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Contract - Appeals - SOR - Exceptions - Standard Contracts. Grasshopper Solar Corporation v. Palmer
In Grasshopper Solar Corporation v. Palmer (Ont CA, 2023) the Court of Appeal considered a novel commercial tenancy arrangement whereby the respondent tenant rented residential rooftops for the purpose of generating solar energy and feeding it back into the electrical grid for profit.
In this quote the court considered issues of contractual interpretation (here, a lease):[20] The motion judge’s interpretation of the lease is entitled to deference: Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, 135 O.R. (3d) 241, at para. 49, leave to appeal to S.C.C. refused, 37039 (October 19, 2017); and Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50, 52.
[21] The motion judge committed no error in turning first to the written terms of the agreement and applying them to the circumstances of this case: Lloyds Syndicate 1221 (Millennium Syndicate) v. Coventree Inc., 2012 ONCA 341, 291 O.A.C. 178, at para. 16, leave to appeal refused, [2012] S.C.C.A. No. 276. Moreover, while it is true that the lease was offered on a take-it-or-leave-it basis, this neither changes our understanding of the decision below nor rises to the level of an impermissible power imbalance between the parties.
[22] Accordingly, this argument cannot prevail. . J.P. Thomson Architects Ltd. v. Greater Essex County District School Board
In J.P. Thomson Architects Ltd. v. Greater Essex County District School Board (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here from "the application judge’s denial of an order appointing an arbitrator pursuant to a dispute resolution clause in its contract with the respondent, Greater Essex County District School Board".
Here the court considers the appellate SOR for standard form contracts, and generally for arbitration issues:[17] The application judge’s interpretation of GC18 is reviewable on a correctness standard. The interpretation of a standard form contract attracts the correctness standard where it has precedential value and there is “no meaningful factual matrix specific to the particular parties to assist the interpretation process”: Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 46; see also Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, 135 O.R. (3d) 241, at paras. 21, 41, leave to appeal refused, [2016] S.C.C.A. No. 249. GC18 was a standard dispute resolution clause in Ontario Association of Architects contracts. There is no factual matrix that would assist in interpreting the parties’ intentions; Thomson was required to accept all contractual terms proposed by the Board, including GC18, when it responded to the Board’s requests for proposal. . Shirodkar v. Coinbase Global, Inc.
In Shirodkar v. Coinbase Global, Inc. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a class action motion order finding that Ireland was the "preferable forum for the adjudication of the appellant’s claims".
Here the court considers the SOR for a standard form ('adhesion') contract:[28] A motion judge’s analysis of jurisdiction simpliciter is a question of mixed fact and law, “reviewable for palpable and overriding error, unless an error in the application of the test can be attributed to an extricable question of law”: Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736, at para. 13, citing Airia Brands Inc. v. Air Canada, 2017 ONCA 792, 417 D.L.R. (4th) 467, at para. 39, leave to appeal refused, [2017] S.C.C.A. No. 476. However, the specific focus of this ground of appeal is the motion judge’s interpretation of a standard form contract. The interpretation of a standard form contract attracts the correctness standard where it has precedential value and there is “no meaningful factual matrix specific to the particular parties to assist the interpretation process”: Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 46.
[29] The Canadian User Agreement is a standard form contract of adhesion; the terms were dictated by Coinbase Canada with no room for negotiation by users. The record does not disclose how many people in Canada have entered into the Agreement with Coinbase Canada, but the respondents’ affiant Mr. Sharma acknowledges that Coinbase has millions of users worldwide. According to a survey by the Ontario Securities Commission attached to an affidavit sworn by a member of the appellant’s legal team, Coinbase transactions account for 42% of crypto transactions by Canadians. Assuming this to be accurate, the interpretation of the Canadian User Agreement could have precedential value. In oral argument, the respondents’ counsel conceded that the review of the Canadian User Agreement could attract a correctness standard, based on the Ledcor factors. . Wiener Städtische Versicherung AG Vienna Insurance Group v. Infrassure Ltd. [standard form, further exception]
In Wiener Städtische Versicherung AG Vienna Insurance Group v. Infrassure Ltd. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a trial addressing "the meaning and effect of a so-called “follow settlements” clause in a contract of reinsurance" in the context of a business interruption claim.
Here the court notes an exception to the (already excepted) correctness SOR for 'standard form' contracts ["where there is no meaningful factual matrix specific to the parties to assist in the interpretation process"]:[44] It is well established that contractual interpretation, which involves questions of mixed fact and law, is ordinarily afforded deference on appellate review. Courts interpret contracts by applying principles of contractual interpretation to the words of the written contract, considered in light of the objective intention of the parties as well as the factual matrix at the time the contract was entered into. Because the trial judge is best placed to make such findings, the predominantly applicable standard of review is palpable and overriding error: Sattva, at para. 50; Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 21; Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, 492 D.L.R. (4th) 389, at paras. 28–29.
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[46] A further exception involves the application of correctness review to standard form contracts, but only where there is no meaningful factual matrix specific to the parties to assist in the interpretation process. Where meaningful evidence of the factual matrix does exist, the Sattva deferential standard of review will apply: Earthco, at para. 29. In this case, there was considerable evidence of the factual matrix within which the retrocession contract was negotiated, which supports application of a deferential standard in reviewing the trial judge’s interpretation of the relevant contractual terms. . Kerk-Courtney v. Security National Insurance Company (TD General Insurance Company)
In Kerk-Courtney v. Security National Insurance Company (TD General Insurance Company) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal by defendant vendors who sought a 'duty to defend' declaration against their insurers.
Here the court sets an SOR of 'correctness' where the appeal issue is of a standard form contract:[28] While the interpretation of a contract generally is a question of mixed fact and law reviewable on a standard of palpable and overriding error, the standard is correctness where, as here, there is a standard form contract, the interpretation of which has precedential value, and there is no meaningful factual matrix specific to the parties to assist the interpretation process: Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 24; MDS Inc. v. Factory Mutual Insurance Company, 2021 ONCA 594, 465 D.L.R. (4th) 294, at paras. 14-17, 21. . EPCOR Electricity Distribution Ontario Inc. v. Municipal Electric Association Reciprocal Insurance Exchange
In EPCOR Electricity Distribution Ontario Inc. v. Municipal Electric Association Reciprocal Insurance Exchange (Ont CA, 2022) the Court of Appeal considered the standard of review (SOR) for a standard form contract:(a) The standard of review
[54] The parties agree that the Policy is a contract of adhesion, and a correctness standard of review applies to its interpretation: Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at paras. 24, 46. The standard form applies to all policy holders, there is no significant factual matrix to assist the interpretation process, and the interpretation will have precedential value.
[55] I agree with the parties’ submission concerning the standard of review. That said, Ledcor makes it clear that “factors such as the purpose of the contract, the nature of the relationship it creates, and the market or industry in which it operates” are appropriate considerations in the interpretation of a standard form contract: Ledcor, at para. 31. These are generally not fact specific and will usually be the same for all parties to the contract. . SIR Corp. v. Aviva Insurance Company of Canada
In SIR Corp. v. Aviva Insurance Company of Canada (Ont CA, 2023) the Court of Appeal considers a business insurance policy that the insured claimed was triggered by provincial EMCPA COVID orders.
In these quotes, the court considers the appellate SOR for contracts - both standard form and customized, here in an insurance policy context:(1) Standard of review
[33] As a general rule, contractual interpretation is a question of mixed fact and law subject to deferential review on appeal: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50-52; Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 24. An exception to that rule has been recognized by the Supreme Court of Canada in Ledcor, at para. 24:[W]here an appeal involves the interpretation of a standard form contract, the interpretation at issue is of precedential value, and there is no meaningful factual matrix that is specific to the parties to assist the interpretation process, this interpretation is better characterized as a question of law subject to correctness review. [34] In this case, that exception does not apply. This is a broker-worded manuscript policy, not a standard form agreement, and there is a meaningful factual matrix specific to the parties.
[35] Accordingly, it is not open for this court to intervene unless the application judge made a palpable and overriding error in her interpretation of the Policy or an extricable error of law, in which case the standard of review is correctness: Sattva, at para. 53; Ledcor, at para. 21. . Ontario Securities Commission v. Bridging Finance Inc.
In Ontario Securities Commission v. Bridging Finance Inc. (Ont CA, 2023) the Court of Appeal considered what I think can be describeb as a securities liquidation. A "privately held investment management firm" was put into receivership pursuant to s.129 of Ontario's Securities Act (OSA) by the Ontario Securities Commission, in addition to related ancillary orders. The case itself was an appeal of an application to declare priority (or rather non-priority: pari passu) of different investors. In the course of the liquidating several investors sought to claim 'Liability for misrepresentation in offering memorandum' [OSA 130.1].
In these quotes the court considers the SOR applicable to contracts of 'adhesion' ('standard-form contracts'):(1) Standard of Review
[8] A central component of the motion judge’s analysis was his consideration of the constating documents to determine which claimants, if any, have a priority. The standard of review of a decision interpreting a contract depends on the nature of the contract. In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, the Supreme Court of Canada held that contractual interpretation is a matter of mixed fact and law because the words of a contract are interpreted in light of its factual matrix.
[9] After Sattva was released, questions arose regarding the precise scope of the ruling. For example, many commercial and consumer contracts are standard form documents presented on a take it or leave it basis. These are not situations where the parties sat across a table and hammered out a bargain. There is no relevant factual matrix for such contracts. There were also concerns regarding the precedential value of appellate decisions interpreting standard form contracts. For example, in MacDonald v. Chicago Title Insurance Co. of Canada, 2015 ONCA 842, 127 O.R. (3d) 663, at para. 40, this court held that it would be unacceptable to have two different interpretations of the same clause in a standard form insurance policy. A correctness standard of review therefore “best ensures that provincial appellate courts are able to fulfill their responsibility of ensuring consistency in the law”: MacDonald, at para. 41.
[10] The Supreme Court clarified the scope of Sattva in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23. At para. 24, Wagner J. (as he then was), writing for the majority, found an exception to the rule in Sattva and outlined three relevant factors to determine the appropriate appellate standard of review of standard form contracts, as follows:I would recognize an exception to this Court’s holding in Sattva that contractual interpretation is a question of mixed fact and law subject to deferential review on appeal. In my view, where an appeal involves the interpretation of a standard form contract, the interpretation at issue is of precedential value, and there is no meaningful factual matrix that is specific to the parties to assist the interpretation process, this interpretation is better characterized as a question of law subject to correctness review. [11] I have no difficulty in concluding that the constating documents are standard form agreements, otherwise known as contracts of adhesion. These were take it or leave it contracts and there is no suggestion that the more than 25,000 Unitholders were able to negotiate their agreements with Bridging: see e.g., Mikelsteins v. Morrison Hershfield Limited, 2019 ONCA 515, at paras. 11-12. There is also no suggestion that there is a relevant factual matrix that informed the motion judge’s contractual analysis.
[12] The remaining Ledcor factor is the issue of precedential value. Counsel for the Receiver submits that the correctness standard of review does not apply because there is no precedential value in this case given that Bridging is in receivership and there will be no future claims against it. I accept this submission and agree that there likely will be no future litigation against Bridging requiring the interpretation of the constating documents. In addition, I also appreciate that the Supreme Court in Ledcor found that the presence of all three factors resulted in the imposition of the correctness standard of review.
[13] The issue that remains open – and which has been raised in this case – is what happens in a situation with a standard form contract executed by tens of thousands of people where there is no relevant factual matrix, but there is little or no chance of future litigation involving the same contract. Usually, standard form contracts automatically have precedential value because there are other potential litigants who executed the same contract. However, the case at bar is a unique situation because Bridging will not be extant in the future and all claims are being resolved in this proceeding. Does the fact that there is no precedential value mean that the motion judge’s analysis must be reviewed on a deferential standard of review? In the circumstances of this case, the answer to that question is no. Given that there are no factual findings and, indeed, scant reference to the facts underlying the creation of the constating documents, there is no basis for this court to defer to the motion judge.
[14] In my view, the absence of one of the Ledcor factors should not automatically lead to the imposition of a deferential standard of review. In the case at bar, the motion judge was engaged in a purely legal analysis about contracts that will potentially impact thousands of people. This court is in as good a position as the motion judge to analyze the constating documents and reach a conclusion as to their legal meaning. There is no reason to take a deferential approach. Therefore, I find that the standard of review of the motion judge’s contractual analysis is correctness.
[15] The other significant issue in the motion judge’s analysis is his interpretation of s. 130.1 of the OSA. The interpretation of a statute on appeal is also reviewed on a standard of correctness: see e.g., Harvey v. Talon International Inc., 2017 ONCA 267, 137 O.R. (3d) 184, at para. 32; Oakville (Town) v. Clublink Corporation ULC, 2019 ONCA 826, 148 O.R. (3d) 513, at para. 35. . Kestenberg Siegal Lipkus LLP v. Royal & Sun Alliance Insurance Company of Canada
In Kestenberg Siegal Lipkus LLP v. Royal & Sun Alliance Insurance Company of Canada (Ont CA, 2024) the Ontario Court of Appeal considered the SOR for a 'standard form' contract appeal:[19] The parties agree that the standard of review on these issues is correctness. The interpretation of the Second Excess Policy is reviewed on a correctness standard because it is a standard form insurance policy: Ledcor Construction Ltd. v. Northbridge, 2016 SCC 37, [2016] 2 S.C.R. 23, at paras. 24 and 34-39. The question of whether the application judge erred with respect to the legal principles applicable to the availability of relief from forfeiture[2] is reviewable on a correctness standard because it is a question of law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. . Jakab v. Clean Harbors Canada, Inc.
In Jakab v. Clean Harbors Canada, Inc. (Ont CA, 2023) the Court of Appeal considered whether a contract was customized or standard (adhesion), here for the purpose of determining which SOR applied:B. The standard of Review
[8] The appellants argue that the contract is a standard form contract of adhesion, attracting correctness review under the authority of Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23. In support of their position, they rely on evidence that the contract is a pre‑printed contract that was simply presented to the appellants for execution, and that Clean Harbors’ Vice-President of National Logistics testified that the terms of the contract were not negotiable.
[9] Conversely, Clean Harbors submits that a deferential standard of appellate review applies since this contract was prepared for the specific situation of owner/operator truck drivers contracted by Clean Harbors in Canada and is not the kind of “highly specialised” industry wide standard form contract having the precedential value envisaged in Ledcor. Clean Harbors also relies on testimony provided by its Vice President of Risk Management in which he expressed disagreement with the suggestion that the contract was non-negotiable. Finally, Clean Harbors argues that even if the contract was a contract of adhesion, the company has approximately 20 owner/operator truck drivers it contracts with in Canada, not enough to give the interpretation of the contract the meaningful precedential value that can attract correctness review.
[10] The question of whether standard form contracts of adhesion used exclusively within a single organization have a sufficient precedential value to attract correctness review has yet to be settled. In Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, 449 D.L.R. (4th) 583, Kasirer J., for the Court, questioned whether correctness review would apply to a standard form employment contract used with a “limited number of executives” but found it was unnecessary on the facts before him to resolve the issue. This court has yet to grapple with this question directly. In my view, it is unnecessary to attempt to do so in this case. Even applying the more demanding correctness standard of review, I would uphold the trial judge’s interpretation of the contract. . 908593 Ontario Limited v. Atradius [SOR exception for standard form contract issues]
In 908593 Ontario Limited v. Atradius (Ont CA, 2023) the Court of Appeal considered the standard of review distinction between custom and standard form contracts:[6] The appellant submits that the Policy is a standard form contract and thus the standard of review is correctness, in accordance with the principles set out in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 4. We do not agree that the standard of review of correctness is applicable in this case. There is simply no evidence that the Policy is a standard form contract as that term is used in Ledcor: see e.g., at paras. 25, 28. Absent such evidence, the motion judge’s interpretation of the Policy involves issues of mixed fact and law subject to deferential review on appeal: Ledcor, at para. 24; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 50. As a result, the palpable and overriding error standard of review applies: Ledcor, at para. 21; Hemlow Estate v. Co-operators General Insurance Company, 2021 ONCA 908, 160 O.R. (3d) 467, at paras. 13-14, leave to appeal to S.C.C. refused, [2022] S.C.C.A. No. 51. The appellant has failed to demonstrate that the motion judge made a palpable and overriding error in interpreting the Policy. . 402 Mulock Investments Inc. v. Wheelhouse Coatings Inc. [SOR exception for standard form contracts]
In 402 Mulock Investments Inc. v. Wheelhouse Coatings Inc. (Ont CA, 2022) the Court of Appeal considered the general standard of review for contractual interpretation:[29] Contractual interpretation involves issues of mixed fact and law and is subject to appellate deference, unless there is an extricable question of law: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 52-53. The exception is standard form contracts, which is not relevant here: Corner Brook (City) v. Bailey, 2021 SCC 29, 460 D.L.R. (4th) 169, at para. 44. . H. R. Doornekamp Construction Ltd. v. Canada (Attorney General) (Department of Public Works and Government Services) [SOR exception for standard form issues]
In H. R. Doornekamp Construction Ltd. v. Canada (Attorney General) (Department of Public Works and Government Services) (Div Ct, 2022) the Divisional Court considered the general appellate standard of review for contract issues, with a variation when correctness is required for standard form contracts:Standard of Review
[75] In Sattva the Supreme Court of Canada determined that as a general rule interpretation of contracts raises issues of mixed fact and law and is, accordingly, to be given deference. In Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co.[97]an exception is proposed where the appeal involves the interpretation of a standard form contract:I would recognize an exception to this Court’s holding in Sattva that contractual interpretation is a question of mixed fact and law subject to deferential review on appeal. In my view, where an appeal involves the interpretation of a standard form contract, the interpretation at issue is of precedential value, and there is no meaningful factual matrix that is specific to the parties to assist the interpretation process, this interpretation is better characterized as a question of law subject to correctness review.[98] . 2651171 Ontario Inc. v. Brey [SOR exception for standard form issues]
In 2651171 Ontario Inc. v. Brey (Ont CA, 2022) the Court of Appeal considered the appellate standard of review for standard form contracts:[13] It is common ground that the standard of review of the motion judge’s interpretation of the parties’ standard form agreement is correctness: Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 24.
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