“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
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
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
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
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
No Strict Deadline for Initiating Mediation Before Seeking Arbitration
In J.P. Thomson Architects Ltd. v. Greater Essex County District School Board, 2025 ONCA 378, the Court of Appeal for Ontario considered the interpretation of a standard form dispute resolution clause (“GC18”) in a contract between an architectural firm and a public-school board. The appellant sought to mediate ongoing disputes after communications between the parties had deteriorated. When the respondent refused mediation, arguing the 30-day window had elapsed, the Applicant sought to appoint an arbitrator. The application judge agreed with the respondent, denying the request on the grounds that mediation was not sought within the prescribed period. On appeal, the Court of Appeal rejected the application judge’s interpretation of the clause imposing a strict 30-day deadline for initiating mediation, holding instead that GC18 only required parties to attempt to resolve disputes informally for at least 30 days before moving to formal mediation. Specifically, the Court of Appeal found there was … Read More
Recapping Shareholder Remedies and Oppression Claims
Shareholder oppression occurs when majority shareholders or those in control of a corporation engage in conduct that unfairly prejudices, disregards, or harms the interests of minority shareholders. This goes beyond routine business disagreements—it involves a misuse of corporate power that disproportionately impacts minority stakeholders. The issue is particularly common in closely held private corporations, where shares are not publicly traded, and minority shareholders typically have little ability to sell their interests or exit the business. As a result, they may find themselves trapped in a situation where their rights and investments are vulnerable. Recognizing and addressing shareholder oppression is essential for protecting minority rights and maintaining fairness in corporate governance. One-way shareholders may seek compensation for wrongdoings is through an “oppression” action. Ontario’s oppression remedy is set out in section 241 of the Ontario Business Corporations Act (“OBCA”). In addition to the OBCA, federally incorporated companies are governed by the … Read More
Unenforceability of Forum Selection Clause Upheld by Court of Appeal for Ontario
In Integrated Team Solutions PCH Partnership v. Mitsubishi Heavy Industries, Ltd., 2025 ONCA 297, the Ontario Court of Appeal reaffirmed the right of Ontario-based plaintiffs to pursue legal action in the province against international defendants when the alleged harm occurs locally. The case arose from a failure of emergency generators at a hospital in Kingston, prompting a lawsuit by the plaintiff, a project consortium, against multiple defendants, including foreign manufacturers, relating to the failure of the generators. The foreign defendants attempted to prevent the case from proceeding in Ontario, contending that any conflict should be resolved in a French court. However, the Court of Appeal rejected this argument. The motion judge’s finding—that the plaintiffs had adequately pleaded negligence and that the damage occurred in Ontario—was upheld. Significantly, the defendants’ failure to rebut the presumption of jurisdiction or distinguish the role of each foreign party proved fatal to their argument. The … Read More
A Refresher on Damages for Breach of Contract
When a contract is breached, the injured party may seek damages to recover their losses. The law recognizes three general categories of damages: expectation damages, reliance damages, and restitution damages. Each serves a distinct purpose in compensating a plaintiff and ensuring fairness in contractual disputes. Expectation Damages: The Standard Compensation The primary measure of damages for a breach of contract is expectation damages. These damages aim to place the plaintiff in the position they would have been in had the contract been performed as agreed. Courts may calculate this in various ways, including covering pre-contractual expenses or assessing the value of property at the time of trial. However, expectation damages are subject to legal principles such as reasonableness, mitigation, remoteness, and foreseeability. Reliance Damages: Compensating for Investments Made When expectation damages cannot be precisely calculated—such as when lost profits are too speculative—plaintiffs may seek reliance damages. These damages reimburse expenses … Read More
Recognition of Belgian Judgment Upheld by Court of Appeal for Ontario
The Ontario Court of Appeal in Roger Vanden Berghe NV v. Korhani of Canada Inc., 2025 ONCA 226 upheld the recognition of a Belgian court judgment, reinforcing Ontario’s approach to enforcing foreign judgments. The case involved a Belgian company in liquidation, seeking to recover unpaid invoices from an Ontario corporation. A Belgian court ruled in favor of the respondent, and the Ontario Superior Court of Justice recognized the judgment, finding that it met all legal criteria, including jurisdiction, finality, and a definite monetary award. The decision was appealed, with the appellant arguing improper service of the Belgian proceedings and ineffective legal representation and sought to introduce fresh evidence. The Court of Appeal dismissed these claims, holding that service had been properly effected and that allegations of ineffective counsel do not typically justify an appeal in civil cases. The court found no errors in the application judge’s analysis and reaffirmed that … Read More
Third Party Claims for Contribution and the Ultimate Limitation Period
The Ontario Superior Court of Justice recently dealt with an interesting question: When does an ultimate limitation period start to run on a third party claim for indemnity and contribution? In Ontario, a general ultimate limitation period of 15 years applies to causes of action under s. 15(2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Act”): 15(1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section. (2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place. [Emphasis added] Lower Williams Properties Ltd. v. Santaguida, 2025 ONSC 1132, was a motion brought … Read More
Protecting your Business Name and Brand Identity: Court Grants Permanent Injunction in Edgewater Park Lodge Inc. v. Cadman et al., 2025 ONSC 1295
The recent decision of the Ontario Superior Court of Justice in Edgewater Park Lodge Inc. v. Cadman et al., 2025 ONSC 1295 sheds light on key issues related to business name registration, passing off, and injunctive relief. In Edgewater Park Lodge, the applicant successfully sought a permanent injunction against the respondents for their use of the business name “Red Canoe Family Restaurant,” which the court found to be deceptively similar to the applicant’s existing “Red Canoe Restaurant.” The appellant, operating since 2018, had an established reputation and goodwill in its restaurant business, particularly under the name “Red Canoe Restaurant.” The respondents registered and operated “Red Canoe Family Restaurant” in 2023 within the same regional district. The appellant sought relief under the Business Name Act, R.S.O. 1990, c. B.17 (“BNA”), arguing that the respondents’ business name was misleading and likely to cause confusion among consumers. The applicant also sought compensation under … Read More