the motion judge err in finding that the limitation period in each of the appellants’ claims had expired prior to their issuance?
a. Did the motion judge err in finding that with due diligence, the appellants ought to have discovered their claim shortly after the removal of the mesh?
b. Did the motion judge err by failing to make specific findings as to precisely when each element of the s. 5(1) test of the Limitations Act was met?

holding:

Appeal dismissed.

reasoning:

1. Did the motion judge err in finding that the limitation period in each of the appellants’ claims had expired prior to their issuance?
No.
The Court upheld the motion judge’s decision, that the limitation period in each of the appellants’ claim had expired.
(a) Did the motion judge err in finding that with due diligence, the appellants ought to have discovered their claim shortly after the removal of the mesh?
No.

The Court emphasized that the main question in a limitation period inquiry is whether the plaintiff knows enough material facts necessary to make a claim. The Court held that, although due diligence is not referred to in the Limitations Act, it is a part of the evaluation in s. 5(1)(b) and a plaintiff is required to act with due diligence in determining whether he has a claim.

The Court rejected the Appellants’ argument that the motion judge ought to have found that the limitation period only began to run after the Appellants were informed by counsel that the mesh they had been implanted with might have been defective. For each Appellant, the removal and revision surgery appeared to resolve the problems they were experiencing, so at that point, each of them knew or ought to have known of the elements in s. 5(1)(a). The Court held that it was not necessary for the Appellants to be certain of whether the respondents were liable.

The Court went on to hold that the Appellants could have easily identified the manufacturer by accessing their hospital records.

The Court further explained that the Appellants knew they had suffered injury or damage and that the mesh had not performed as expected and had to be removed, yet they took no steps to consider or explore who was responsible for the bad outcome of their hernia repairs. There was no indication that some previously unknown fact or information became available after the Appellants’ revision surgeries that identified the mesh as being responsible for the injury they suffered. The Court further concluded that merely being advised by a lawyer that a claim is appropriate is not a “material fact” that a plaintiff must know before the limitation begins to run.

(b) Did the motion judge err by failing to make specific findings as to precisely when each element of the s. 5(1) test of the Limitations Act was met?

No.

The Appellants relied on Morrison v. Barzo, where the court found that the motion judge had erred as she “did not make findings of fact as to when the Appellants knew of the matters listed in s. 5(1)(a) of the Limitations Act”. The Court rejected this argument, distinguishing Morrison from the case at bar on the grounds that the motion judge in Morrison did not explain the basis for finding that a reasonable person ought to have discovered the claim more than two years before its issuance. In the present case, the motion judge explained what each Appellant knew or ought to have known within months of their revision surgeries and that the claims were issued beyond the limitation period.

SHORT CIVIL DECISIONS

Yang v. Xie, 2026 ONCA 598

[Miller, Wilson and Madsen JJ.A]

Counsel:

W.X, acting in person

H.Du, for the respondent

Keywords: Family Law, Date of Separation, Unilateral Intention, Form 22A, Ceased Intimacy, Kassabian v. Marcarian, 2025 ONCA 239

Holden v. Holden, 2026 ONCA 599

[Miller, Wilson and Madsen JJ.A.]

Counsel:

J.A. Campbell, for the appellant

A. Weatherston and A.C. Livingstone, for the respondent

Haddock v. Haddock, 2026 ONCA 600

[Monahan, Wilson and Madsen JJ.A.]

Counsel:

R. P. Bohm and D.S. Lee, for the appellant

S. Clark, for the respondents

Fan v. Yang, 2026 ONCA 601

[Miller, Wilson and Madsen JJ.A.]

Counsel:

L.F, acting in person

E. Chang, for the respondent

Keywords: Family Law, Procedural Fairness, Motions, Trial, Failure to Attend

Toronto Standard Condominium Corporation No. 2587 v. Rock Contracting Services & Management Inc., 2026 ONCA 602

[Miller, Wilson and Madsen JJ.A.]

Counsel:

N. Colville-Reeves and E. Yao, for the appellant

K. Newton and C. Micucci, for the respondent

Riordon v. Broley, 2026 ONCA 610

[Miller, Wilson and Madsen JJ.A.]

Counsel:

S. Sanyal, for the appellant

J. Sanderson, for the respondent

Keywords: Motions, Summary judgement, Adjournments, Procedural fairness, Delay, Agreement of purchase and sale, Hryniak v. Mauldin, 2014 SCC 7, Royal Bank of Canada v. Puzzolanti, 2018 ONCA 917, Turbo Logistics Canada Inc. v. HSBC Bank Canada, 2016 ONCA 222, Gionet v. Pingue, 2018 ONCA 1040, Khimji v. Dhanani, 69 O.R. (3d) 790 (C.A.)

Fernbrook Homes (Bass Lake) Limited v. Cameron Stephens Mortgage Capital Ltd., , 2026 ONCA 603

[Miller, Wilson and Madsen JJ.A.]

Counsel:

J.D. McConville, for the appellant

S. Brunswick and V. Ostrovsky, for the respondents

Keywords: Contract Law, Contractual interpretation, Agreement of purchase and sale, Capital costs, Construction, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

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.

COURT OF APPEAL SUMMARIES (AUGUST 24 – AUGUST 28)

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

John PolyzogopoulosBlaney McMurtry LLP416.593.2953 Email

Table of Contents

CIVIL DECISIONS

Counsel:

facts:

issues:

holding:

reasoning:

Counsel:

facts:

issues:

holding:

reasoning:

SHORT CIVIL DECISIONS

Counsel:

Counsel:

Counsel:

Counsel:

Counsel:

Counsel:

Counsel:

Submit a Comment Cancel reply

Recent Posts

Recent Comments

Archives

Categories

Meta

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email