Patrick Gerald Duffy

The Ontario Energy Board appealed a decision that had required it to apply a mandatory prudence framework when assessing Ontario Power Generation compensation costs in rate-setting.

The majority held tribunal participation in defending its own decision was proper in this regulatory context and found no impermissible bootstrapping on appeal.

The Court held the governing statute did not require a single prudence methodology and permitted the Board to use a mixed approach for costs that were partly committed and partly subject to managerial discretion.

The Board’s disallowance of $145 million in compensation costs was found reasonable, and its original decision was reinstated.

In this costs endorsement following a summary judgment ruling on liability in a software licence and copyright dispute, the plaintiffs sought partial indemnity costs of both the motion and the action to date.

The court held it was premature to award costs of the motion because the action had been bifurcated by the plaintiffs and the defendant had an outstanding monetary offer to settle the entire action, engaging the potential costs consequences of Rule 49.10(2).

The court declined to award action costs at this stage and deferred entitlement to motion costs until after the damages trial.

It nevertheless fixed the plaintiffs' partial indemnity costs of the summary judgment motion at $280,000 inclusive, should those costs later be awarded.

The appellant entered into a contract with the respondent for the storage of vaccines in a temperature-controlled warehouse.

The contract required the appellant to maintain all-risk property insurance.

After the cooling system malfunctioned and destroyed the vaccines, the appellant's insurer brought a subrogated action against the respondent and other contractors involved in the warehouse's operations.

The Court of Appeal upheld the summary judgment dismissing the action, finding that the insurance covenant barred the claim against the respondent (except for a $100,000 negligence carve-out) and that the other contractors were third-party beneficiaries of this protection.

On a summary judgment motion in a software licensing dispute, the court interpreted a licence agreement governing enterprise use of document conversion software.

The court held that the agreement did not impose a one-server-per-licence restriction, but it did restrict use to the AIX platform and to association with IBM's CMOD database.

The moving parties obtained declarations that use outside those limits breached the licence and infringed copyright under the Copyright Act.

Estoppel and limitation defences based on technical support knowledge did not raise a genuine issue requiring a trial on liability.

Damages were directed to a trial rather than a reference.

Following a successful application involving a claim for adverse possession, the court determined the appropriate quantum of costs payable by the respondent.

Although the applicant was entitled to costs, the court found the bill of costs claimed on a partial indemnity basis to be excessive.

The court noted that much of the legal work predated the applicant’s property ownership and would have been incurred regardless of opposition, and that the respondent—who was self‑represented—acted reasonably and did not materially increase the applicant’s costs.

The court also criticized the involvement of numerous legal staff and duplication of work.

Costs were fixed at $10,000 all inclusive.

The appellants challenged a regulatory decision reducing a power generator's proposed revenue requirements for nuclear compensation costs during a forward test period.

The Court of Appeal held that future compensation costs mandated by existing collective agreements were committed costs, not forecast costs that could simply be managed downward.

The Board acted unreasonably by relying on hindsight and current benchmarking information unavailable when the collective agreements were made, and by failing to conduct a prudence review based on what was known or ought to have been known at the time of the commitments.

The matter was remitted to the Board for rehearing in accordance with those principles.

The court dismissed both an application to set aside and an appeal from an accounting arbitration under an asset purchase agreement.

The moving party argued the arbitrator exceeded jurisdiction and made manifest errors by quantifying deferred-revenue adjustments without independent expert evidence.

The court held the arbitration agreement and engagement letter authorized determination and quantification of disputed deferred-revenue items, and that the award reflected a factually grounded analysis of known costs and contingency risk allocations.

The high threshold for court intervention was not met.

The appellants, including Ontario Power Generation Inc. (OPG) and two unions, appealed a decision of the Ontario Energy Board (OEB) that disallowed $145 million of OPG's forecast nuclear compensation costs for the 2011-2012 test period.

The appellants argued the OEB was required to presume the collective agreements were prudent when entered into and could not use hindsight to assess their reasonableness.

The Divisional Court dismissed the appeal, holding that the OEB was not restricted to a retrospective prudence review for forecast costs and was entitled to consider current market comparators to ensure rates were just and reasonable for consumers.

The court also found the OEB's reasons were adequate and its decision did not violate section 2(d) of the Charter.

The appellant brought a class action against the City of Toronto and the TTC for business losses resulting from the construction of the St. Clair transit project.

The motion judge dismissed the action, finding the claims were in substance for 'injurious affection' and fell within the exclusive jurisdiction of the Ontario Municipal Board.

The Court of Appeal upheld this decision, confirming that the Class Proceedings Act is procedural and does not confer substantive jurisdiction.

The Court also struck the appellant's remaining claim for abuse of public authority for failing to disclose a reasonable cause of action.

The appellant electricity distributor appealed a Divisional Court decision upholding the Ontario Energy Board's refusal to allow recovery of $14.9 million from a rate deferral account.

The appellant argued that a 2002 interim order had approved its revenue requirement and rate deferral plan, and that subsequent legislation (Bill 210) had deemed the interim order final.

The Court of Appeal dismissed the appeal, finding it reasonable for the Board to conclude that the interim order did not approve the revenue requirement or deferral plan, as no prudency review had occurred.

The Court noted the appellant could still apply to the Board for a proper prudency review.

The Ontario Energy Board (OEB) imposed a condition on Toronto Hydro-Electric System Limited (THESL) requiring approval from a majority of its independent directors before declaring future dividends to its affiliates, due to concerns over large dividend payouts amidst aging infrastructure.

The Divisional Court struck down this condition, finding the OEB exceeded its jurisdiction.

The OEB appealed.

The Court of Appeal allowed the appeal, holding that the OEB's broad rate-setting powers under the Ontario Energy Board Act included the jurisdiction to impose such a condition to protect ratepayers.

The Court found the OEB's decision was reasonable and did not improperly usurp corporate law principles, as it merely added a regulatory check to the directors' discretion.

The appellant appealed a trial judgment that dismissed its claim for a commission and unjust enrichment.

The trial judge found there was no agreement to pay the appellant in the absence of a completed transaction, and the appellant failed to prove unjust enrichment.

The Court of Appeal found no error in the trial judge's findings or conclusions and dismissed the appeal, awarding costs to the respondents.

The appellant, a licensed electricity distributor, appealed a decision of the Ontario Energy Board denying the recovery of approximately $15 million in deferred costs accumulated in a regulatory asset account.

The appellant argued that a 2002 interim rate order implicitly approved the deferral plan and that subsequent legislation freezing rates made the order final, entitling them to recovery.

The Divisional Court dismissed the appeal, finding the Board's decision reasonable.

The Court held that the interim order did not approve the deferral plan and that the Board was justified in requiring a prudency review before allowing the recovery of costs from ratepayers.

Toronto Hydro-Electric System Ltd. appealed a decision of the Ontario Energy Board that required any dividend paid by the utility to its parent company be approved by a majority of its independent directors.

The Divisional Court allowed the appeal, finding that the Board lacked both express and implied jurisdiction under the Ontario Energy Board Act, 1998 to impose restrictions on the corporate process for declaring dividends.

The condition was found to be an unwarranted intrusion into corporate governance and contrary to established corporate law principles.

The respondents, the City of Toronto and the Toronto Transit Commission, brought a motion requesting that Justice Matlow recuse himself from a judicial review panel due to a reasonable apprehension of bias arising from his prior advocacy against a City development project.

Justice Matlow, deciding the recusal issue alone, dismissed the motion, finding no reasonable apprehension of bias and that the respondents had waived their right to object by delaying.

However, the other two panel members, Justices Greer and E. Macdonald, concluded that a reasonable apprehension of bias did exist.

Because they could not order Justice Matlow to recuse himself, they stepped down from the panel to prevent a breach of natural justice, resulting in the panel being struck and the application ordered to be heard de novo.

The respondents, the City of Toronto and the Toronto Transit Commission, brought a motion for the recusal of Justice Matlow and to strike the panel that had previously granted an application for judicial review.

The moving parties argued that Justice Matlow's prior involvement in contentious issues with the City created a reasonable apprehension of bias.

Justices Greer and E. Macdonald, the other members of the panel, were unaware of the extent of Justice Matlow's involvement prior to the motion.

They concluded that an objective third party would find a reasonable apprehension of bias.

Consequently, they decided to stand down, strike the panel, and declare their previous decision null and void to ensure the matter did not proceed in breach of natural justice.

The applicant sought judicial review of the City of Toronto's decision to proceed with the construction of a dedicated streetcar right-of-way on St. Clair Avenue West, arguing it contravened the Planning Act and the Environmental Assessment Act.

The Divisional Court released a short endorsement granting the application and setting aside the City's decision to proceed with the project, with formal reasons to follow.

The court noted the urgency of the matter to avoid wasted construction costs.