“ChatGPT, do I have a case?” Before you ask AI any legal question, be sure to take precautions to maintain privilege and confidentiality protection of the information you submit to an AI service. Without using AI for litigation properly, you may inadvertently lose privilege and confidentiality protection over the information you submit to AI. In Canada, the primary basis for asserting privilege are solicitor-client privilege and litigation privilege. To date, there has yet to be a leading case authority on the issues of AI use and legal privilege in Canada. Over the past year, international courts in the United Kingdom and United States have considered these very questions of privilege with AI use in the context of their own legal privilege and confidentiality laws. The reasoning of these courts can be informative how the Canadian courts may reason through these legal issues and fact scenarios in the future. Here … Read More
5 tips for prompting AI
** Before using AI for any legal questions or research, consult with a lawyer first to avoid waiving confidentiality or privilege protection when using AI. Be sure to read our blog post on protecting privilege with AI use in litigation here: https://www.gilbertsondavis.com/chatgpt-do-i-have-a-case-5-uk-and-us-cases-on-ai-and-privilege-in-litigation/ ** Here are 5 tips to keep in mind to improve the quality of the AI results when prompting AI for complex questions: 1. Keep it simple Give short, clear, specific, and direct instructions to AI to improve the chances AI will execute the task you intended Split complex issues and instructions into separate prompts to allow the AI to use more context window per instruction Iterate on the AI content by asking questions, correcting incorrect or misguided statements, challenging assumptions, and refining and expanding upon the result Describe the results you want so the AI has a clear objective 2. Manage the context Keep the information you … Read More
AI and Litigation Series in Canada – Introduction
In late 2025, AI achieved a breakthrough in chained reasoning capability marking a pivotal transition from static AI chatbots to multi-agent workflows that can follow a sustained reasoning path. This has opened the door to much more sophisticated step-by-step problem-solving by AI and its ability to follow detailed instructions. As AI progresses every month at remarkable speed, our role in managing AI to achieve the results we intend will change as AI changes. This is a moving target – the possibilities, opportunities, and risks in using AI will change month to month, model by model, and case by case. For AI use generally, the rapidly progressing quality of AI is changing our expectations of when and how to use AI. AI is becoming embedded in software tools and online services we use everyday, often as an invisible layer ‘under the hood’ that operates as the engine that powers these services. … Read More
Property Owner’s Duty to Warn Upheld by Court of Appeal for Ontario
In T.C.O. Agromart Ltd. v. Sutton Farms (Nacona) Ltd., 2026 ONCA 371, the Court of Appeal allowed an appeal finding that the respondent, Sutton Farms (Nacona) Ltd. (“Sutton Farms”), breached its duty under s.3(1) of the Occupier’s Liability Act by failing to warn of the hidden dangers of the bridge, and this breach was the accident’s factual and legal cause. An employee of the appellant, T.C.O. Agromart Ltd. (“Agromart”), was operating a crop sprayer across a private bridge owned by Sutton Farms. The bridge partially collapsed and the sprayer fell into the river. The trial judge found that the accident was caused by the driver’s negligence rather than the design, maintenance, or upkeep of the bridge. The Court of Appeal found that the trial judge conflated causation with the standard of care and failed to perform a standard of care analysis. The Court of Appeal added that the accident was … Read More
Enforcement of Superior Court Judgments in Ontario – an Introduction and Primer
After you obtain a judgment from the Superior Court of Justice (SCJ), this is often the beginning of the final step in the court process – enforcement and collection. This is a short guide outlining the steps involved in enforcing a Superior Court judgment for a monetary lump sum and achieving your just final result. Filing the judgment order with the court registrar At the court hearing for the judgment, the order from the judge is valid from the time the judgment is granted. However, to take effect and be enforceable against other parties, the order must be served and filed with the court registrar (court administration) to give notice to the parties involved and to be registered and verifiable in the courthouse system. Practically, this means that either the court clerk at the judgment hearing will send internally the judgment to be filed with the registrar, or you have … Read More
Loan or Gift: Much Ado About Documents
In Massaar v. Moneck, 2026 ONCA 467, the Court of Appeal dismissed an appeal of an order finding that the money advanced by the respondent to the applicant was a loan and not a gift, a finding that was found on a paper record. On the motion, Her Honour determined that she could fairly and justly decide the merits of the dispute on a paper record after determining there was no genuine issue requiring a trial. The Court of Appeal found that the motion judge’s discretion not to hold a mini-trial or trial requiring oral evidence is owed deference, unless it can be shown that there was a reversible error in that decision to decide the motion based on the documentary evidence that was filed. It was found that there was no error in the motion judge’s decision to proceed on the paper record. The record filed before the motion … Read More
Recognition of foreign court judgments in Ontario – First questions to consider
Ontario courts will generally recognize and uphold foreign judgments duly obtained and will not relitigate the underlying facts and issues if the foreign judgment is proven and final. In practice, this means that foreign judgments for definite sums of money will generally be recognized in the Ontario court, and namely those monetary judgments from jurisdictions where there is comity, i.e. mutual recognition of court judgments between the two jurisdictions in the past. There are exceptions and defences, however, to the recognition of foreign judgments. Ontario courts will examine whether the foreign judgment had or involved: evidence of fraud violations of natural justice legal substance or procedure contrary to public policy absence of a real and substantial connection of the jurisdiction to the subject matter lack of comity between the foreign jurisdiction and Canada For recognition of non-monetary judgments, the Ontario court will also consider the following questions: Are the terms … Read More
Toronto home price correction largest since early 1990s – when the pre-construction home sale will not close
Since their peak in 2022, home prices in the GTA have declined by more than 24% coupled with the lowest volume of home sales in years. The decline has led to builders being unable to obtain project financing causing years-long construction delays, and home buyers receiving a home value appraisal before closing that leaves them with a mortgage shortfall. For purchases of pre-construction homes, home buyers and sellers are now facing a real risk that their purchase and sale of a home will not close, raising the threat of a legal dispute. Navigating a party’s potential early exit from a purchase and sale agreement of a pre-construction condo or house can be a challenging and stressful financial event. Common scenarios that lead to a party considering an early exit include: appraisal or re-appraisal of the property value delayed construction by the builder buyer shortfall in mortgage financing changes to the … Read More
When the Documentary Evidence Speaks for Itself and Warrants an Application
In V2 Investment Holdings Inc. v. Mizrahi, 2026 ONCA 275, the Court of Appeal dismissed an appeal to set aside a judgment granted in favour of the respondent lender, V2 Investment Holdings Inc. (“V2”), relating to an outstanding $12.9 million dollar loan used to finance a partially completed mixed-use condominium development project in Ottawa (“the Project”). The purpose of the loan was to provide bridge-financing for the Project. The loan was guaranteed by multiple corporations and granted V2 a charge over the Project. One of the questions on appeal was whether the application judge erred in handing the case as an application rather than converting it into an action. The Court of Appeal found that the application judge did not err in handling the case as an application as there were no material factual disputes that required a trial. There was no dispute that the funds had been advanced, that … Read More
Insurers Out of Luck: Civil Fraud Cannot be Pleaded as Separate and Distinct
In Natario v. RBC Insurance Company of Canada, 2006 ONCA 263, the Court of Appeal refused to quash an appeal of an order preventing insurers from adding civil fraud defence. The insurers sought to rely on misrepresentations admitted by the insureds over a span of several years to deny coverage and eventually moved in 2025 for leave to amend their statement of defence to include a civil fraud defence. The motion judge dismissed the insurers’ motion on the basis that issuing leave to amend the pleadings would result in non-compensable prejudice to the insureds. The Court of Appeal held that the order was final because it deprived the insurers of the ability to advance a distinct substantive defence and that civil fraud was not duplicative of the insurers’ existing policy-based and good faith defences, but rather separate and distinct. The Court of Appeal relies on the Rules of Civil Procedure … Read More
Gilbertson Davis Welcomes Associate Lawyer William Muir!
Gilbertson Davis extends a warm welcome to our newest member William Muir. After obtaining an Honours B.Sc. in Economics (Dalhousie, 2011) and an M.A. in Economics (University of Toronto, 2012) William obtained his J.D. at the University of Toronto (2015), where he was Co-Editor-In-Chief of the University of Toronto Faculty of Law Review (2014-2015). William is a member of the Ontario Bar and has some 10 years of experience in civil litigation, involving practice in commercial, insurance and personal injury matters. William will maintain a practice at Gilbertson Davis in commercial and specialty litigation; he has a particular interest in legal information technology including AI-related disputes. William is a co-founder of a digital dealmaking platform to assist small and medium-sized businesses manage their business relationships. Among William’s publications and presentations is a paper entitled: “Class AMPs: Withdrawing the Corporate Veil on Judgment Proofing” (2014) University of Toronto Faculty Law Review … Read More
Carelessness is Not Enough to Amount to Civil Fraud the Court of Appeal Confirms
In Bank of Montreal v. Makhija, 2026 ONCA 221, the Ontario Court of Appeal confirmed that civil fraud requires proof of knowing or reckless misrepresentation and reliance and will not be found where the defendant reasonably believed the transaction was legitimate and did not make the misrepresentation relied upon. The Appellant, the Bank of Montreal (“Bank”), appealed the application judge’s findings that the Respondent, Master Manoj Makhija (“Makhija”) did not prepare or sign the Personal Financial Statement and that Makhija reasonably believed that the information provided to the Bank was truthful at the time of applying for a loan and credit facilities for his company, Seven Colors Entertainment Ltd. Makhija asserted that he himself had been duped by third parties who orchestrated a scheme to obtain financing for a printing business. Makhija asserted that he believed the printing business would go ahead and that the loan was for a legitimate … Read More
Location, Location, Location – Determining Jurisdiction when Liability is Contested in International Enforcement of Arbitration Award
In Sociedad Concesionaria Metropolitana de Salud S.A. v. Webuild S.p.A., 2026 ONCA 28, the Ontario Court of Appeal upheld a stay of Ontario enforcement proceedings on the grounds that Ontario was not the more appropriate jurisdiction and forum to determine liability. The Appellant, Sociedad Consulting Metropolitana de Salud S.A. (“Sociedad”), sought recognition and enforcement of the Arbitration Award in Ontario against the Respondent, Webuild S.p.A. (“Webuild”). Webuild was not a party to the arbitration. Sociedad’s position was that following restructuring proceedings in Italy, some of the award debtor’s assets were spun off to Webuild and argued that Webuild acquired the award debtor’s liability for the Arbitration Award through this spin off. Webuild denied this assertion and argued that Sociedad’s ability to enforce the Arbitration Award against Webuild had not yet been determined, and that whether Webuild assumed the award debtor’s liabilities related to the arbitration was a threshold issue which … Read More
To Grant or Not to Grant: Summary Judgment Motion
In Kotsopoulos v. Toronto (City), 2026 ONCA 121, the Ontario Court of Appeal allowed an appeal dismissing the summary judgment motion after finding one was not suitable in the circumstances. The dispute in this matter arose after the plaintiff fractured her ankle after stepping onto the unpaved portion of the roadway to avoid two cars passing each other in opposite directions. The plaintiff alleged that she injured her ankle within the municipal road allowance. The City took the position that it was not responsible for any injury sustained because the location of the injury was subject to the statutory bar in s.42(4)(b) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A. and brought a motion for summary judgment to dismiss the claim against it on this very basis. The motion judge granted the motion and dismissed the claim against the City. Arguing that the motion judge … Read More
When a Seller Backs Out, Specific Performance Remains the Exception and Not the Rule
A recent Ontario Court of Appeal decision, Rabinowitz v. 2528061 Ontario Inc., 2026 ONCA 21, was allowed in part, as the Court upheld a lower court’s decision not to grant specific performance in a failed commercial real estate transaction, while also finding that the 12% interest charged under a mortgage did not infringe the Interest Act. Despite finding that the seller had repudiated the agreement of purchase and sale, the trial judge declined to grant specific performance. Specific performance is an equitable, discretionary remedy grounded firmly in the facts of the case. The Court of Appeal found that the trial judge correctly applied the governing principles to determine that the purchaser did not meet the burden of demonstrating that: 1) The property was unique; and 2) Damages would be an inadequate remedy. Regarding the mortgage issue, the sixth-month mortgage was given 0% interest, then 12% thereafter with no tying of … Read More
Don’t Let a Judgment Sink You: Summary Judgment Ruling Regarding A Boat Warranty Dispute Set Aside
In McIlwain v. Len’s Cove Marina Ltd., 2025 ONCA 434, the Ontario Court of Appeal overturned a $138,000 default judgment after finding that the defendant, a marina, had a plausible excuse for not responding to a lawsuit and a legitimate defence worth hearing. The dispute in this matter arose after the plaintiff purchased a new boat and trailer from the defendant. He later alleged the boat had serious structural defects and filed a claim seeking nearly $200,000 in damages. The Marina, relying on communications with the manufacturer believed the issue was being addressed under warranty. While the plaintiff rejected the proposed warranty repair (which required transporting the boat from Thunder Bay to the dealership), the defendant marina did not file a defence — and was eventually noted in default. When the defendant learned of the default judgment months later, it promptly moved to set it aside. The motion judge refused, … Read More
Termination Clause Providing Minimum Employment Entitlements Upheld by the Court of Appeal for Ontario
In Bertsch v. Datastealth Inc., 2025 ONCA 379, the Court of Appeal for Ontario addressed the enforceability of a termination clause through the lens of a Rule 21 motion. The appellant was terminated without cause after 8.5 months of employment. Their employment contract provided that, upon termination with or without cause, they would receive only the minimum entitlements under the Employment Standards Act, 2000 (ESA). The appellant argued the termination clause was void for potentially violating the ESA and sought damages for wrongful dismissal. The central legal issue revolved around whether the termination clause was enforceable, and more specifically, whether the issue could properly be decided under Rule 21.01. The Court confirmed that interpretive questions regarding the enforceability of a termination clause are appropriate for Rule 21 motions, which can dispose of legal issues without a full trial when the facts are not in dispute. The motion judge found no … Read More