In Canadian Union of Postal Workers v. Quebecor Media Inc., 2026 ONCA 562, the Court of Appeal dismissed the Canadian Union of Postal Workers’ (“CUPW”) appeal from the trial judge’s dismissal of their defamation action. CUPW brought an action against the respondent, Quebecor Media Inc. (“Quebecor”) for defamation arising from statements made in a broadcast and published article in July 2014 in relation to CUPW’s participation in a “Protest in Solidarity with Gaza” demonstration. The trial judge found that although the remarks were defamatory and suggested that CUPW supported terrorism and was associated with Hamas, they were fair comment and/or responsible communication subject to statutory privilege under s. 3(2) of the Libel and Slander Act, R.S.O. 1990, c. L. 12, which provides that: “a fair and accurate report in a newspaper or in a broadcast of the proceedings of a meeting lawfully held for a lawful purpose and for the … Read More
Repeated Property Transfer Breaches Will not be Tolerated by Court of Appeal
In Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd., 2026 ONCA 590, the Court of Appeal upheld an order to transfer property title after two refusals to close, noting that the would-be seller repeatedly breached its contractual obligations. This proceeding involved an agreement of purchase of sale (“APS”) that granted the responding party, Paterson Veterinary Professional Corporation (“Paterson”) a lease with an option to purchase. Paterson tendered in 2018 and the applicant, Stilton Corp. Ltd. (“Stilton”) refused to close. A court granted Paterson an order for specific performance of a prior settlement agreement, as well as a vesting order to facilitate the transfer. Stilton again refused to close when Paterson tendered in 2019. Stilton unsuccessfully attempted to appeal the vesting order, which included making an application to the Supreme Court of Canada. The Court of Appeal rejected Stilton’s motion to review the enforcement order, citing Stilton’s repeated breaches of its … Read More
Mitigating damages in a failed closing of a pre-construction house purchase agreement: Eyelet Investments Corp v Lin Zhou
When a purchaser of a real estate property fails to close and the vendor takes reasonable steps to sell the property at arm’s length, the measure of damages is usually the difference between the contract price and the resale price. However, as in Eyelet Investments, this is not always the case. A vendor of a pre-construction house has an obligation to mitigate their damages after a failed closing of the purchase agreement. If a purchaser intends to challenge the mitigation efforts and that the vendor failed to mitigate, it is the purchaser’s burden to prove the failure. Summary Judgment motion in Eyelet Investments Corp. v. Lin Zhou, 2025 ONSC 4434 In Eyelet Investments Corp. v. Lin Zhou, 2025 ONSC 4434 (CanLII), the purchaser requested supporting evidence from the vendor of their efforts to mitigate, which the vendor could not provide. At summary judgment, the motion judge found an adverse … Read More
Commercial arbitration or the Ontario Superior Court? Jurisdiction and the competence-competence principle applied from Peace River
Which forum is appropriate to determine jurisdiction of the underlying commercial dispute: the Ontario Superior Court of Justice or arbitration under the International Commercial Arbitration Act? In Bombardier Inc. v Alstom Rail Sweden AB, 2026 ONCA 528 (CanLii), the Ontario Court of Appeal reviewed this question under s. 9 of the International Commercial Arbitration Act, which incorporates the UNCITRAL Model Law on International Commercial Arbitration into Ontario law. The court upheld the competence-competence principle and the legal test for jurisdiction of arbitration set out by the Supreme Court of Canada in Peace River Hydro Partners v Petrowest Corp., 2022 SCC 41. The competence-competence principle holds that, normally, arbitrators should be permitted to rule first on their own jurisdiction. However, a court may rule on an arbitrator’s jurisdiction for pure questions of law or where questions of mixed fact and law require only a “superficial” consideration of the evidentiary record. A superficial review is one where … Read More
Can an employment contract be frustrated by a disability or illness of the employee in Ontario? Hill v B&B Towing
The Ontario Court of Appeal has affirmed that an employee’s illness or disability will frustrate an employment contract only in circumstances where the condition is sufficiently enduring to prevent the employee from performing the essential duties of the employment within a reasonable time. Temporary limitations that can reasonably be accommodated will generally not frustrate the contract. In Hill v 1359768 Ontario Inc. (B&B Towing), 2026 ONCA 577 (CanLii), the Ontario Court of Appeal reviewed a trial court decision involving a towing services company that was found to have constructively dismissed the employee by demoting him from the managerial position of road boss to a tow truck driver. The Court of Appeal did not find frustration of the employment contract in this case and affirmed the legal test to determine when this can occur. Legal Test: “The question is whether the employer has proven that the employee’s sickness, injury or … Read More
ChatGPT, do I have a case? 5 UK and US cases on AI and privilege in litigation
“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