Court of Appeal for Ontario

Citation: SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP, 2025 ONCA 170

Date: 2025-03-04

Docket: COA-23-CV-0685

Before: van Rensburg, Sossin and Dawe JJ.A.

Between:

SIF Solar Energy Income & Growth Fund, SIF Solar Energy Operating Trust, SIF #2 Solar Income & Growth, and SIF #2 Operating Trust, by their Trustees, Adam S. Heinrich, Leon Zupan, Stewart Bruce, Jim Lotimer, C. Paul Storace, SIF Capital Canada Inc., Solar Power Income Fund GP#2 Inc., Solar Power Income Fund GP#4 Inc., Solar Power Income Fund GP#5 Inc., Solar Power Income Fund GP#6 Inc., Solar Power Income Fund GP#7 Inc., SIF #2 Reliant Essex GP Inc., SIF #2 Solar Income & Growth GP (A) Inc., SIF #2 Solar Income & Growth GP (B) Inc., SIF #2 Solar Income & Growth GP (C) Inc., and SIF #2 Solar Income & Growth GP (D) Inc.

Plaintiffs (Appellants)

and

Aird & Berlis LLP

Defendant (Respondent)

Counsel:

Brett David Moldaver, for the appellants

William Pepall and Rebecca Shoom, for the respondent

Heard: May 7, 2024

On appeal from the order of Justice Michael A. Penny of the Superior Court of Justice, dated May 16, 2023.

COSTS ENDORSEMENT

[1] The appeal was allowed in part, and we awarded no costs of the appeal on the basis that success was divided.

[2] At their request the parties were afforded the opportunity to make written submissions on the question of costs in the court below. The appellants sought an order setting aside the costs award of $20,000 against them, and awarding no costs in the court below, on the basis that this would be consistent with the divided success in the result. The respondent asserted that the costs order made by the motion judge ought to remain in place, arguing that this was the effect of our decision which only set aside one specific paragraph of the order under appeal, or alternatively that the underlying motion decision and its procedural consequences, which were in its favour, were largely preserved by our decision.

[3] First, we do not agree that our reasons should be read as endorsing the costs order in the court below. The issue of costs in the court below was not addressed by the parties when the appeal was heard and there is nothing in our reasons to suggest that costs in the respondent’s favour were warranted. Second, the divided success on the appeal informs the appropriate disposition of costs in the court below. In allowing the appeal in part, we concluded that the motion judge erred in finding that the commencement of the A&B Action was an abuse of process and in permanently staying that action, but, for practical reasons set out at paras. 61 and 62 of our reasons, we determined that it was appropriate to uphold the motion judge’s requirement for a motion to add A&B as a defendant to the Main Action, and to impose a temporary stay of the A&B Action.

[4] Accordingly, the appropriate disposition is to set aside the $20,000 costs award, and to order no costs of the motion in the court below.

“K. van Rensburg J.A.”

“L. Sossin J.A.”

“J. Dawe J.A.”