Alan H. Mark

The plaintiff in a complex family trust dispute brought motions on the eve of trial for further documentary production, further examinations for discovery, and leave to amend her Statement of Claim.

The motions sought to introduce new allegations that the defendants covered up and settled claims of sexual misconduct against the family patriarch, Frank Stronach.

The court dismissed both motions, finding no evidence that the requested documents existed, that the new allegations were irrelevant to the pleaded claims of corporate mismanagement, and that amending the pleadings three weeks before a scheduled seven-week trial would cause non-compensable prejudice and delay.

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.

The plaintiff moved to strike numerous paragraphs of the defendants' statements of defence on the basis of res judicata or abuse of process, arguing the defendants were seeking to re-litigate findings made by the Mining and Lands Tribunal (MLT) regarding a hydroelectric dam approval.

The court dismissed the motion, finding that the impugned pleadings fairly responded to the plaintiff's allegations of delay and misfeasance.

Furthermore, the court held that the MLT decision was merely a recommendation to the Minister and not a final judicial decision capable of grounding res judicata.

The motion against the Independent Electricity System Operator was also dismissed as it was not a party to the MLT proceeding.

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.

The plaintiffs requested a case conference to fix a trial date despite failing to complete a mandatory mediation by the court-ordered deadline.

One of the plaintiffs booked a vacation that conflicted with the scheduled mediation date, showing disregard for the court's prior order.

The court refused to dispense with the mediation requirement or hold a trial date as a placeholder, and consequently struck the action from the trial list until mediation is completed and the matter is truly ready for trial.

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.

The applicant brought an application under s. 17(8) of the Arbitration Act, 1991 to set aside an arbitral tribunal's preliminary ruling that it had jurisdiction to decide a dispute between the parties.

The dispute arose from emergency repair work performed by the applicant at the respondent's power plant, which allegedly caused $10 million in damages.

The respondent initiated arbitration based on a 2009 'Purchase Order General Terms and Conditions' document signed by the applicant.

The court conducted a hearing de novo and found that the 2009 document was an inchoate agreement that was never incorporated into the 2018 purchase order for the repair work.

Applying the objective theory of contract formation, the court concluded there was no consensus ad idem regarding an arbitration agreement.

The arbitral tribunal's decision was set aside for lack of jurisdiction.

The appellants appealed a motion judge's decision striking out portions of their statements of defence.

The impugned pleadings referred to documents and communications from a judicial mediation, which the motion judge found were prima facie protected by settlement privilege.

The Divisional Court dismissed the appeal, holding that the motion judge correctly applied Rule 25.11 of the Rules of Civil Procedure.

The court affirmed that the respondents had not waived settlement privilege and that the justice of the case did not require an exception to allow the appellants to plead the privileged information to defend against breach of fiduciary duty claims.

Cineplex and Cineworld entered into an Arrangement Agreement for Cineworld to acquire Cineplex for $2.8 billion.

Following the outbreak of the COVID-19 pandemic and mandated theatre closures, Cineplex deferred payments to landlords and suppliers to manage liquidity.

Cineworld terminated the agreement, alleging Cineplex breached the ordinary course covenant.

The court found that Cineplex's cash management measures were commercially reasonable and did not breach the agreement, noting that the pandemic risk was allocated to Cineworld under the Material Adverse Effect clause.

Cineworld's termination was a repudiation, and Cineplex was awarded $1.24 billion in damages for lost synergies and transaction costs.

The moving parties sought leave to appeal from the decision of Cavanagh J. dated August 26, 2021.

The Divisional Court granted the motions for leave to appeal and awarded costs in the agreed amount of $20,000 payable by the responding parties.

A case management teleconference was scheduled to settle a schedule for the exchange of appeal materials and to schedule an expedited appeal date.

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.

The plaintiffs moved for an interlocutory injunction to prohibit the Independent Electricity System Operator (IESO) from enforcing the deemed terminations of 34 Feed-In Tariff (FIT) contracts and discontinuing payments.

The court found that the motion was an impermissible collateral attack on prior court orders that had deemed the contracts terminated.

Furthermore, the plaintiffs sought a mandatory injunction but failed to establish a strong prima facie case, as the issues of termination had been decided in prior litigation.

The court also found the plaintiffs' evidence of irreparable harm to be speculative.

The motion for an interlocutory injunction was dismissed.

The applicants, commercial real estate developers, sought judicial review of a decision by the City of Toronto Council to deny their applications for property tax rebate grants under a community improvement plan by-law.

The applicants argued that because their projects met the threshold eligibility criteria, the City was required to approve the grants.

The Divisional Court dismissed the application, finding that the by-law and governing legislation conferred broad discretion on the Council to consider other factors, including whether the grants were economically necessary for the projects to proceed.

The Court also found no denial of procedural fairness and awarded costs to the City.

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.

The moving parties sought a stay of two orders of the Court of Appeal pending their application for leave to appeal to the Supreme Court of Canada.

The underlying dispute involved the respondent's termination of 36 standard-form Feed-in Tariff Contracts for solar power facilities.

Applying the three-part test for a stay, the motion judge found that the proposed appeal raised serious questions of law regarding contractual interpretation, that the moving parties would suffer irreparable harm if the contracts were terminated and their loans called, and that the balance of convenience favoured preserving the status quo.

The motion for a stay was granted.