Alan H. Mark

The appellant appealed a motion judge's decision to stay its application in favour of arbitration.

The dispute arose from a comprehensive settlement agreement regarding tobacco smuggling, which contained an arbitration clause.

The appellant sought declarations regarding whether a class action brought by a tobacco board constituted a released claim under the agreement, affecting the respondent's right to escrow settlement payments.

The Court of Appeal allowed the appeal in part, holding that while the arbitrator had jurisdiction to determine issues under section 7 of the agreement, the court must determine issues under section 15 because the tobacco board was not a party to the arbitration agreement and its rights were directly implicated.

Nunavut Iron Ore Acquisition Inc. applied to the Ontario Securities Commission for an order cease trading the shareholder rights plan of Baffinland Iron Mines Corporation.

Nunavut had made an unsolicited takeover bid for Baffinland, which was followed by a higher competing offer from ArcelorMittal supported by the Baffinland board.

The Commission found that the rights plan had served its purpose by facilitating an auction and generating a competing bid.

Maintaining the rights plan would only serve to eliminate the timing advantage of Nunavut's first-in-time offer and force an extension, potentially depriving shareholders of a revised offer.

The Commission concluded it was in the public interest to cease trade the rights plan immediately, allowing shareholders to decide between the competing offers.

The appellant electricity distributor appealed a Divisional Court decision upholding the Ontario Energy Board's refusal to allow recovery of $14.9 million from a rate deferral account.

The appellant argued that a 2002 interim order had approved its revenue requirement and rate deferral plan, and that subsequent legislation (Bill 210) had deemed the interim order final.

The Court of Appeal dismissed the appeal, finding it reasonable for the Board to conclude that the interim order did not approve the revenue requirement or deferral plan, as no prudency review had occurred.

The Court noted the appellant could still apply to the Board for a proper prudency review.

The appellant, a licensed electricity distributor, appealed a decision of the Ontario Energy Board denying the recovery of approximately $15 million in deferred costs accumulated in a regulatory asset account.

The appellant argued that a 2002 interim rate order implicitly approved the deferral plan and that subsequent legislation freezing rates made the order final, entitling them to recovery.

The Divisional Court dismissed the appeal, finding the Board's decision reasonable.

The Court held that the interim order did not approve the deferral plan and that the Board was justified in requiring a prudency review before allowing the recovery of costs from ratepayers.

The respondent was injured when a spider rope, left secured to a guardrail by the appellant's employees, was released by an unknown vandal and struck her car on the highway below.

The trial judge found the appellant liable in negligence for failing to meet industry standards to prevent tampering.

On appeal, the Court of Appeal held that while a duty of care was owed, the trial judge erred in finding a breach of the standard of care.

The intervening act of vandalism was not reasonably foreseeable given the lack of prior incidents and the location of the work.

The appeal was allowed and the action dismissed.

The appellant appealed a Superior Court decision that held a perpetual right to renew a supply of 5000 horsepower of electricity at a preferential rate remained extant.

The Court of Appeal allowed the appeal, finding that the appeal judge failed to give adequate weight to the fact that the original 1928 agreement lapsed in 1987 due to the respondent's failure to give the required renewal notice.

The Court held that subsequent agreements did not revive the perpetual renewal provision, but merely provided a preferential price for a fixed term.

The respondent brought a motion to quash the appellant's appeal on the basis that leave to appeal was required under s. 49 of the Arbitration Act.

The appellant brought a cross-motion to extend the time to seek leave to appeal.

The Court of Appeal found that the underlying application was a claim for an order staying arbitration under s. 48 of the Act, which requires leave to appeal.

The appeal was quashed.

However, the court granted the extension of time to seek leave, noting the initial failure was due to solicitor error and there was no meaningful prejudice to the respondent.

The applicants sought leave to appeal a discretionary order denying them leave to file a representative claim on behalf of uncertified classes in ongoing CCAA proceedings.

The Court of Appeal found no error in the motion judge's exercise of discretion, noting she properly considered the forum of future class certification, the absence of individual claims, and the prejudice of altering the claims process after the claims bar date.

Leave to appeal was refused.

The appellant gas distributor sought to recover unrecorded gas costs, regulatory costs, and interest charges resulting from an accounting error.

The Ontario Energy Board allowed the recovery of the unrecorded costs deferred over three years but denied the recovery of regulatory costs and interest charges.

The Court of Appeal determined the applicable standard of review was reasonableness and upheld the Board's decision, finding it was open to the Board to balance the utility's right to recover prudently incurred costs against the impact on consumers caused by the utility's own accounting error.

The receiver of Ravelston Corporation Limited obtained an order allowing it to attorn to the jurisdiction of a U.S. federal court and plead not guilty to criminal charges on behalf of the corporation.

A shareholder and creditor appealed the order, arguing it involved future rights under s. 193(a) of the Bankruptcy and Insolvency Act, or alternatively sought leave to appeal under s. 193(e).

The Court of Appeal quashed the appeal, finding the order did not involve future rights but merely directed how present rights should be exercised.

The court also refused leave to appeal, concluding the proposed appeal lacked prima facie merit as the supervising judge made no error in principle in exercising his discretion.

The appellant, a natural gas distributor, appealed a decision of the Ontario Energy Board that denied the recovery of interest and regulatory costs associated with $531,794 in prudently incurred but late-reported gas costs.

The Board had allowed the recovery of the principal amount over three years to mitigate the impact on customers.

The Divisional Court dismissed the appeal, finding that the Board's decision involved policy considerations and rate-setting expertise, was subject to a reasonableness standard of review, and was a reasonable balancing of utility and customer interests.

The applicants sought to vary management cease trade orders (MCTOs) under section 144 of the Securities Act to permit trading in connection with a proposed going private transaction by Hollinger Inc. The Commission found that the applicants failed to demonstrate that varying the MCTOs would not be prejudicial to the public interest.

The Commission cited concerns regarding the lack of current audited financial statements, the adequacy of the independent valuation, the potential conflicts of interest in the proposed litigation trust, and evidence of undue influence exerted by related parties on the independent committee and valuator.

The applications were denied.

The respondent utility mistakenly underbilled the appellant for electrical consumption.

The respondent obtained judgment for the full amount of the underbilling.

The appellant appealed, arguing the trial judge erred in finding no evidence to support its estoppel defence.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the appellant failed to show the required element of detriment, as the unexpected profits from the undercharging were used for discretionary reinvestment in the business.

The appellants appealed an order striking out their proposed class action statements of claim for oppression against the respondents.

The claims alleged that a recapitalization plan was oppressive to minority shareholders.

The Court of Appeal dismissed the appeal, finding the claims failed to disclose a reasonable cause of action because the prospectus explicitly warned of the financial risks, the recapitalization plan benefited the company by preventing immediate collapse, and the appellants failed to plead any specific loss or damage.

The appellant Canadian Cable Television Association (CCTA) sought access to the power poles of the respondent provincially regulated electric power utilities to support cable television transmission lines.

The CRTC ordered the utilities to grant access, interpreting 'the supporting structure of a transmission line' in s. 43(5) of the Telecommunications Act to include the utilities' power poles.

The Federal Court of Appeal reviewed the decision on a correctness standard and held that s. 43(5) does not give the CRTC jurisdiction over the power poles of provincially regulated electric power companies.

The Supreme Court of Canada dismissed the appeal, confirming that the standard of review is correctness and that s. 43(5) cannot bear the broad meaning given to it by the CRTC.

On a motion to quash an appeal from a sale approval order in a receivership, the court held that an unsuccessful prospective purchaser had no standing to appeal because the order did not finally dispose of any legal or proprietary right of that bidder.

The court emphasized that the purpose of a sale approval motion is to determine whether the proposed sale is in the best interests of parties directly interested in the proceeds, primarily creditors, not disappointed bidders.

The court rejected arguments that the bidder acquired appeal rights through the terms of a prior negotiation order or by being heard below.

The appeal was quashed with costs to the moving party.

The appellant public utility negligently underbilled the respondent dairy co-operative for electricity over a seven-year period due to a multiplier error.

When the utility sued to recover the arrears on a quantum meruit basis, the respondent raised the defence of equitable estoppel, having relied on the bills to set its own prices.

The Supreme Court of Canada held that unlike the legislation in Maritime Electric, the Ontario Power Corporation Act does not impose a positive statutory duty to collect arrears that would preclude the defence of estoppel.

The appeal was dismissed.