Ian Flett

East Durham Wind, LP moved to be added as a party or intervener in an application for judicial review concerning a Renewable Energy Approval for its wind project.

The applicant opposed the motion, while the respondent Ministry consented.

The court granted East Durham Wind party intervener status under Rule 13.01, finding it had a direct economic interest and could make a useful contribution.

The court also granted the moving party's request to conditionally transfer the proceeding from Brampton to Toronto to facilitate an expedited hearing before the scheduled start of project construction.

The appellant, a farm implement dealer, appealed the non-renewal of its dealer agreement by the respondent manufacturer.

The Tribunal found that the respondent breached the Farm Implements Act and Ontario Regulation 123/06 by failing to provide the required written notice with full reasons and an opportunity to cure before deciding not to renew the agreement.

The Tribunal determined that the regulation applied retrospectively to the existing contract, removing the respondent's unfettered right to not renew.

The Tribunal awarded the appellant damages for loss of profits based on a two-year reasonable notice period and for obsolete assets, totaling $139,846 plus pre-judgment interest.

In a motion arising from an application relating to municipal council conduct, the court addressed refusals made during examinations for discovery and whether the applicant must disclose the identity of individuals financing the litigation.

Respondent councillors had refused to answer questions about matters discussed during closed municipal council meetings under s. 239 of the Municipal Act.

The court held that in camera municipal meetings are not cloaked with confidentiality and that councillors may be required to disclose what transpired, subject only to solicitor-client privilege.

The court also ordered the applicant to disclose the identity of the person or persons who funded the legal retainer, rejecting claims that solicitor-client or litigation privilege protected the identity of the financiers.

The applicant, a public interest litigant, sought leave to appeal an Ontario Municipal Board decision but the motion was dismissed as abandoned after a time extension was refused.

The respondents sought costs.

The court held that public interest litigants must adhere to procedural rules and awarded costs to the respondents for the procedural motion.

For the leave motion itself, the court declined to award costs to the municipality, recognizing both parties acted in the public interest, but awarded partial indemnity costs to the private landowner respondents who were forced to participate.

The unsuccessful appellant in an OMB appeal sought to be excused from paying costs, arguing he was acting as a public interest litigant.

The court rejected this argument, finding the litigation did not involve an issue of public significance extending beyond the immediate parties.

Applying the principle that costs must be fair and reasonable, the court found the respondents' requested amounts excessive and awarded $10,000 to the primary respondent and $5,000 to each of the other two respondents.

During the continuation of a hearing to consider damages, the appellant requested a voir dire regarding the admissibility of revised financial data and an expert report addendum.

The appellant had recently discovered that its original damages claim relied on projections rather than actual sales and expenses data now available.

The respondent objected on grounds of relevance and timing.

The Tribunal admitted the evidence, finding it prima facie relevant and concluding that the prejudice to the appellant of excluding it outweighed the prejudice to the respondent.

To mitigate any prejudice, the Tribunal granted a short adjournment, permitted further limited examination for discovery, and allowed the respondent to supplement its expert report.

The respondent Moose Cree First Nation brought a motion to strike portions of a judicial review application and supporting affidavit filed by the MoCreebec Council of the Cree Nation regarding a hydroelectric project.

The parties resolved several issues, including the removal of Charter and Aboriginal rights claims.

The court deferred a decision on striking hearsay evidence in the affidavit pending further information.

Given the complexity and public policy implications, the court referred the remaining issue of the applicant's capacity to bring the application to a full panel of the Divisional Court.