Ontario Superior Court of Justice – Divisional Court

Controltech Engineering Inc. v. Ontario Power Generation Inc.

Date: 2000-02-11

Ian A. Mondrow, for the plaintiffs/appellants;

John M. Rattray, for the Ontario Power Generation Inc.;

Peter H. Griffin, for the individual defendants.

(Court File No. 45/99)

[1] MacFarland, J. [orally]: We are in agreement with the analysis of Sharpe, J., of the issues and his findings in relation to those issues and, particularly, where he said at para. 8 of his reasons:

"… at its core, the plaintiffs' claim rests on the assertion that the defendant Ontario Hydro misrepresented important facts to those who participated in the RFP process."

and, further,

"… the balance of the detailed allegations contained in the statement of claim, demonstrate that the plaintiffs do not rely on any single misrepresentation."

[2] Further, we agree with his conclusions at para. 16 of his reasons, where he said in part:

"While there is a common factual core to the claims of the various bidders, I am not persuaded that this common core amounts to a common issue for the purposes of s. 5. In particular, I fail to see how the proposed common issues would resolve anything that would 'move the litigation forward' in as much as it would still be necessary to examine what was said to each individual bidder with respect to each individual claim. This is not a case that lends itself to determination of the discrete issues of misrepresentation and negligence or recklessness, leaving cleanly for individual consideration the issue of reliance on the specific statement dealt with at the common stage. Here, the facts and issues cannot be broken down into appropriate and distinct categories that would allow the case to proceed in that manner. No single or common statement can be identified as having been made at the same time, or in a sufficiently similar context, and because different statements were made to various class members at various stages of the bidding process and in relation to various proposals, it would be necessary to determine on an individual basis precisely what the individual bidder was told. The plaintiff simply cannot escape the consequences of the fact that all claims do not all flow from the misrepresentation."

[3] In conclusion, we find no error in the determination of Sharpe, J., and, accordingly, the appeal is dismissed. For reasons dictated this day, the appeal is dismissed. Costs to both respondents appearing fixed at the single sum of $5,000.

Appeal dismissed.