Executive Summary: Key Legal and Evidentiary Issues

• Admissibility of an affidavit filed on a motion for leave to appeal, and whether it properly assists the Court of Appeal in assessing “public importance” issues.
• Boundary between factual affidavit evidence and improper opinion, argument, and anecdotal assertions offered to attack the underlying Divisional Court decision.
• Use of post-judgment conduct (alleged insurer practices in other files) and whether such disputed facts are relevant to the leave analysis or are collateral and inflammatory.
• Requirement that any evidence of broader systemic impact be supported by objective, statistical, or otherwise verifiable material rather than a single business owner’s observations.
• Scope of a chambers judge’s authority to strike affidavit material in the leave-to-appeal process while preserving the panel’s role in deciding whether to admit evidence.
• Appropriate remedy when only some paragraphs are unobjectionable but the affidavit, read as a whole, is driven by advocacy and conclusions on public importance, leading to striking the affidavit in its entirety and revising the factum.

Facts of the case
Formula First Collision is an independent autobody repair shop in Ontario. Vehicle owners whose cars required repairs either drove or had their vehicles towed to Formula First, acting on their own initiative and direction. At Formula First’s request, each vehicle owner signed a document titled “Assignment”. This document purported to assign to Formula First “any and all rights of action for damages” relating to repair and related costs arising out of that owner’s contract of automobile insurance with Aviva Canada. In practice, Formula First would prepare its own repair estimate for each damaged vehicle. Aviva, as the insurer, also prepared its own repair estimate, which set out the work Aviva considered necessary and the amount it was willing to pay for that work. Formula First then completed the repairs. In five of the files, the final invoices exceeded the amounts Aviva was prepared to pay under its estimates, leaving balances outstanding on each invoice. Formula First commenced a Small Claims Court action to recover the total of those unpaid balances from Aviva, relying on the assignments from the insured owners as the basis for its right to sue.

Procedural history
The Small Claims Court dismissed Formula First’s claim in its entirety, rejecting its attempt to recover the alleged shortfall from Aviva. Formula First appealed to the Divisional Court. A single judge of that court, Hebner J., dismissed the appeal, thereby affirming the Small Claims Court’s decision against Formula First. Still dissatisfied, Formula First sought to take a further appeal to the Court of Appeal for Ontario. Because this would be a second-level appeal from a Small Claims matter, Formula First required leave to appeal; it could not proceed as of right. Motions for leave to appeal to the Court of Appeal are determined in writing by a panel, which applies the criteria in Sault Dock Co. v. Sault Ste. Marie (City). A second appeal is described as “exceptional”, and leave is granted only where special circumstances raise issues of public importance that go beyond the interests of the immediate parties. In support of its motion for leave, Formula First filed and relied on an affidavit sworn November 27, 2025 by its owner, Frank Gobatto. Aviva responded by bringing a separate motion before a single judge of the Court of Appeal (Coroza J.A. as motion judge) to strike that affidavit, and, in the alternative, to strike specified parts of it and obtain leave to cross-examine Mr. Gobatto.

The role and content of the Gobatto affidavit
Formula First’s central theory on the leave motion was that the Divisional Court’s decision had systemic consequences for the auto repair market and for insured motorists across Ontario. It argued that the Gobatto affidavit was “central” to showing that broader public importance, including alleged impacts on all policyholders and on the integrity of the Financial Services Regulatory Authority of Ontario (FSRA) consumer protection and regulatory framework. In particular, the affidavit asserted that the Divisional Court’s interpretation effectively requires that an insurer prepare a repair estimate that repair shops must “take or leave”, elevating the insurer’s decision over that of independent repairers. It further claimed that insureds who insist on repairs beyond the insurer’s preferred estimate must pay any extra amount out-of-pocket, which, in Mr. Gobatto’s view, would motivate customers to choose insurer-preferred shops over independent ones and ultimately “decimate” independent autobody shops in Ontario. The affidavit also described Aviva’s alleged conduct in eight separate matters following the Divisional Court decision, put forward as examples of how the decision was influencing Aviva’s dealings with repair shops and insureds. These anecdotes were used to support the claim that the decision had wide-ranging negative effects on safety, competition and regulatory integrity.

Policy and legal issues surrounding public importance and evidence
There is no detailed discussion in this motion decision of specific insurance policy clauses or wording in the underlying automobile policies; the focus is procedural and evidentiary rather than on the substantive policy language. The “policy” discussion is therefore more about legal policy and appellate criteria than about contractual policy terms. The case engages the established leave-to-appeal test from Sault Dock, under which the Court of Appeal guards its docket closely and grants a second appeal only when special circumstances show issues of general public or jurisprudential importance. In that context, the court revisits the principles from Optiva Inc. v. Tbaytel and Canada Mortgage and Housing Corp. v. Iness about what kind of affidavit evidence can properly be filed on a leave motion. Those authorities make clear that it is for the leave panel—not a witness—to determine whether an appeal raises issues of public importance. Affidavits cannot be deployed to “buttress an attack” on the decision under appeal by packaging advocacy or legal conclusions as expert or lay opinion. An affidavit may sometimes assist if it supplies objective, factual context not apparent from the record—such as demonstrating that a decision creates an unworkable precedent in practice or has concrete operational impacts that matter beyond the parties. However, in general, whether an issue is of public importance is a legal evaluation for the court, and opinion evidence on that point is rarely helpful.

Court’s analysis of the affidavit as evidence
Justice Coroza accepted that the broader impact of a decision on non-parties and the public can, in principle, be relevant to public importance. But he emphasized that relevance alone is not enough: any affidavit used to demonstrate such impact must confine itself to proper factual information that can truly assist the panel. On review of the Gobatto affidavit, the court held that it strayed far beyond that permissible role. The affidavit was “replete with argument and opinion”, consisting largely of a business owner’s anecdotal observations and predictions about the future of the independent repair industry and the safety of vehicles on Ontario roads. If Formula First wished to rely on systemic impact, the court noted, it should have presented objective, statistical or otherwise verifiable evidence (assuming it existed), rather than a single participant’s impressions. The paragraphs describing alleged Aviva conduct in eight other matters were also problematic: Aviva disputed those allegations, and in any event they did not help the panel evaluate the alleged province-wide implications of the Divisional Court decision. The judge identified only a small cluster of paragraphs—those providing basic, objectively verifiable context—as non-objectionable. However, he concluded that these few neutral paragraphs were merely a prelude to the affidavit’s ultimate, argumentative conclusion that the Divisional Court’s interpretation affects millions of insured Ontarians, market competition, vehicle safety, and the FSRA consumer protection framework, and that these are “matters of clear and substantial public importance”. In substance, the affidavit purported to tell the Court that leave should be granted, which is a question reserved to the panel. Because the affidavit as a whole was structured around advocacy and opinion on public importance, leaving only a few context paragraphs in place would not meaningfully assist the leave panel. The appropriate remedy, in the court’s view, was to strike the affidavit in its entirety.

Outcome and implications
Justice Coroza granted Aviva’s motion and ordered that the Gobatto affidavit be struck in full. As a consequence, it was unnecessary to decide Aviva’s alternative request to cross-examine Mr. Gobatto on any remaining portions. The court directed Formula First to file a fresh or amended factum on its motion for leave to appeal, purged of any references to the struck affidavit. Formula First was given 30 days from the release of the decision to re-file its factum, Aviva was given 25 days from service of that factum to file responding materials, and any reply factum from Formula First was to be filed within 10 days after Aviva’s response. On costs, the court held that Aviva, as the successful moving party, was entitled to its costs of the motion in the agreed amount of $2,400. This means that, in this Court of Appeal decision, Aviva prevailed procedurally: it succeeded in excluding Formula First’s supporting affidavit from the leave record and obtained a modest cost award of $2,400 in its favour, with no separate award of damages being made or quantified in this ruling beyond that agreed costs figure.