Andrea Wheeler

The defendant brought a motion for summary judgment to dismiss the plaintiff's claim that it held a perpetual and exclusive right to own, operate, and collect tolls from a viable international border crossing in the vicinity of the Ambassador Bridge.

The plaintiff sought declarations of rights granted under the Canadian Transit Company Act and, alternatively, compensation for infringement and expropriation.

The court dismissed the motion, finding that the interpretation of the statutory franchise rights granted under the CTC Act, including whether implicit rights of exclusivity were conferred, raised a genuine issue requiring trial.

The Independent Electricity System Operator (IESO) appealed a lower court's interpretation of its standard-form "feed-in-tariff" (FIT 1) contracts with solar energy suppliers.

The dispute centered on whether suppliers breached contracts by "optimizing" their facilities (installing more efficient solar panels) without IESO's consent, specifically regarding changes to DC energy capacity and DC/AC ratio.

The application judge found that consent was only required for features outlined in the application or contract cover page, which did not include DC capacity or DC/AC ratio.

The Court of Appeal upheld this interpretation, dismissing IESO's appeal, finding no reversible error in the application judge's reasoning regarding contract interpretation or the impact of optimizations on metering plans.

This is a costs endorsement following a decision where solar energy suppliers (the "Suppliers") successfully argued that their "Optimizations" did not constitute "Contract Facility Amendments" under their Feed-in-Tariff (FIT) contracts with the Independent Electricity System Operator (IESO).

The Suppliers sought approximately $2 million in partial indemnity costs, while the IESO proposed around $817,000.

The court, applying Rule 57 factors, found the issues complex and high-stakes for both parties.

Despite the Suppliers' higher learning curve and efficient litigation, the court deemed their claimed hours disproportionate.

The court fixed the aggregate partial indemnity legal fees at $1 million, plus disbursements of $270,000 (less specific deductions), finding this amount fair, reasonable, and proportionate given all circumstances.

The Independent Electricity System Operator (IESO) sought to prevent solar energy suppliers from increasing their DC capacity, arguing it constituted a 'Contract Facility Amendment' requiring IESO consent under Feed-in-Tariff (FIT) 1.3 and 1.5 contracts.

The suppliers argued that such 'Optimizations' did not require consent as they did not alter features explicitly outlined in the contract application or cover page, and did not exceed AC capacity limits.

The court found that the Optimizations were not Contract Facility Amendments requiring IESO notice and consent, as DC capacity was not an 'outlined' feature in the contracts.

The suppliers' applications for declarations were granted, and the IESO's counter-applications were dismissed.

The plaintiff, Zorida Chrysostom, brought a medical negligence action against the defendant physicians and health system, alleging failure to diagnose cauda equina syndrome during her emergency department visit.

The court found that two defendant physicians, Dr. Mann and Dr. Kempenaar, fell below the standard of care by failing to adequately inquire about and document saddle anaesthesia, a cardinal symptom of cauda equina syndrome.

The court also concluded, on a balance of probabilities, that the plaintiff did suffer from cauda equina syndrome at the time of the initial visit, which would have necessitated earlier emergency surgery and improved her outcome.

Damages were agreed upon, and the judgment focused on liability.

This is a costs endorsement from the Court of Appeal for Ontario, following an appeal where the lower court's judgment and costs order were set aside and the application remitted for rehearing.

The parties were unable to agree on the disposition of the original application costs.

The Court of Appeal determined that the fairest approach was to leave the issue of the application costs to the trier of fact on the rehearing, whether before a Superior Court judge or in an arbitral process.

Appeal costs had previously been awarded to the appellants.

This is an appeal concerning the interpretation of a complex project agreement for the Eglinton Crosstown LRT in the context of the COVID-19 pandemic.

The application judge had found that a specific contractual provision (s. 62.1(c)) requiring a "Variation Enquiry" was triggered by an internal email from the Crown agencies to their own staff, which was never sent to the consortium.

The Court of Appeal found that the application judge made a palpable and overriding error in concluding that this internal email constituted notification to the consortium.

The appeal was allowed, the original judgment set aside, and the application remitted to the Superior Court for a rehearing to consider other arguments, including good faith and the indivisibility of the Crown, which the application judge had not addressed.

This decision concerns a request for reconsideration of a prior order granting leave to the plaintiffs to amend their statement of claim.

The defendant argued that an inadvertent error in the draft amendments quoted in the previous reasons was material, suggesting an attempt to introduce a negligent misrepresentation claim after the limitation period.

The court clarified that the actual proposed amendments were less problematic than the version inadvertently quoted.

The court affirmed its previous decision to grant leave to amend, finding the actual proposed amendments were more benign and did not warrant a different outcome.

No costs were awarded for the reconsideration request.

The plaintiffs brought an action against several physicians involved in the treatment of their son, alleging a failure to diagnose Fragile X Syndrome, which led to the birth of a second child with the same genetic disorder.

The plaintiffs moved to amend their statement of claim to provide greater particularity, while the defendant physician moved to strike the claim, arguing he owed no duty of care to the parents of his patient.

The Superior Court of Justice granted the motion to amend, finding it did not introduce a new, statute-barred cause of action.

The court dismissed the motion to strike, holding that it was not plain and obvious that a novel duty of care could not be recognized between a physician and the parents of a patient in the context of genetic testing and family planning.

The applicants sought $430,000 in costs following a successful application regarding a construction dispute.

The respondents argued that a settlement offer they made should limit the applicants' costs to the period before the offer, and that disbursements for online legal research should not be compensable.

The court found that the respondents' non-monetary settlement offer was more favourable than the judgment obtained by the applicants, as it would have led to a faster final determination of the underlying dispute.

Consequently, the applicants' costs were limited to $92,119.92 incurred before the offer.

The court also disallowed the $4,060.18 claimed for online legal research, finding the applicants failed to prove these costs did not fall within standard office overhead.

The applicants, a consortium of construction companies building the Eglinton Crosstown LRT, sought declarations that the COVID-19 pandemic constituted an Emergency under their Project Agreement, entitling them to a Variation Enquiry for an extension of the Substantial Completion Date.

The respondents moved to stay the application, arguing the contract required all litigation to be deferred until after Substantial Completion.

The court dismissed the motion for a stay, finding it would cause irreparable harm by depriving the applicants of their contractual right to seek an extension.

The court granted the declarations, holding that the pandemic was an Emergency and that the respondents had required the applicants to implement additional or overriding procedures (social distancing), thereby triggering the Variation Enquiry process.

The defendants brought a motion to dismiss the plaintiffs' claims as an abuse of process and res judicata, and sought an order under s. 140 of the Courts of Justice Act to prevent the plaintiffs from starting further claims without leave.

The court dismissed the claims against all defendants except Dr. Sit and Dr. Brazel without leave to amend, finding they had been previously decided and were an abuse of process.

The court declined to make a s. 140 order, noting it lacked jurisdiction to do so on a motion.

The claims against Dr. Sit and Dr. Brazel, which related to separate allegations of battery and lack of informed consent, were struck with leave to amend.

This medical malpractice action concerned whether Dr. Henry Fairley breached the standard of care by performing a hysterectomy on Francine Breton in 2010, five years after a previous subtotal hysterectomy by another doctor.

The plaintiff alleged the surgery was unnecessary and resulted in a bladder injury.

The court found that Dr. Fairley had a reasonable clinical basis to proceed with the surgery, based on the plaintiff's persistent symptoms, imaging reports suggesting residual uterine tissue, and the previous pathology report confirming adenomyosis.

The court dismissed the plaintiff's action, concluding that Dr. Fairley met the standard of care.