Bhreagh Ross

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 moved to disqualify Norton Rose Fulbright LLP (NRF) from acting as lawyers of record for the K2 defendants.

The plaintiff argued that it was a current client of NRF for patent applications, and that NRF's representation of the K2 defendants in this litigation, which involved allegations that the plaintiff's core technology did not exist, created a disqualifying conflict of interest.

The court found that the two mandates were substantially related and that the bright line rule applied, rendering the advance waiver in NRF's engagement letter ineffective.

The motion to disqualify NRF was granted.