Court File and Parties

Citation: Ontario Energy Savings L.P. v. 767269 Ontario Ltd., 2008 ONCA 350 Date: 2008-05-05 Docket: C47721 Court of Appeal for Ontario

Before: O’Connor A.C.J.O., Watt J.A. and Hackland J. (ad hoc)

Between: Ontario Energy Savings L.P., Appellant and 767269 Ontario Ltd. and Enersource Hydro Mississauga a division of Enersource Corporation, Respondents

Counsel: Alan J. Lenczner, Q.C. and Michael Hunziker for the appellant David Winer for the respondents

Heard and orally released: April 30, 2008

On appeal from the judgment of Justice D. Brown of Superior Court of Justice dated August 27, 2007.

Endorsement

[1] The application judge found that the contract between the parties was not renewed in 2005 and thus the renewal notice in 2006 was not contractually binding. Accordingly, the application judge dismissed the appellant’s claim for payments under the renewal notice.

[2] The appellant raises for the first time on appeal an argument that the respondent is estopped from claiming reimbursement of the higher amounts set out in the 2006 renewal notice because of its failure to respond to the notice within thirty days.

[3] In Ross v. Ross (1999), 1999 NSCA 162, 181 N.S.R. (2d) 22, the Nova Scotia Court of Appeal set out the test concerning receiving arguments for the first time on appeal. The court said that such an argument, “should only be entertained if the court of appeal is persuaded that all of the facts necessary to address the point are before the court as fully as if the issue had been raised at trial”. The rationale for the principle is that it is unfair to permit a new argument on appeal in relation to which evidence might have been led at trial had it been known the issue would be raised.

[4] In our view, the appellant has not met the test set out in Ross.

[5] The elements of the plea of estoppel are well-established. Among others, they include the need to prove detrimental reliance and also to show that it would not be right to allow the alleged representor, by act or omission, to resile from the belief or expectation he or she engendered in the other: see Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53.

[6] In our view, had estoppel been raised by the appellant in the application below, it would be reasonable to expect that the parties would have developed a more fulsome record with respect to the detriment, if any, suffered by the appellant and the fairness in the circumstances of this case of attaching consequences to the respondents’ failure to respond to the 2006 renewal notice.

[7] For these reasons, we do not consider this an appropriate case to allow the appellant to raise the issue of estoppel on this appeal. Accordingly, the appeal is dismissed. Costs to the respondents are fixed in the amount of $7,500, inclusive of disbursements and GST.

“D. O’Connor A.C.J.O.” “David Watt J.A.” “Charles T. Hackland J. (ad hoc)”