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 plaintiff commenced an action regarding a stream of royalty payments from a mine in Guatemala.

The defendants brought motions to strike the claim.

In response, the plaintiff delivered an amended statement of claim.

The defendants moved to declare the amended claim a nullity, arguing it could not be amended without leave in the face of a motion to strike.

The plaintiff brought a cross-motion for leave to amend.

The court held that while leave is required to amend a claim in the face of a motion to strike, the motion for leave should be heard first.

The court granted the plaintiff leave to amend, finding that the proposed amendments were not time-barred, did not withdraw admissions, and were sufficiently particularized.

During a trial, the plaintiffs objected to the defendants questioning a witness about a lost estate intake form that was not listed in the defendants' affidavit of documents.

The court found that the defendants breached Rule 30.03(1)(c) of the Rules of Civil Procedure by failing to list the lost document and explain its absence.

However, the court allowed the questioning to proceed, noting that the document was peripheral to the main issues, mitigating measures were available to the plaintiffs, and the prejudice was minimal.

The court concluded that the failure to disclose was best addressed in costs.

The plaintiffs, acting personally and as Estate Trustees, sued the defendant lawyer and her firm for negligence, breach of fiduciary duty, and defamation.

The claims arose from the lawyer's representation of the deceased in drafting his Will and a mortgage refinancing transaction, as well as letters the lawyer wrote to third parties after her retainer by the Estate was terminated.

The court dismissed the negligence and fiduciary duty claims, finding no expert evidence of a breach of the standard of care and that the lawyer followed the deceased's instructions.

However, the court found the lawyer defamed the plaintiffs in letters sent to succeeding counsel and the Public Guardian and Trustee.

The letters contained false and disparaging statements and were motivated by malice, defeating the defence of qualified privilege.

The plaintiffs were awarded $61,320 in damages for defamation.

The defendants brought a motion to strike the plaintiff's claim for restitution for unjust enrichment and disgorgement of profits, and a motion to bifurcate the trial on liability and damages.

The plaintiff alleged the defendants breached a settlement agreement regarding the market entry date of a generic drug.

The court dismissed the motion to strike, finding the pleaded facts were capable of supporting the restitutionary claims.

The court granted the motion to bifurcate, finding exceptional circumstances justified separating the liability issues from the complex quantification of damages.

The plaintiffs brought a motion for the approval of a settlement in three consolidated class actions against three immigration lawyers for professional negligence.

The class members were Roma refugee claimants from Hungary whose applications failed or did not proceed while represented by the defendants.

The court approved the settlement of $500,000 in damages and $50,000 in costs, finding it fair, reasonable, and in the best interests of the class.

The court also approved class counsel fees of $181,500 and a $2,500 honorarium for the representative plaintiff.

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 plaintiffs brought motions to certify three proposed class actions for settlement purposes against three immigration lawyers.

The plaintiffs alleged professional negligence and breach of fiduciary duty in the defendants' representation of Roma refugee claimants from Hungary.

The court found that the criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were met, noting that compliance is not as strictly required for settlement purposes.

The motions for certification were granted.

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 defendants were successful in defending a defamation action brought by the plaintiffs regarding a scientific controversy.

The defendants sought costs of over $2.2 million, while the plaintiffs proposed approximately $236,000.

The court noted the defendants presented a comprehensive and formidable defence, whereas the plaintiffs' case was not robust and relied on a failed strategy.

Applying the principles for fixing costs, the court balanced the need to indemnify the successful, blameless defendants against the risk of deterring future litigants.

The court fixed the defendants' costs at $1,478,766.64, inclusive of fees, disbursements, and HST.

The applicants, owners of the Glen Abbey Golf Course, brought an application to quash five municipal by-laws enacted by the respondent Town.

The by-laws aimed to preserve the property's use as a golf course following its designation as a cultural heritage property.

The Superior Court of Justice allowed the application and quashed the by-laws, finding them ultra vires the Town's authority under the Municipal Act, as they improperly required the provision of services related to recreation and culture.

The court also found the by-laws were enacted in bad faith to thwart the applicants' redevelopment plans and were void for vagueness.

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 plaintiffs, a genetic testing company and its director, sued the defendants for defamation over a magazine article criticizing their non-invasive prenatal paternity test.

The article alleged the test was dangerous, unreliable, and prone to error.

The court found the article was defamatory but dismissed the action, holding that the defendants successfully established the defences of justification, qualified privilege, fair comment, and responsible communication.

The court found the plaintiffs failed to properly validate their test according to accepted scientific methodology, rendering the test unreliable and the article's claims substantially true.