Court of Appeal Overturns Judge Who Dismissed a Case Nobody Asked to Dismiss

McDonald v. Robb, 2025 ONCA 71 (Court of Appeal for Ontario)

A Property Claim Dismissed Without Anyone Asking

Grace McDonald had a claim for adverse possession over lakefront property. The case was moving through the courts with various motions from both sides. A scheduling order was made in November 2023 setting filing deadlines. On January 19, 2024, the parties appeared before the motion judge. The respondent was requesting a timetable for the outstanding matters and potentially a case management judge. Grace was asking for an adjournment. Nobody was asking the judge to dismiss the action.

But that is exactly what the judge did. Without any party requesting it, and without giving any indication during the hearing that he was considering it, the motion judge dismissed Grace's entire action. The decision came as a complete surprise.

Ken Wise Takes the Case to Ontario's Highest Court

Ken Wise appealed directly to the Court of Appeal for Ontario. His argument was rooted in a fundamental principle: a judge cannot dismiss an action that no one has asked to be dismissed, without giving the parties an opportunity to be heard on that question. The confirmation of motion forms and the transcript of the proceedings both confirmed that no party had requested dismissal, and the judge had given no warning.

The Court of Appeal Agrees Unanimously

A panel of three justices of the Court of Appeal — including the Associate Chief Justice of Ontario — heard the appeal and released their decision the same day. The court allowed the appeal, set aside the dismissal, and sent the matter back to the Superior Court. Grace's claim was restored.

Why This Case Matters

If your case has been unexpectedly dismissed, or if a court has made an order that nobody asked for, you may have strong grounds for appeal. Procedural fairness requires that parties be given a meaningful opportunity to be heard before decisions are made that affect their rights. This case is a reminder that even judges can overstep, and the appeal courts are there to correct it.

If you need to appeal a court decision in Ontario, contact Ken Wise & Associates.

Phone: (416) 924-6231

Email: ken@kenwiseandassociates.ca