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By Julius Melnitzer | February 4, 2026
Here is part two of my annual list of the top 10 business decisions in Canada for the year just ended. This two-part series began with the cases ranked sixth through tenth. Part two herein covers the top five cases, in ascending order.
5. Heritage Property Corporation v. Triovest Inc., 2025 ABCA 64
The duty of honest performance is now well enshrined in Canadian law, but there are a few important loose ends that require clarification — most importantly, the duty’s temporal limits.
Ocean Pacific Hotels Ltd. v. Lee, 2025 BCCA 57, ranked below as No. 4, deals with the duty before the contract exists. Heritage examines the duty post-termination.
“In Heritage, the court ruled that performance of the agreement puts an end to the duty unless the agreement has provisions that survive termination,” said Brandon Kain, a Toronto-based partner in McCarthy Tétrault LLP’s litigation group. “One example is the duty of confidentiality that may carry on after an M&A transaction closes.”
Heritage’s significance is heightened by the growing ubiquity of honest performance issues.
“The duty of good faith is increasingly a feature of commercial litigation,” Kain said.
4. Ocean Pacific Hotels Ltd. v. Lee, 2025 BCCA 57
As mentioned above with respect to case No. 5, Heritage, Ocean Pacific deals with the duty of honest performance in pre-contractual negotiations.
In Ocean Pacific, the plaintiffs alleged that the defendant misled them about health benefits while the parties were negotiating employment agreements. The Court of Appeal dismissed the portion of their claims related to honest performance, finding that there was a “developing consensus” to the effect that the duty did not apply during negotiations, partly because of the potential overlap with the torts of fraudulent and negligent misrepresentation.
Kain said the “toughest cases” are the ones where parties disagree on whether an agreement has been reached.
“But in those cases, the law provides remedies like rectification and unconscionability, so it’s not necessary to have the duty of honest performance there.”
Still, Kain cautioned that Ocean Pacific should be applied carefully.
“This was a case of straight-up negotiations, and did not involve a preliminary or earlier contract, such as negotiations for renewal of an existing lease. The analysis is different in those circumstances.”
And like Heritage, Ocean Pacific’s significance is heightened by the increasing prevalence of good faith issues in litigation.
3. Insurance Corporation of British Columbia v. Ari, 2025 BCCA 131
In this class action, the British Columbia Court of Appeal found the Insurance Corporation of British Columbia liable for a statutory tort under the Privacy Act involving a former employee’s fraudulent use of customer data.
In dealing with aggregate damages, the court held that awards beyond nominal damages were available for this breach, without proof of consequential harm. The court, noting the seriousness of the breach, upheld a $15,000 award for each class member, but acknowledged that it was “likely toward the upper end of the appropriate range for damages.”
Notwithstanding the caution, the decision and the award stand out.
“In my view, this is the high-water mark for privacy class action damages in Canada,” said Connor Bildfell, a partner in McCarthy Tétrault’s litigation and dispute resolution group in Vancouver. “The consensus previously was that damage awards were low for things like data breaches, but this case blows that thinking out of the water because $15,000 per class member without proof of harm was unthinkable until its release.”
Still, Bildfell believes Ari is an “outlier.”
“This was an egregious case where a company employee deliberately stole information and sent it to criminals who committed criminal acts, including arson and shootings, against people. In that sense, the decision is still a high-water mark, a cap for extreme cases.”
According to Bildfell, the award could also increase damages in less extreme instances.
“But, to the contrary, judges in less extreme cases could use the decision as a point of distinction and go to the other end of the scale to examine precedential awards in non-extreme circumstances. It remains to be seen.”
2. Lundin Mining Corporation v. Markowich, 2025 SCC 39
Ironically, this Supreme Court of Canada decision ranks so high because of the uncertainty it creates.
“In offering a broad view of what a ‘material change’ was in securities law, the SCC took an investor-friendly approach that tells companies, ‘If you’re in doubt whether something was a material change, disclose,’” said Luis Sarabia, a litigation and arbitration partner in Davies Ward Phillips & Vineberg LLP’s Toronto office, who represented the intervener Mining Association of Canada.
According to Sarabia, the key takeaways from the case are:
- Determining what is a material change requires a two-step analysis: whether there has been a change in a company’s business, operations or capital, and; whether the change is material in the sense that it could reasonably have a significant effect on the price of a company’s securities;
- A “change” is a broad construct not limited to developments that are important or substantial, or to whether the issuer has changed direction in respect of its operations. “A change is a change, broadly construed,” Sarabia said;
- A material change is an internal change: external developments don’t count, unless they result in a “change” that is “material”;
- A material change usually requires more than mere negotiations or internal deliberations; and
- The rules are the same at the leave stage of litigation.
The fallout for issuers is significant.
“The decision has everyone looking over their shoulder because the events in Lundin were ordinary events that didn’t affect the way the company went about its business,” said Andrew McCoomb, co-chair of Norton Rose Fulbright Canada LLP’s Toronto litigation department. “And it’s a decision that the insurance world is watching closely because it could affect the risk allocation for and cost of insuring secondary market securities claims.”
1. Opsis Airport Services Inc. v. Quebec (Attorney General), 2025 SCC 17
This case makes the top spot primarily because it aligns with the political, social and economic imperatives of the day.
Opsis confirms — some might say revives — the doctrine of interjurisdictional immunity, which prevents the federal or provincial governments from applying their laws in a way that impairs the core of exclusive powers granted constitutionally to the other level of government.
“Not only is it an incredibly important case for federally regulated industries, like airlines, railroads and telecoms, but I wouldn’t overlook the fact that it empowers the interprovincial nation-building projects on which the feds have put a premium,” said Jeremy Opolsky, a litigation partner in Torys LLP’s Toronto office.
Indeed, said Jean-Simon Schoenholz, a litigation partner in Norton Rose’s Ottawa office, the business community should resoundingly welcome the decision.
“In the context of a political imperative to build faster, remove interprovincial trade barriers and slash regulatory red tape, Opsis provides some hope for and a potential path forward for reducing regulatory duplication and creep.”
From a legally substantive perspective, Opolsky cites the following takeaways:
- Interjurisdictional immunity continues to be a key constitutional principle;
- Precedent is “not determinative,” so that the doctrine can apply to new areas of exclusive jurisdiction;
- Interjurisdictional immunity may be considered before paramountcy; and
- Potential legislative impacts that may not have materialized may be considered.
This is the second in a two-part series.
Julius Melnitzer is a Toronto-based freelance legal affairs journalist and communications and media consultant to the legal profession. He can be reached by email directly at julius@legalwriter.net or at his website, www.legalwriter.net.