Fred A. Platt

The appellant, Deltro Electric Ltd., appealed from an order requiring it to repay $2 million USD to the respondent, Potentia Renewables Inc., with a receiver appointed over its assets in the event of non-payment.

The dispute arose from a failed business relationship concerning a ground-mount solar project in Barbados.

The application judge found that Deltro had breached and repudiated its obligations under a Letter of Intent and Amendment to Letter of Intent, and that final approval of the project had not been obtained within the required timeframe.

The Court of Appeal dismissed the appeal, upholding the application judge's interpretation of the contractual documents, rejection of fresh evidence, and appointment of the receiver with limited liability provisions.

This endorsement addresses three issues following earlier Reasons for Decision: the appointment of KSV Advisory as interim receiver, Deltro's request to reargue its position on repudiation of a Letter of Intent (LOI), and Deltro's request to introduce new affidavit evidence.

The court appointed KSV as receiver, finding no conflict of interest.

Deltro's motion to reargue the repudiation issue was dismissed based on the functus officio principle, as the argument was previously available and no miscarriage of justice was demonstrated.

Similarly, Deltro's motion to introduce new affidavit evidence was dismissed, as the evidence could have been obtained with reasonable diligence and did not meet the high threshold for reopening a case to avoid a miscarriage of justice.

The applicant sought a declaration that the respondent was indebted to it for $2,000,000 USD advanced for a solar project in Barbados, and the appointment of a receiver.

The respondent failed to obtain the required zoning approval within the stipulated 12-month period and repudiated the agreements.

The court found that the respondent was obliged to repay the funds and rejected its claim for equitable set-off based on a separate project in the Dominican Republic.

The court granted judgment for $2,000,000 and ordered the appointment of a receiver, subject to a 30-day grace period for repayment.

Following a motion where the applicants achieved substantial success, the parties provided written submissions on costs.

The applicants sought costs on a substantial indemnity basis in the amount of $14,803.00 plus disbursements.

The respondents argued they should be compensated for costs thrown away due to allegedly wasteful steps.

The court awarded the applicants $5,000 inclusive of disbursements and taxes, leaving the respondents' arguments regarding wasted costs to be determined by the trial judge.

Following the dismissal of the plaintiff's motion for leave to issue a certificate of pending litigation, the court determined the costs of the motion.

The defendants sought substantial indemnity costs of $38,500 based on prior offers to settle, while the plaintiff argued for partial indemnity costs of $12,000.

The court found that the defendants' offers to settle contained conditions not reflected in the final order, and thus did not warrant elevated costs.

The court awarded the defendants their partial indemnity costs, fixed at $26,000 inclusive of HST and disbursements.

The plaintiff sought leave under section 103 of the Courts of Justice Act and Rule 42.01 of the Rules of Civil Procedure to issue a certificate of pending litigation over a Toronto property arising from a dispute in a real estate redevelopment venture.

The parties had entered several agreements to jointly purchase, redevelop, and sell residential properties with profits shared equally.

Although the court found there was a triable issue as to whether the plaintiff had an interest in land based on the joint venture arrangement, other equitable factors weighed against granting the CPL.

The property was not unique, the claim could be adequately compensated by damages, and substantial funds from a mortgage discharge were already held in trust to secure potential claims.

Balancing the equities and considering the availability of alternative remedies, the court declined to grant leave to issue the CPL.

Following a successful summary judgment for foreclosure and dismissal of a counterclaim, the successful mortgagee sought costs on a substantial indemnity basis.

Although foreclosure actions generally do not result in a personal costs award against the mortgagor because the debt is extinguished by the foreclosure, the court considered whether an exception applied where an untenable defence is raised.

The mortgagor had advanced serious and unfounded allegations of fraud and impropriety against the mortgagee and the mortgagee’s principal.

The court found the defence strategy legally and factually untenable and held that the case fell within the recognized exception to the general rule.

Substantial indemnity costs were awarded and ordered payable jointly and severally by the mortgagor corporation and its counsel personally under Rule 57.07.

In ongoing litigation concerning a family marina business under receivership, the court considered a motion by the court‑appointed receiver seeking approval of its interim reports, payment of interim receiver’s fees, and approval of legal fees incurred by its counsel.

The defendants opposed the motion, alleging bias by the receiver and arguing that the original receivership order permitted payment only from the proceeds of a future sale of the marina.

The court found no evidence of bias or improper conduct by the receiver and held that a material change in circumstances—specifically opposition to the marina’s sale—permitted variation of the prior order to allow interim payment.

The court approved the receiver’s interim reports and authorized payment of the receiver’s fees and legal fees as fair and reasonable, but declined to grant the receiver a first charge over the marina property.

The court also ordered that $17,000 be released to the estate once a properly appointed estate trustee or administrator complied with Rule 9 of the Rules of Civil Procedure.

The plaintiff law firm brought two actions against the defendants for unpaid legal accounts.

The defendants pleaded equitable set-off, alleging they were overcharged on previously paid accounts.

The plaintiff brought a motion under Rule 21.01(1)(a) to strike the equitable set-off defence, arguing it was statute-barred by the one-year limitation period in the Solicitors Act.

The court dismissed the motion, finding that material facts were in dispute regarding whether the accounts were interim or final, whether the presumption of acceptance by payment was rebutted, and whether special circumstances existed.

The court also noted that equitable set-off is generally not barred by statutory limitation periods.