Court of Appeal for Ontario
Citation: Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 687
Date: 2016-09-19
Docket: M46825 (C60286, C60287, C60288, C60289, C60290, C60291)
Before: Hoy A.C.J.O., Lauwers and Benotto JJ.A.
Between
C60286
Iroquois Falls Power Corporation Applicant (Respondent in Appeal/Moving Party)
and
Ontario Electricity Financial Corporation Respondent (Appellant on Appeal/Respondent on Motion)
AND
C60287
Cochrane Power Corporation Applicant (Respondent in Appeal/Moving Party)
and
Ontario Electricity Financial Corporation Respondent (Appellant on Appeal/Respondent on Motion)
AND
C60288
N-R Power and Energy Corporation, Algonquin Power (Long Sault) Partnership and N-R Power Partnership Applicant (Respondent in Appeal/Moving Party)
and
Ontario Electricity Financial Corporation Respondent (Appellant on Appeal/Respondent on Motion)
AND
C60289
Kirkland Lake Power Corporation Applicant (Respondent in Appeal/Moving Party)
and
Ontario Electricity Financial Corporation Respondent (Appellant on Appeal/Respondent on Motion)
AND
C60290
Lake Superior Power Limited Partnership, Beaver Power Corporation, Carmichael Limited Partnership and Algonquin Power (Nagamami) Limited Partnership Applicant (Respondent in Appeal/Moving Party)
and
Ontario Electricity Financial Corporation Respondent (Appellant on Appeal/Respondent on Motion)
C60291
AND
Cardinal Power of Canada, L.P. and MPT Hydro L.P. Applicant (Respondent in Appeal/Moving Party)
and
Ontario Electricity Financial Corporation Respondent (Appellant on Appeal/Respondent on Motion)
Counsel:
J.D. Timothy Pinos, Emily Larose and Stephanie Voudouris, for the respondent (appellant on appeal), Ontario Electricity Financial Corporation
James D.G. Douglas and Heather K. Pessione, for the applicants Iroquois Falls Power Corporation, Cochrane Power Corporation, N-R Power and Energy Corporation, Algonquin Power (Long Sault) Partnership and N-R Power Partnership and Kirkland Lake Power Corporation
Crawford Smith and Nick Kennedy, for the applicants Lake Superior Power Limited Partnership, Beaver Power Corporation, Carmichael Limited Partnership and Algonquin Power (Nagamami) Limited Partnership
Glenn Zacher, for the applicants Cardinal Power of Canada, L.P. and MPT Hydro L.P.
Heard and released orally: September 13, 2016
On a motion to vary the order of Justice Eileen E. Gillese, dated August 5, 2016.
Endorsement
[1] Ontario Electricity Financial Corporation (“OEFC”) brings this motion under s. 7(5) of the Courts of Justice Act to vary the August 5, 2016 order of Justice Gillese, dismissing its motion to stay a portion of certain Superior Court orders pending determination of its application for leave to appeal to the Supreme Court of Canada and, if leave be granted, a determination of those appeals. The portions of the orders at issue require OEFC to pay an estimated $180 million to the respondents.
[2] OEFC argues that Justice Gillese made three reviewable errors:
She applied the wrong standard in respect of whether OEFC’s leave to appeal application to the Supreme Court of Canada raised a serious issue to be tried;
Her conclusion that OEFC had not established irreparable harm is tainted by palpable and overriding error; and
She concluded that OEFC had not established that it will suffer greater harm if the stay is refused than the respondents will suffer if the stay is granted in the absence of evidence from the respondents that, if the stay were refused, and leave to appeal to the Supreme Court were subsequently granted, they would be capable of repaying the amounts paid to them by OEFC.
[3] We reject these arguments.
[4] Justice Gillese properly considered the stringent leave requirements in the Supreme Court Act in considering the serious issue component of the three-part test for obtaining a stay pending appeal. We agree with the reasoning underpinning her conclusion that “there is little likelihood that the Supreme Court will grant OEFC leave to appeal” and that “it is unlikely that the Supreme Court will grant leave”. Indeed, we would characterize the likelihood of leave being granted as remote.
[5] In our view, OEFC simply seeks to reargue the irreparable harm component of the test for obtaining a stay pending appeal. We see no basis to interfere with Justice Gillese’s rejection of OEFC’s argument that irreparable harm will result if the stay is not granted.
[6] We similarly reject OEFC’s third argument. The onus was on OEFC to establish that it would suffer greater harm if the stay were refused than the respondents would if the stay were granted. The respondents did not have the evidentiary burden of proving they could repay if leave were granted and the appellant won the prospective appeal.
[7] This motion is accordingly dismissed. The respondents shall be entitled to their costs, fixed in the amount of $8,000, including disbursements and HST.
“Alexandra Hoy A.C.J.O.”
“P. Lauwers J.A.”
“M.L. Benotto J.A.”