Sandra Lyn Barton

This decision concerns two related shareholder applications under section 241 of the Canada Business Corporations Act involving SpassMed Inc. and its affiliates.

The court reviews the procedural history, including consolidation of the applications, amendments to the relief sought, and the appointment of an interim monitor.

Due to significant disputes of fact and credibility, the court orders that the consolidated application be converted to an action to allow for a full trial process.

The Independent Electricity System Operator (IESO) appealed a lower court's interpretation of its standard-form "feed-in-tariff" (FIT 1) contracts with solar energy suppliers.

The dispute centered on whether suppliers breached contracts by "optimizing" their facilities (installing more efficient solar panels) without IESO's consent, specifically regarding changes to DC energy capacity and DC/AC ratio.

The application judge found that consent was only required for features outlined in the application or contract cover page, which did not include DC capacity or DC/AC ratio.

The Court of Appeal upheld this interpretation, dismissing IESO's appeal, finding no reversible error in the application judge's reasoning regarding contract interpretation or the impact of optimizations on metering plans.

This is a costs endorsement following a decision where solar energy suppliers (the "Suppliers") successfully argued that their "Optimizations" did not constitute "Contract Facility Amendments" under their Feed-in-Tariff (FIT) contracts with the Independent Electricity System Operator (IESO).

The Suppliers sought approximately $2 million in partial indemnity costs, while the IESO proposed around $817,000.

The court, applying Rule 57 factors, found the issues complex and high-stakes for both parties.

Despite the Suppliers' higher learning curve and efficient litigation, the court deemed their claimed hours disproportionate.

The court fixed the aggregate partial indemnity legal fees at $1 million, plus disbursements of $270,000 (less specific deductions), finding this amount fair, reasonable, and proportionate given all circumstances.

The Independent Electricity System Operator (IESO) sought to prevent solar energy suppliers from increasing their DC capacity, arguing it constituted a 'Contract Facility Amendment' requiring IESO consent under Feed-in-Tariff (FIT) 1.3 and 1.5 contracts.

The suppliers argued that such 'Optimizations' did not require consent as they did not alter features explicitly outlined in the contract application or cover page, and did not exceed AC capacity limits.

The court found that the Optimizations were not Contract Facility Amendments requiring IESO notice and consent, as DC capacity was not an 'outlined' feature in the contracts.

The suppliers' applications for declarations were granted, and the IESO's counter-applications were dismissed.

The Canadian Civil Liberties Association (CCLA) challenged the constitutionality of Ontario's Federal Carbon Tax Transparency Act (FCTTA) and its accompanying regulation, O. Reg. 275/19, which mandated gasoline retailers to display a specific sticker on gas pumps.

The CCLA argued this requirement constituted compelled speech, violating freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms.

The court granted the CCLA public interest standing, finding that the legislation's true purpose was partisan advocacy rather than neutral information sharing.

Consequently, the court held that the FCTTA and O. Reg. 275/19 infringed section 2(b) of the Charter and could not be justified under section 1, declaring them to be of no force or effect.

The plaintiffs sought to introduce participant expert evidence from a lawyer, David Murray, regarding the standard of care applicable to the defendant lawyer in a solicitor's negligence claim.

The court, applying the Westerhof and Mohan/White Burgess criteria, ruled that while Mr. Murray was qualified, his proposed opinion on the objective standard of care was not formed as part of his ordinary participation in the events at issue and thus did not qualify as participant expert evidence under Rule 53.03.

The court declined to permit the opinion evidence.

The appellants, a geneticist and his corporation, appealed a trial judgment dismissing their defamation action against the respondents for publishing an article in New Scientist magazine criticizing their prenatal paternity test as unreliable.

The trial judge found the respondents established the defences of justification, fair comment, responsible communication, and qualified privilege.

On appeal, the appellants abandoned their substantive grounds and raised a new allegation of reasonable apprehension of bias based on the trial judge's conduct and reasons.

The Court of Appeal dismissed the appeal, finding the bias allegation was raised tactically and lacked merit.

The respondents moved under section 7(5) of the Courts of Justice Act to set aside or vary an order of the motion judge dismissing their motion for security for costs under Rule 61.06 of the Rules of Civil Procedure.

The appellants sought security for costs of both the appeal and the trial costs already awarded.

The Court of Appeal upheld the motion judge's decision, finding no error in law or principle.

The court clarified that when considering security for costs of an appeal under Rule 61.06(1)(b) in conjunction with Rule 56.01(1)(d), the reference to "costs of the defendant or respondent" must be read as "costs of the respondent in the appeal," not the costs awarded at trial.

The court found the appellants had sufficient assets in Ontario to pay the estimated appeal costs of $30,000 and that ordering security would undermine the appellants' right to appeal.

The appellants brought a defamation action against the respondents regarding an article in New Scientist Magazine questioning the reliability of a blood paternity test.

After a 13-day hybrid trial, the trial judge dismissed the action and awarded costs of $1,478,766.64 to the respondents.

The appellants appealed.

The respondents moved for security for costs on appeal, arguing the appeal was frivolous and vexatious and that the appellants had insufficient assets.

The appellants also sought to lift the automatic stay of the trial costs award.

The motion judge dismissed the respondents' motion, finding the appeal was not vexatious, the appellants had sufficient assets to pay appeal costs, and there was no financial hardship to the respondents warranting lifting the stay.

The appellant appealed an order of the Superior Court of Justice dismissing her action under Rule 2.1.01.

The motion judge found that the action met the test for dismissal on its face.

The appellant argued that the respondent, having been noted in default, was precluded from taking further steps without leave.

The Court of Appeal upheld the dismissal, finding that even if leave was required, it would have been granted as this was a clear case for application of Rule 2.1.01.

The appeal was dismissed with no costs.

The Building Industry and Land Development Association (BILD) brought an application challenging the validity of several by-laws enacted by the Town of Oakville concerning cultural heritage properties.

The application was heard concurrently with a similar application by Clublink Corporation ULC.

The court addressed BILD's standing to bring the application, considering both private and public interest standing.

The court found that BILD lacked private interest standing as it was not directly impacted by the by-laws, and its primary identified member (Clublink's parent company) was already challenging the same by-laws.

The court also denied public interest standing, concluding that BILD's challenge was not a reasonable and effective means of bringing the matter before the court, given that the Clublink application already provided a suitable context for adversarial determination with a proper evidentiary record.

Consequently, BILD's application was dismissed.

The Town of Oakville designated the Glen Abbey Golf Course as a heritage site under the Ontario Heritage Act (OHA).

Clublink, the owner, sought to demolish and redevelop the property, applying under s. 34(1) of the OHA.

The Town refused to process this application, arguing that the golf course features were not "buildings or structures" within the meaning of s. 34, and that Clublink should instead apply under s. 33, which provides for a non-binding appeal route.

The court was asked to determine the correct procedural route for Clublink's proposed changes.

The court found that the Glen Abbey Golf Course, including its engineered features such as tees, greens, sand traps, and irrigation systems, constitutes "structures" for the purposes of s. 34 of the OHA.

Consequently, Clublink has the right to make an application to the Town under s. 34(1), and the Town was ordered to process Clublink’s application.

Clublink sought leave to admit a supplementary affidavit after cross-examinations concluded, arguing it supported their claim of bad faith in Oakville's by-law enactment.

Oakville moved to strike the affidavit, arguing it was late-filed and irrelevant.

The court applied the four-part test for admitting late-filed evidence under Rule 39.02(2), finding the evidence either irrelevant or available prior to cross-examinations.

Clublink's motion for leave was dismissed, and Oakville's motion to strike was granted, rendering the supplementary affidavit inadmissible.

The appellant appealed a Superior Court decision dismissing an application for judicial review of a Crown decision to stay a private prosecution.

The appellant alleged that the Crown's decision to stay the prosecution constituted an abuse of process, arguing that the decision was not evidence-based and that failing to prosecute what the appellant characterized as indisputable perjury harmed the integrity of the administration of justice.

The Court of Appeal dismissed the appeal, holding that abuse of process is not a tool for assessing the quality or reasonableness of prosecutorial decisions, but rather addresses egregious Crown conduct that seriously undermines the fairness of proceedings or the integrity of the administration of justice.

The court found no foundation for an abuse of process finding.

Bombardier Transportation Canada Inc. (BTC) sought an interlocutory injunction to prevent Metrolinx (MTX) from terminating a $770 million contract for light rail vehicles (LRVs) due to alleged material default, pending the completion of a mandatory dispute resolution process.

BTC also sought to remove the Engineer, Jeffrey Rankin, for alleged partiality.

The court found that the contract's dispute resolution process applied to MTX's right to terminate for material default.

Applying the RJR-MacDonald test, the court determined there was a serious issue to be tried, BTC would suffer irreparable harm (loss of reputation, future business, supply chain disruption, and employee expertise), and the balance of convenience favored maintaining the status quo.

The court granted the interlocutory injunction, prohibiting MTX from terminating the contract until the Dispute Review Board (DRB) ruled on the default, and ordered the injunction to be nunc pro tunc to stay cure periods.

The issue of the Engineer's impartiality was referred to the DRB.

The court held a multi-stage pre-trial conference in a defamation action to ensure an efficient and organized trial.

The judge expressed concern about the plaintiffs' ability to prove damages commensurate with the litigation costs and the lengthy delay since publication.

Directions were issued to streamline the trial process, including requiring evidence in chief by affidavit (except for one plaintiff), exchanging expert reports, facilitating expert meetings, and mandating the use of video conferencing for most foreign witnesses to reduce costs and delays.

Following a trial and partial appeal, the only remaining issue in the action was damages for negligent misrepresentation.

The parties exchanged settlement communications in which the defendant offered to pay $80,000 inclusive of interest and costs in exchange for dismissal of the remaining issues and a full and final release.

The plaintiff accepted the offer but the parties later disagreed about the scope of the release wording.

The court held that settlements normally imply the provision of a release, but the terms must reflect the agreement actually reached.

The court found the plaintiff’s proposed release properly reflected the settlement terms and rejected the defendant’s attempt to broaden the release to include additional discoverable claims.