Jonathan Nicholas McDaniel

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 endorsement addresses the respondent's attempt to file a factum in an appeal that exceeded the prescribed length and included unauthorized schedules, leading to its refusal by court registry staff.

The judge, while affirming the registry's decision for non-compliance, granted the respondent leave to file the factum (after a minor reduction) due to the imminent appeal hearing.

To ensure procedural fairness, the appellant was also granted leave to file a reply factum of a specified length.

The judge also used the opportunity to advocate for a rule change to permit reply factums as of right in appeals.

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.

This is a costs endorsement following a motion by Zurich Insurance Company Ltd. for the production of a Crown Disclosure Brief from the defendants Vasos Georgiou and John Aquino.

The original motion was adjourned sine die after the Attorney General provided key undertakings.

The parties agreed on the quantum of costs ($20,000) but not on entitlement.

The court, exercising its discretion under the Courts of Justice Act and Rule 57, decided that no costs should be awarded to any party.

The decision considered the novelty of the issues, the timing of the Attorney General's undertakings, and the fact that the outcome was not primarily based on the arguments presented by the defendants seeking costs.

The plaintiff, a former employee, brought a motion for summary judgment against the defendant for unpaid vacation, deferred bonuses, and stock options.

The court found that the plaintiff was not constructively dismissed but had retired.

However, the court granted summary judgment for the plaintiff on the claims for unused vacation pay, deferred bonuses, and the value of lost stock options, finding no genuine issue requiring a trial for these claims.

The defendant's counterclaim for just cause dismissal had been previously dismissed by the Court of Appeal, and the current court found issue estoppel applied to prevent its re-litigation as a defense.

The plaintiff in a civil rescission action sought an order compelling the defendants to produce the Crown disclosure brief they received in related criminal proceedings concerning the same alleged fraud in a hospital procurement process.

The Attorney General opposed immediate production, arguing it could taint witnesses before they testified in the criminal trial.

The court balanced the interests under the Wagg framework and adjourned the motion sine die, accepting the Attorney General's undertaking to conduct a Wagg review and produce the documents within eight weeks after a verdict in the criminal proceedings.

The Court of Appeal for Ontario issued a costs endorsement following a successful Rule 137.1 motion.

The appellant sought full indemnity costs of $273,111.22, which the respondent argued was excessive.

The court affirmed the statutory presumption under Rule 137.1(7) for full indemnity costs for a successful moving party, finding the award appropriate given the respondent's unsubstantiated $150 million counterclaim.

The court fixed costs at the amount claimed by the appellant.

The appellant, an employee, sued for wrongful dismissal.

The respondent counterclaimed for $150 million alleging breach of fiduciary duties.

The appellant moved to dismiss the counterclaim under s. 137.1 of the Courts of Justice Act (anti-SLAPP), to dismiss it under r. 21 as frivolous/vexatious, for leave to amend his Statement of Claim for deferred bonuses, and for summary judgment.

The motion judge dismissed the anti-SLAPP motion and the leave to amend, and deferred the other motions.

The Court of Appeal allowed the appeal, finding the motion judge erred in interpreting "arises from" too narrowly for the anti-SLAPP motion, and that the counterclaim lacked substantial merit and valid defences.

The Court also found the motion judge erred in deferring the r. 21 and summary judgment motions, and in refusing leave to amend the Statement of Claim, as the bonus claim was an additional head of damages, not a new cause of action.

The counterclaim was dismissed, the amendment allowed, and the summary judgment motion returned to the lower court.

The appellants, a group of subcontractors and a bank, appealed an application judge's decision that rescission of surety bonds might be possible even if it affects innocent third parties.

The bonds were issued by Zurich Insurance Company Ltd. for a large construction project, but Zurich later discovered alleged fraudulent misrepresentations and collusion that induced it to issue the bonds.

The appellants sought a declaration that rescission was unavailable as a matter of law due to the involvement of innocent third parties.

The Court of Appeal dismissed the appeal, affirming that prejudice to third parties is not an absolute bar to rescission, especially in cases of fraudulent misrepresentation, and that such a determination requires a full factual record at trial.

The plaintiff brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the defendant's counterclaim, arguing it was a SLAPP intended to silence his allegations of a poisoned workplace.

The plaintiff also moved to strike the counterclaim under the Rules of Civil Procedure, amend his statement of claim, and for summary judgment.

The court dismissed the anti-SLAPP motion, finding the plaintiff failed to show the counterclaim arose from his expressions.

The court also denied leave to amend the statement of claim as the proposed claim for deferred bonuses was statute-barred.

The remaining motions were deferred pursuant to the mandatory stay in s. 137.1(5) of the Courts of Justice Act.

The applicants, a syndicate of lenders and various construction trades, sought declarations that the respondent surety could not rescind performance and payment bonds issued for a hospital redevelopment project.

The surety had discovered alleged fraud and collusion in the procurement process and commenced a separate action for rescission.

The applicants argued they were innocent third parties whose rights under the bonds could not be defeated by the alleged fraud of the principals.

The court dismissed the applications, finding that the applicants' rights were derivative of the principals and that rescission remained a possible equitable remedy that must be determined on a full factual record at trial.