In B.E. v. O.R., the Court granted in part a motion for directions about the extent to which protective measures should be taken to guard privacy and dignitary interests during the civil appeal process. Applying Sherman Estate, the Court held that the parties’ privacy and dignitary interests could be adequately protected by a publication ban prohibiting publication of their names and other identifying information, together with a limited sealing order for certain medical records. The Court declined to order that the appeal be heard in camera or that the Court’s future reasons be subject to an anticipatory publication ban.

In Painchaud v. Krimker, the Court allowed an appeal from the dismissal of a professional negligence claim against a real estate agent. The appellants had entered into an unconditional agreement to purchase a property but decided not to proceed, mistakenly believing they could walk away by signing a mutual release. The respondent real estate agent failed to correct this misunderstanding or advise them of their potential liability for breach and admitted to lying to the vendors about the status of the purchase. The appellants settled with the vendor and sued the agent for professional negligence. The Court found that the trial judge erred by limiting his analysis to whether the agent misled the appellants and by relying principally on the appellants’ signatures to conclude that the agent had explained the agreement. The appeal was allowed and a new trial was ordered.

In Dalren Limited v. Loadstar Trailers Inc., a dispute arose over whether the old Construction Lien Act regime applied, or the post-2017 Construction Act regime applied, which latter Act introduced the prompt payment provisions. The Court dismissed the appeal, agreeing with the application judge that the old Act applied, as that was the act in effect when the procurement process for this project began, even though the site for the project changed between the time of the procurement process started and the signing of the contract.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

B.E. v. O.R., 2026 ONCA 501

Keywords: Intentional Torts, Assault and Battery, Civil Procedure, Appeals, Open Court Principle, Publication Bans, Sealing Orders, Anonymization Orders, In Camera Hearings, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b), 7(1), Criminal Code, R.S.C. 1985, c. C-46, ss. 486.4(1)-(2), 278.3, 278.4-278.7, 278.9, 278.92-278.95, Rules of Civil Procedure, rr. 61.09, 61.10, 61.10.1 & 61.11, Sherman Estate v. Donovan, 2021 SCC 25, R. v. D.V., 2025 ONCA 67, Law Society of Ontario v. AA, 2026 ONCA 47, R. v. T.W.W., 2024 SCC 19, R. v. Paterson (1998), 122 CCC (3d) 254 (BCCA), R. v. J.O.P., 2025 ONCA 121, R. v. Starnaman, 2026 ONCA 183, S.E.C. v. M.P., 2023 ONCA 821

Painchaud v. Krimker, 2026 ONCA 494

Keywords: Torts, Professional Negligence, Real Estate Brokers, Contracts, Real Property, Agreements of Purchase and Sale of Land

Dalren Limited v. Loadstar Trailers Inc., 2026 ONCA 500

Keywords: Contracts, Construction, Liens, Construction Act, R.S.O. 1990, c. C.30, s. 87.3, Rules of Civil Procedure, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Caledon (Town) v. 2220742 Ont. Ltd. o/a Bronte Construction, 2024 ONSC 4555, Mercer Limited v. Intact Insurance Company, 2024 ONSC 6466, Crosslinx Transit Solutions Constructors v. Form & Build Supply (Toronto) Inc., 2021 ONSC 3396, DNR Restoration Inc. v. Trac Developments Inc., 2023 ONSC 1849, Phoenix Assurance Co. v. Bird Construction Co., [1984] 2 S.C.R. 199, Ravenda Homes Ltd. v. 1372708 Ontario Inc., 2017 ONCA 834, Northern Electric Co. v. Manufacturers Life Insurance Co., [1977] 2 S.C.R. 762, Hamilton (City) v. Cipriani, [1977] 1 S.C.R. 169, Parkland Plumbing & Heating Ltd. v. Minaki Lodge Resort 2002 Inc., 2009 ONCA 256, Leyburn Electrical Ltd. v. Merton Development Corp., [1998] O.J. No. 2428, HVAC Depot & Metal Mfg. Inc. v. Global HVAC & Automation Inc., 2024 ONSC 5752.

Short Civil Decisions

Smith v. Oliphant, 2026 ONCA 488

Keywords: Civil Procedure, Appeals, Perfection, Extension of Time, Costs, Panel Review, Courts of Justice Act, R.S.O. 1990, c. C.43, section 7(5), Weidenfeld v. Weidenfeld, 2022 ONCA 860

Victor v. Cox, 2026 ONCA 504

Keywords: Substitute Decisions, Guardianships, Property, Personal Care, Civil Procedure, Orders, Enforcement, Contempt, Appeals, Jurisdiction, Final or Interlocutory

Mexico v. Burr, 2026 ONCA 506

Keywords: Contracts, International Arbitration, Civil Procedure, Arbitral Awards, Setting Aside, Standard of Review, Procedural Fairness, North American Free Trade Agreement, Article 1105, Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939

Grozelle (Re), 2026 ONCA 514

Keywords: Bankruptcy and Insolvency, Costs

Chijindu v. Public Guardian and Trustee, 2026 ONCA 513

Keywords: Substitute Decisions, Public Guardian and Trustee, Civil Procedure, Jurisdiction

CIVIL DECISIONS

B.E. v. O.R., 2026 ONCA 501

[Dawe J.A.]

Counsel:

M.P. Falco and K. Dhaliwal, for the appellant

A. Matas, for the respondent

Keywords: Intentional Torts, Assault and Battery, Civil Procedure, Appeals, Open Court Principle, Publication Bans, Sealing Orders, Anonymization Orders, In Camera Hearings, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b), 7(1), Criminal Code, R.S.C. 1985, c. C-46, ss. 486.4(1)-(2), 278.3, 278.4-278.7, 278.9, 278.92-278.95, Rules of Civil Procedure, rr. 61.09, 61.10, 61.10.1 & 61.11, Sherman Estate v. Donovan, 2021 SCC 25, R. v. D.V., 2025 ONCA 67, Law Society of Ontario v. AA, 2026 ONCA 47, R. v. T.W.W., 2024 SCC 19, R. v. Paterson (1998), 122 CCC (3d) 254 (BCCA), R. v. J.O.P., 2025 ONCA 121, R. v. Starnaman, 2026 ONCA 183, S.E.C. v. M.P., 2023 ONCA 821

Facts:

The appellant, O.R., brought a motion for directions about the extent to which protective measures should be taken to guard his and the respondent B.E.’s privacy and dignitary interests during the civil appeal process. B.E. and O.R., both adult men, had each accused the other of sexually assaulting them. B.E.’s civil suit against O.R. was successful at trial, while O.R.’s counterclaim against B.E. was dismissed. O.R. appealed the trial judgment.

Both parties agreed that their names should be anonymized and that they should be referred to publicly using initials. They also agreed that a sealing order should be made over the court file but disagreed about the scope of the order. O.R. sought a further order that the public be excluded from the hearing of the appeal, and a publication ban be put over the court’s reasons. B.E. did not agree that either of those measures were necessary or justified.

Issues:

1. Do the Sherman Estate principles justify sealing the court file and/or making other protective orders that are directed at safeguarding important public interests?
i. Should a sealing order be made, and if so, what should its scope be?
ii. Should an anonymization order be made?
iii. Should the appeal be heard in camera?
iv. Should there be a publication ban over the court’s future reasons for judgment on the appeal?

Holding:

Motion granted, in part.

Reasoning:

1. Yes, in part. Under the Sherman Estate framework, a party seeking to limit court openness must establish that: (i) court openness poses a serious risk to an important public interest, (ii) that the order sought is necessary because reasonably alternative measures will not prevent the risk, and (iii) that the benefits of the order outweigh its negative effects.

The Court found that some limits on the open court principle were justified to protect the important public interest of safeguarding B.E. and O.R.’s dignity. It further found that three documentary materials in the court file met the Sherman Estate threshold: information about the parties’ sexual assault allegations, information containing references regarding their sexual orientations, and personal medical records. The Court found that these categories contained information that was sufficiently sensitive such that there was a serious risk that, without an exceptional order, the affected individual would suffer an affront to their dignity. However, the Court concluded that this objective could have been largely achieved by an order prohibiting publication of O.R. and B.E.’s names, or any information that would identify them, supplemented by a more limited sealing order than either party had proposed.

i. Yes, in part. The Court was not persuaded that sealing the entire court file would be necessary or proportionate because the parties had not demonstrated that a publication ban alone would fail to substantially protect their dignitary interests. As a result, it found that a sealing order should only be made in relation to the copies of a subset of B.E. and O.R.’s personal medical records. The Court did not accept B.E.’s proposal that the Appeal Book and Compendium be sealed in its entirety. Medical records that directly bore on O.R.’s first ground of appeal were not sealed because preventing the public and the media from examining directly relevant evidence would do significant harm to the open court principle. The balance of competing public interests tipped in favour of sealing medical records containing B.E.’s mental health history and the more voluminous medical records in the Exhibit Book.

ii. Yes, in part. The Court found that the appeal should be anonymized in the sense that B.E. and O.R. should be referred to by initials in the style of cause and in any materials published by the Court. However, the Court declined to order the redaction of existing documents in the trial record that contained the parties’ names, or include other information that might reveal their identities, because their dignitary interests would be adequately protected by an order prohibiting publication of that information. The Court was not prepared to order that the entire court file be anonymized but was satisfied that anonymization remained appropriate in a more limited sense since the parties would continue to be identified by initials in the style of cause and in any new documents created for the appeal.

iii. No. The Court did not agree that the appeal should be heard in camera, finding that such a significant interference with the open court principle was neither necessary nor proportionate. The airing of sensitive information in court would only jeopardize B.E. and O.R.’s dignitary interests if their identities were also disseminated or revealed more broadly. The Court found that the publication ban would adequately protect them from this risk and was confident that counsel for both parties’ would be able to avoid mentioning revelatory facts in open court.

iv. No. The Court declined O.R.’s request for an anticipatory order banning publication of the court’s as-yet unwritten reasons for judgment. It found that the request was premature because the panel that will hear O.R.’s appeal will likely be able to craft reasons that do not reveal the parties’ identities. The Court also found that important policy reasons weighed against prohibiting publication of the Court’s decisions. Finally, the Court found that the protective orders being made should have been understood as interim orders that would remain in effect only until the hearing of the appeal or until they were set aside or varied by a judge or panel. Therefore, it would be up to the panel that hears the appeal to decide whether an order banning publication of its reasons would be necessary and proportionate under the Sherman Estate test.

Painchaud v. Krimker, 2026 ONCA 494

[Roberts, Coroza, Pomerance, JJ.A.]

Counsel:

S. Bieber and D. Ionis, for the appellants

G.J. Tighe and D. Risteska, for the respondents

Keywords: Torts, Professional Negligence, Real Estate Brokers, Contracts, Real Property, Agreements of Purchase and Sale of Land

Facts:

This appeal arises out of a failed residential real estate purchase. The appellants worked with the respondent as their real estate agent to purchase residential property in Toronto. The appellants entered into an unconditional agreement of purchase and sale that required the delivery of a deposit. The appellants decided not to proceed with the purchase and did not deliver the deposit. They mistakenly understood that they could walk away from the purchase and sign a mutual release. They asserted that the respondent had told them they could do this.

According to his evidence, the respondent did not correct the appellants’ misunderstanding or advise that they would be in breach of the agreement of purchase and sale if they did not deliver the deposit and could be liable in damages to the vendors. He admitted that he lied to the vendors of the property and their agent that the purchase was going ahead. The vendors learned that the purchase would not go ahead and brought an action against the appellants for breach of the agreement.

The appellants settled the vendors’ claim and brought a third-party claim against the respondents for negligence, asserting that the respondent was in a relationship of trust with the appellants. The trial judge dismissed the claim.

Issues:

Did the trial judge make reversible errors in applying the law of professional negligence?

Holding:

Appeal allowed.

Reasoning:

Yes, the trial judge made reversible errors in applying the law of professional negligence. First, the trial judge erred in limiting the respondent’s misconduct to misleading the appellants. The evidence demonstrated the respondent had other conduct that could amount to negligence and breach of fiduciary duty. These included:

(a) The respondent’s failure to advise the appellants of their potential liability for breaching the agreement at all stages of the negotiation of the agreement of purchase and sale including after the agreement of purchase and sale was finalized; and

(b) The respondent actively lying to and misleading, in his capacity as the appellants’ agent, the vendors and their agent about the status of the purchase, and his apparent failure to keep the appellants apprised of his communications with the vendors and their agent.

The Court then moved on to the standard of care analysis to see if this conduct met the standard of care that the respondent owed. The Court held that the applicable standard of care required the respondent to advise the appellants of,

(a) any important terms in an agreement of purchase and sale;
(b) the consequences of signing an agreement of purchase and sale; and
(c) their potential risks and liabilities.

The respondent reviewed the terms of the agreement with the appellants. However, he admitted that he did not recall talking to the appellants about the mutual release clause. Moreover, the respondent testified that he did not recall advising the appellants of the consequences of signing the unconditional offer or of their potential liability under the agreement, including if they did not go through with the purchase.

In light of this evidence, the trial judge erred in relying principally on the existence of the appellants’ signatures and initials to support his finding that the respondent had gone through and explained the agreement of purchase and sale to the appellants. The Court declined the appellants’ request that it find that the respondent had breached the standard of care. That would require numerous findings of fact and credibility, which the Court declined to make on the record before it. The judgment was therefore set aside and a new trial before a different judge was ordered.

Dalren Limited v. Loadstar Trailers Inc., 2026 ONCA 500

[Coroza, Madsen and Rahman JJ.A.]

Counsel:

R.J. Kennaley and J. E. O’Hearn, for the appellant

J. C. Russell, for the respondents

Keywords: Contracts, Construction, Liens, Construction Act, R.S.O. 1990, c. C.30, s. 87.3, Rules of Civil Procedure, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Caledon (Town) v. 2220742 Ont. Ltd. o/a Bronte Construction, 2024 ONSC 4555, Mercer Limited v. Intact Insurance Company, 2024 ONSC 6466, Crosslinx Transit Solutions Constructors v. Form & Build Supply (Toronto) Inc., 2021 ONSC 3396, DNR Restoration Inc. v. Trac Developments Inc., 2023 ONSC 1849, Phoenix Assurance Co. v. Bird Construction Co., [1984] 2 S.C.R. 199, Ravenda Homes Ltd. v. 1372708 Ontario Inc., 2017 ONCA 834, Northern Electric Co. v. Manufacturers Life Insurance Co., [1977] 2 S.C.R. 762, Hamilton (City) v. Cipriani, [1977] 1 S.C.R. 169, Parkland Plumbing & Heating Ltd. v. Minaki Lodge Resort 2002 Inc., 2009 ONCA 256, Leyburn Electrical Ltd. v. Merton Development Corp., [1998] O.J. No. 2428, HVAC Depot & Metal Mfg. Inc. v. Global HVAC & Automation Inc., 2024 ONSC 5752.

Facts:

Loadstar and 197 invited Dalren, a general contractor, to submit a proposal to construct a trailer manufacturing facility for Loadstar. In December 2017, Dalren provided a preliminary proposal to build the facility at premises known as “Thompson Street”. Negotiations over the proposal and price delayed the execution of the contract to construct the project for the next three years. In December 2020, Dalren and 197 executed a contract to build the facility at different premises known as “Dodge Street”. Dalren subsequently completed the project and provided 197 with 13 invoices for payment. A dispute arose between the parties about two of these invoices. The details of this dispute are not relevant to this appeal. The question before the application judge was which statutory regime governed the dispute: the former Construction Lien Act (the “Former Act”), or that act as amended in 2017, the Construction Act (the “Amended Act”). Dalren took the position that the Amended Act applies. 197 took the position that the Former Act applies.

Under the Amended Act, the prompt payment provisions in ss. 6.4(1) and 26(1) would entitle Dalren to immediate payment of the disputed invoices, notwithstanding the ongoing dispute. Conversely, under the Former Act, 197 could lawfully withhold payment of the disputed invoices until the dispute was resolved. Interpreting and applying s. 87.3(1)(b), the application judge concluded that the Former Act applied to the dispute. The application judge found that Dalren’s initial proposal in 2017 was part of the “procurement process” for the project that was eventually executed in 2020. Thus, the procurement process for the project was commenced by 197 before July 2018, meeting the criteria of s. 87.3(1)(b). The application judge found it irrelevant that Dalren’s initial proposal envisioned the facility would be built on a property different from where it was eventually built. Accordingly, the application judge concluded that 197 did not have to pay the outstanding invoices until the dispute was resolved.

Issues:

1. Did the application Judge err in holding the procurement process was commenced “for the improvement”?
2. Did the application Judge err in holding the procurement process was commenced “by the owner of the premises”?

Holding:

Appeal dismissed.

Reasoning:

1. No. The application judge’s conclusion was consistent with the structure and purpose of the transitional provision and the construction lien regime more generally. Dalren provided no authority to support its argument that the address listed on a request for proposals mattered more than the understanding of the parties and the substance of the proposal itself when determining whether the proposal and the contract relate to the same “improvement”. In drafting s. 87.3 of the Amended Act, the legislature chose to anchor an improvement not merely to the contract for that improvement, but to the commencement of the procurement process. The start date of the first procurement process determines the regime governing all contracts related to the improvement.

2. No. Section 87.3(1)(b) specifies that the procurement process must be commenced “by the owner of the premises”. The improvement at hand was the manufacturing facility constructed under the 2020 contract. The premises of that improvement is Dodge Street. It was not disputed that Thompson Street is not the “premises”, because nothing was constructed there. Thus, in this case, “the owner of the premises” in s. 87.3(1)(b) meant “the owner of Dodge Street”. 197 purchased Dodge Street in 2021. Courts will look to the substance, not the form, of the arrangements between the parties to determine whether someone is an “owner”. A construction lien does not arise until materials or services are supplied to the improvement. Taking a functional approach, courts have held that the relevant time for determining whether a person is an “owner” is the date on which the lien claimant supplied materials or services to an improvement: RSG Mechanical Inc. v. 1398796 Ontario Inc., 2015 ONSC 2070. Here, 197 had an ownership interest in the Dodge Street premises at the time when a lien could arise, i.e. at the outset of construction. This satisfied the application judge that 197 was an owner of the premises within s. 87.3(1)(b).

The parties began relations under the Former Act. Their negotiations were defined by the Former Act. 197 acquired an interest in the property before construction had commenced and thus before a lien could arise. Accordingly, the law in effect at the commencement of the procurement process ought to be respected for the lifespan of the procurement process and the execution of the improvement. The application judge’s approach furthered the purpose of the transitional provision in ensuring consistency.

SHORT CIVIL DECISIONS

Smith v. Oliphant, 2026 ONCA 488

[Roberts, Coroza and Pomerance JJ.A.]

Counsel:

D.L.S. in person

M. Koyama, for the responding parties M.O. and L.H.

D. Van Vroenhoven, for the responding parties Unifund Assurance Company and Johnson Inc.

Keywords: Civil Procedure, Appeals, Perfection, Extension of Time, Costs, Panel Review, Courts of Justice Act, R.S.O. 1990, c. C.43, section 7(5), Weidenfeld v. Weidenfeld, 2022 ONCA 860

Victor v. Cox, 2026 ONCA 504

[Roberts, Thorburn and Coroza JJ.A.]

Counsel:

M. Jaeger, for the respondent/moving party, D.V.

T. Corsianos, for the appellants/responding parties, T.C. and J.V

Keywords: Substitute Decisions, Guardianships, Property, Personal Care, Civil Procedure, Orders, Enforcement, Contempt, Appeals, Jurisdiction, Final or Interlocutory

Mexico v. Burr, 2026 ONCA 506

[Roberts, Thorburn and Sossin JJ.A.]

Counsel:

D. Hohnstein, S. Desjardins and H. Jones, for the appellant

J. Terry, E. Sherkey and N. Williams, for the respondents

No one appearing for the respondent R. T.

Keywords: Contracts, International Arbitration, Civil Procedure, Arbitral Awards, Setting Aside, Standard of Review, Procedural Fairness, North American Free Trade Agreement, Article 1105, Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939

Grozelle (Re), 2026 ONCA 514

[Roberts J.A.]

Counsel:

J. Gibson for the appellants/moving parties

D. Ward and A. Ranjbar for the respondent/responding party

Keywords: Bankruptcy and Insolvency, Costs

Chijindu v. Public Guardian and Trustee, 2026 ONCA 513

[Roberts, Coroza and Pomerance JJ.A.]

Counsel:

I. C., J. C., and C. C., acting in person

A. Jin and H. Ji, for the respondent

Keywords: Substitute Decisions, Public Guardian and Trustee, Civil Procedure, Jurisdiction