Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of September 22, 2025.
In McKee v. Shahid, a mother sued the psychiatrists who had treated her son for mental illness. After being discharged from hospital, the son killed his father. His mother sued the doctors for a failure to warn her and her husband about their son's threats and predisposition to harm them. The claim was struck at the pleadings stage as disclosing no reasonable cause of action. The Court allowed the plaintiff's appeal, holding that while the proposed duty of care owed by the psychiatrists was novel and not an established category of tort claim, the question of whether such a duty exists through the application of the Anns/Cooper test should not be decided on a motion to strike but required a full evidentiary record. The Court found it was not plain and obvious that the claim was doomed to fail, and accordingly, it should be allowed to proceed to trial.
In Carcillo v. Ontario Major Junior Hockey League, an appeal from the refusal to certify a proposed class action for negligence against Canadian major junior hockey leagues was dismissed. The Court found that the action was of such an unprecedented scale and complexity that it would be unmanageable and could well collapse under its own weight. While the certification judge erred in finding that the claim disclosed no reasonable cause of action in some respects, that did not save the class proceeding, as the appeal was dismissed on the preferable procedure aspect of the certification test.
In Taylor v. Zents, the Court dismissed the defendant's appeal from a judge-alone verdict awarding the plaintiffs over $1 million for a concussion and brain injury suffered in an MVA case. The award was granted by the trial judge after discharging the jury as a result of a breach by defence counsel of the rule in Browne v. Dunn. The apparently intentional violation of the rule led to a "Perry Mason" moment in the presence of the jury to the detriment of the plaintiff that could only be cured by a discharge of the jury. The Court also confirmed that a treating doctor is not precluded from also being qualified as a r. 53 trial expert.
Ontario Securities Commission v. Cacoeli Asset Management Inc. involved the OSC appointing a receiver over Cacoeli Asset Management due to concerns about the diversion of investor funds between projects, which the company admitted but claimed was permitted. The Court of Appeal upheld the application judge's decision appointing the receiver and dismissed the appeal. The appropriate evidentiary standard for appointing a receiver under s. 129 of the Securities Act is a "serious concern" of possible breaches, which was the standard applied by the application judge, rather than the strong prima facie case standard argued by Cacoeli.
In dismissing the insured's appeal in Traders General Insurance Company v Rumball, the Court confirmed the test an individual injured in a car accident must meet in order to receive income replacement benefits from their insurer beyond 104 weeks, and that the onus to establish such entitlement lies with the insured.
In Iliuta v. Li, the Court dismissed an appeal in a fact-specific family law case.
Finally, in a short decision in Stile Carpentry Ltd. V. 2004424 Ontario Inc. that was too short to summarize, the Court refused to allow a closely held corporation to be represented by a non-lawyer (who was the father of corporation's sole director). The Court confirmed that such relief is only to be granted in exceptional circumstances and should not be normalized. Furthering access to justice is not the only factor to be considered. The integrity of the administration of justice is also a critical factor. The Court commented that the operation of the legal system is premised on the participation of a well-trained and regulated body of professionals. In considering a motion for a non-lawyer to represent a corporation, the court must consider not only whether the individual is capable of comprehending the issues and setting out the position of the corporation, but also whether they are able to advocate in a manner that meets the professional ethical standard expected of lawyers. In this case, the proposed non-lawyer representative had a history of making submissions to the court that contained fabricated legal citations. They referenced non-existent cases and miscited genuine cases for propositions that those cases did not address. They provided notional hyperlinks to authorities that linked to wholly irrelevant documents. They referenced provisions of statutes that did not exist. They quoted text from case law and statutes that were completely fabricated. For these reasons, the motion to have the corporation represented by the non-lawyer on the appeal was dismissed. The corporation was given 30 days to retain a lawyer to argue its motion for an extension of time to perfect its appeal. If it does not do so, the appeal will be dismissed.
Wishing everyone an enjoyable weekend.
Table of Contents
Civil Decisions
McKee v. Shahid, 2025 ONCA 666
Keywords: Torts, Negligence, MedMal, Duty of Care, Reasonable Foreseeability, Anns/Cooper Test, Duty to Warn, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Mental Health Act, R.S.O 1990, c. M.7, s.15, Family Law Act, R.S.O. 1990, c. F.3, Rules of Civil Procedure, r. 21.01(1)(b), 25.11, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, Ahmed v. Stefaniu (2006), 275 D.L.R. (4th) 101 (Ont. C.A.), Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, Paxton v. Ramji, 2008 ONCA 697, Wawrzyniak v. Livingstone, 2019 ONSC 4900, Childs v. Desormeaux, 2006 SCC 18, Smith v. Jones, [1999] 1 S.C.R. 455, McCreight v. Canada (Attorney General), 2013 ONCA 483, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Catalyst Capital Group Inc. v. Veritas Investment Research Corp., 2017 ONCA 85, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Nelson (City) v. Marchi, 2021 SCC 4, Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, Spillane (Litigation Guardian of) v. Wasserman (1998), 41 C.C.L.T. (2d) 292 (Ont. C.A.), Healey v. Lakeridge Health Corp. (2006), 38 C.P.C. (6th) 145 (Ont. S.C.), Wenden v. Trikha (1991), 8 C.C.L.T. (2d) 138 (Alta. Q.B.), Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. Sup. Ct. 1976), Volk v. DeMeerler, 386 P.3d 254 (Wash. Sup. Ct. 2016), Jablonski by Pahls v. U.S., 712 F.2d 391 (9th Cir. 1983), Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5, 132, Cooper v. Hobart, 2001 SCC 79, Rausch v. Pickering (City), 2013 ONCA 740, Heaslip Estate v. Ontario, 2009 ONCA 594, Holland v. Saskatchewan, 2008 SCC 42
Carcillo v. Ontario Major Junior Hockey League, 2025 ONCA 652
Keywords: Sports Law, Hockey, Torts, Systemic Negligence, Abuse, Civil Procedure, Class Proceedings, Certification, No Reasonable Cause of Action, Common Issues, Preferable Procedure,, Litigation Plan, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5, Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15, s. 26, AIC Limited v. Fischer, 2013 SCC 69, Rumley v. British Columbia, 2001 SCC 69, Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401 (C.A.), Cavanaugh v. Grenville Christian College, 2014 ONSC 290 (Div. Ct.), Carcillo v. Canadian Hockey League, 2023 ONSC 886, Carcillo v. Canadian Hockey League, 2023 ONSC 5798, Bowman v. Ontario, 2022 ONCA 477, Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501, 728654 Ontario Inc. v. Ontario (2005), 202 O.A.C. 4 (C.A.), Pioneer Corp. v. Godfrey, 2019 SCC 42, Organization of Veterans of the Polish Second Corps v. Army, Navy & Air Force Veterans in Canada (1978), 20 O.R. (2d) 321 (C.A.), Astgen v. Smith, [1970] 1 O.R. 129 (C.A.), Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165, Maple Leaf Foods Inc. v. Schneider Corp. (1998), 42 O.R. (3d) 177 (C.A.), London Association for Protection of Trade v. Greenlands, Limited, [1916] 2 A.C. 15 (H.L.), Toews v. Isaac, [1929] 2 D.L.R. 719 (Man. C.A.), Body v. Murdoch, [1954] O.W.N. 658 (H.C.), G.S. v. Canada (Attorney General), 2001 SKQB 427, Barrett v. Harris (1921), 51 O.L.R. 484 (S.C.), Brown v. Lewis (1896), 12 T.L.R. 455, Orchard v. Tunney, [1957] S.C.R. 436, Lysko v. Braley (2006), 79 O.R. (3d) 721 (C.A.), Kinver v. The Phoenix Lodge, I.O.O.F. (1885), 7 O.R. 377 (C.A.), The Hibernian Dance Club v. Murray, [1997] P.I.Q.R. P46 (C.A.), 1196303 Ontario Inc. v. Glen Grove Suites Inc., 2015 ONCA 580, Trident Holdings Ltd. v. Danand Investments Ltd. (1988), 64 O.R. (2d) 65 (C.A.), Fulawka v. Bank of Nova Scotia, 2012 ONCA 443, Canada v. Greenwood, 2021 FCA 186, Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, Black v. Owen, 2017 ONCA 397, Sriskandarajah v. United States of America, 2012 SCC 70, Pearson v. Inco Ltd. (2006), 78 O.R. (3d) 641 (C.A.), Housen v. Nikolaisen, 2002 SCC 33, Dennis v. Ontario Lottery and Gaming Corporation, 2013 ONCA 501, Waldman v. Thomson Reuters Corporation, 2012 ONSC 1138, Robinson v. Rochester Financial Ltd., 2010 ONSC 463, Amyotrophic Lateral Sclerosis Society of Essex v. Windsor (City), 2015 ONCA 572, Caputo v. Imperial Tobacco Ltd. (2004), 236 D.L.R. (4th) 348 (Ont. S.C.), Canada v. John Doe, 2016 FCA 191, Sharp v. Royal Mutual Funds Inc., 2021 BCCA 307, Soldier v. Canada (Attorney General), 2009 MBCA 12, Canada (Attorney General) v. Fontaine, 2017 SCC 47, Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48, McCracken v. Canadian National Railway Company, 2012 ONCA 445, Bellaire v. Independent Order of Foresters (2004), 5 C.P.C. (6th) 68 (Ont. S.C.), Price v. Smith & Wesson Corporation, 2025 ONCA 452, Davis v. Amazon Canada Fulfillment Services, ULC, 2025 ONCA 421, Baxter v. Canada, 2005 CanLII...
