Alan H. Mark

This appeal concerned a constitutional challenge by National Steel Car Limited to the costs of Ontario's Feed-in-Tariff (FIT) Program, arguing they constituted an unconstitutional tax disguised as a regulatory charge, primarily intended for economic stimulus.

The appellant contended that the program's true purpose was not related to electricity regulation.

The Court of Appeal upheld the application judge's decision, dismissing the appeal.

The court found that the FIT Program's primary purpose was regulatory, aimed at increasing renewable energy generation, improving air quality, planning for future supply needs, and encouraging Indigenous and community participation, with economic stimulus being an incidental, not dominant, characteristic.

The court also affirmed the sufficiency of the application judge's reasons and his assessment of expert witness bias.

The defendants, The Dominion of Canada General Insurance Company and The Travelers Companies Inc., brought a motion to strike out portions of the plaintiff Municipal Electric Association Reciprocal Insurance Exchange's statement of claim.

The challenged claims included inducing breach of contract, breach of fiduciary duty, knowing assistance of breach of fiduciary duty, and civil conspiracy.

The court dismissed the motion, finding that the plaintiff had adequately pleaded material facts for each cause of action, meeting the stringent test for a Rule 21.01(1)(b) motion, which requires establishing that the claim has no reasonable prospect of success.

The plaintiffs sought to enforce an "Outline of Terms of Settlement" reached during mediation, arguing it constituted a binding agreement.

The defendants contended that the Outline was not intended to be enforceable and lacked essential terms.

The court found that the Outline did not objectively reflect a mutual intention to create a binding agreement and that numerous material issues, including debt reallocation, minority shareholder rights, and tax implications of asset transfers, remained unresolved.

The court dismissed the motion, emphasizing that it cannot create a contract for parties where essential terms are missing.

This appeal arose from a personal injury action where the Town of Milton, a defendant, brought a third-party claim against Milton Hydro Distribution Inc. for contribution and indemnity, alleging negligent removal of a street luminaire.

The motion judge granted summary judgment dismissing the third-party claim, finding Milton Hydro owed no duty of care and that the Town of Milton's failure to inspect constituted an intervening act breaking causation.

The Court of Appeal for Ontario allowed the appeal, finding the motion judge erred by conflating duty of care and causation analyses and incorrectly applying the intervening act doctrine.

The court emphasized that the passage of time alone does not negate foreseeability and that multiple parties can be responsible for harm.

The third-party claim was remitted for trial with the main action.

This appeal concerned the interpretation of a comprehensive liability insurance policy regarding coverage for legal costs incurred by an insured (Houghton) in a public judicial inquiry and by the corporate insured (EPCOR) in indemnifying Houghton.

The Court of Appeal affirmed that the insurer (MEARIE) was obligated to cover Houghton's inquiry costs under Coverage G, as the inquiry constituted a "proceeding brought against the Insured... under any statute." However, the court reversed the lower court's finding that EPCOR's costs related to indemnifying Houghton were covered under Coverage E, ruling that EPCOR's liability arose from its corporate bylaw, not a "Wrongful Act" covered by the policy.

The court also upheld the costs award against the insurer due to its vague initial denial of coverage.

National Steel Car Limited challenged Ontario's Feed-In Tariff (FIT) Programs, arguing that the increased electricity costs passed to consumers via the "Global Adjustment" constituted an unlawful, unconstitutional tax.

The applicant contended that the FIT Programs' stated environmental and energy purposes were a "falsehood" and their true aim was economic stimulus, making the levy a "colourable taxation" enacted by regulation rather than statute, violating sections 53 and 54 of the Constitution Act, 1867.

The court dismissed the applications, finding that the FIT Programs were not colourable taxation and served legitimate regulatory purposes related to Ontario's electricity system, including promoting renewable energy and economic development.

The court concluded that the levy was properly characterized as an intra vires regulatory charge.

Electek Power Services Inc. sought full indemnity costs of $616,312.06 for an arbitration hearing and a subsequent court application to set aside an arbitral decision on jurisdiction.

The court had previously granted Electek's application, finding the arbitrators erred in assuming jurisdiction.

Greenfield Energy Centre Limited Partnership proposed a lower partial indemnity award of $145,000.

The court awarded Electek $425,000 in total, comprising $300,000 for the arbitration and $125,000 for the court application, both on a partial indemnity basis, finding no conduct warranting a punitive or full indemnity award.

The defendants in two related actions sought orders to compel the plaintiffs, Andrew Stronach and Selena Stronach, to undergo medical examinations to assess their mental capacities for the purpose of determining if litigation guardians were required.

The court dismissed the motion against Selena Stronach, finding insufficient evidence to rebut the presumption of capacity.

The motion against Andrew Stronach was dismissed without prejudice, as the court found it premature and suggested other discovery avenues should be pursued first.

The court also declined to order production of video recordings of Andrew's examination for discovery.

Following a successful application for insurance indemnity, the applicants sought full indemnity costs of $291,052.22.

The court held that the applicants were entitled to full indemnity costs because the insurer wrongfully denied coverage and provided vague reasons until shortly before the hearing.

However, the court found the requested quantum excessive due to over-lawyering and duplication of previous application records.

Costs were fixed at $140,000 inclusive of HST and disbursements.

Crystallex International Corporation and Tenor Special Situation I, LP sought leave to appeal a motion judge's order that partially dismissed Crystallex's request to seal certain financial information in the Monitor's Thirty-Third Report.

The motion judge had applied the Sierra Club test and found the evidence for sealing speculative.

The Court of Appeal refused leave, finding the proposed appeal was not prima facie meritorious and the case was not of significance to the practice, upholding the motion judge's discretionary order.

Crystallex International Corporation brought a motion for a sealing order to keep confidential certain financial information and strategic details contained in the Monitor's 33rd Report, including cash balance, litigation expenses, sanctions impact, and confidential mediation disputes.

The Ad Hoc Committee of senior noteholders and the Trustee opposed the sealing of financial information, arguing for the importance of disclosure in CCAA proceedings.

The court applied the Sierra Club test, which requires demonstrating a real and substantial risk to an important commercial interest, no reasonable alternative to sealing, and the salutary effects outweighing the deleterious effects on the open-court principle.

The court found Crystallex's evidence, consisting of bald and speculative statements, insufficient to meet this high evidentiary burden, and therefore dismissed the motion for a sealing order.

The appellant, a heavy electricity user, challenged the constitutionality of the Global Adjustment component of Ontario's electricity pricing formula, which funds the Feed-in Tariff (FIT) program.

The appellant argued that the FIT program component was a colourable attempt to disguise a tax as a regulatory charge, designed to provide economic stimulus and subsidies to preferred communities (aboriginal peoples, co-operatives, and municipalities) rather than to regulate electricity generation.

The motion judge struck the applications, finding the Global Adjustment was a valid regulatory charge within a closed system.

The Court of Appeal allowed the appeal, finding the appellant's colourability challenge was sufficiently plausible that the applications should not have been dismissed on a pleadings motion and should proceed to a full hearing on the merits.

The court issued a costs endorsement following successful motions by the Attorney General of Ontario, Her Majesty the Queen in Right of Ontario, and the Independent Electricity System Operator (IESO) to strike two constitutional challenge applications.

The applications, brought by National Steel Car Limited, challenged aspects of Ontario's Global Adjustment electricity regime.

The court awarded partial indemnity costs to the Attorney General and Her Majesty in the amount of $50,000, and to the IESO in the amount of $75,000.

The decision considered the general principles of costs under Rule 57.01, the principle of indemnity, and the reasonable expectations of the parties.

It addressed the applicant's argument of being a public interest litigant and confirmed that a party fully participating in and supporting a successful motion, even without formally bringing it, can be awarded costs, subject to adjustment.

The applicants sought a declaration that the respondent's proposed mandatory conversion of outstanding convertible preferred shares would contravene its Articles of Continuance.

The central issue was the interpretation of the "Liquidity Condition" within the Mandatory Conversion Provision, specifically whether the average daily trading volume should be restricted to the Toronto Stock Exchange (TSX) alone or include all trading reported in the TSX Composite index (which aggregates trading from TSX and alternative trading platforms).

The court, applying principles of statutory and contractual interpretation, found that the Liquidity Condition should include all transactions reported in the TSX Composite, thereby dismissing the applicants' request for a declaration and their related oppression claim.

The Alliance to Protect Prince Edward County (APPEC) sought a declaration that a Feed-In-Tariff (FIT) Contract between the Independent Electricity System Operator (IESO) and WPD White Pines Wind Incorporated (White Pines) was null and void, arguing White Pines failed to meet contractual capacity requirements.

APPEC also raised issues of legitimate expectations and negligent misrepresentation by IESO.

The court dismissed APPEC's application, finding that the doctrine of legitimate expectations did not apply as it creates procedural, not substantive, rights, and APPEC was not a party to the contract.

Furthermore, no special relationship existed to support a claim of negligent misrepresentation, and IESO and White Pines properly amended their contract in accordance with the FIT Rules and the Environmental Review Tribunal's decision.

The respondents brought a motion to strike out two applications challenging the constitutionality of the Global Adjustment under the Electricity Act, 1998.

The responding party argued that the Global Adjustment was an unconstitutional tax that violated s. 53 of the Constitution Act, 1867.

The court applied the Lawson and Westbank tests, concluding that the Global Adjustment is a regulatory charge tied to a complex regulatory scheme, not a tax.

The court found it plain and obvious that the applications could not succeed and granted the motion to strike.

The defendant, Renfrew Power Generation Inc. (RPG), brought a motion to decertify a class action alleging trespass due to shoreline erosion caused by a raised lake level.

The original certification was based on the understanding that a 107.5 Contour Line defined all class members' property boundaries.

New survey evidence, obtained after certification, revealed that many class members' boundaries were not defined by this contour line, but by metes and bounds or other methods, and that RPG acquired flooding rights through various means not uniformly affecting all properties.

The court found that the common issue, as certified, was no longer necessary or a substantial ingredient for each class member's claim, as individual property boundary determinations were required.

The motion to decertify was granted.

This supplemental endorsement in CCAA proceedings addressed the secured status of a claim (#11(b)) filed by United States Steel Corporation (USS) against U.S. Steel Canada Inc. (USSC).

The claim arose from USS's payments under guarantees for USSC's third-party obligations.

The court found that USS's rights of indemnification were not "Secured Obligations" under the November Security Agreement, primarily because the agreement's intent was limited to contractual obligations related to direct advances or sale of goods, not third-party guarantees.

Furthermore, the court concluded that the grant of security for these indemnification rights constituted a fraudulent preference under section 95 of the Bankruptcy and Insolvency Act due to a lack of fresh consideration.

Consequently, Claim #11(b) was deemed an unsecured claim.

In a class proceeding, the plaintiffs sought directions for a modified trial procedure to determine the first certified common issue concerning the interpretation of licences of occupation and whether they established a fixed property boundary through a contour line.

The defendant argued the issue should proceed by way of a summary judgment motion supported by affidavits and expert reports.

The court considered the “full appreciation” test for summary judgment and the anticipated need for contested expert survey evidence.

Concluding that summary proceedings would not allow adequate assessment of the expert evidence, the court directed that the common issue proceed by a modified trial procedure with expert reports, an agreed statement of facts, limited discovery, and viva voce expert testimony.

Case management conferences were ordered to establish timelines and further procedural directions.