ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-0001-00
DATE: 2012 02 13

BETWEEN:

DURABLA CANADA LTD. Plaintiff
– and –
JUST ENERGY and UNION GAS LIMITED Defendants

Counsel:
R. Steven Baldwin, for the Plaintiff

Adrian C. Lang & Sarah Clarke, for the Defendant, Just Energy
Daniel J. MacKeigan, for the Defendant, Union Gas Limited

HEARD: February 9, 2012

Decision on motion

SCOTT J.

[ 1 ] The defendant, plaintiff by counterclaim (Just Energy) seeks an Order granting summary judgment on the basis that the plaintiff’s claim is statute barred pursuant to the Limitations Act , R.S.O. 1990 c.L.15 (the Old Act) and the Limitations Act , S.O. 2002 c.24 (the New Act).

[ 2 ] Previously, the plaintiff (Durabla) motion was dismissed given the credibility issues associated with its filed materials.

[ 3 ] As well, Just Energy abandoned as premature its summary judgment motion based on the alleged contract between the parties acknowledging that the credibility issues associated with plaintiffs filed materials should properly be dealt with at trial.

[ 4 ] Just Energy submits that notwithstanding that the credibility of Durabla will necessarily have to be matters for the trial judge, the facts that are now before the court even taking Durabla’s position at its highest, support the conclusion that Durabla’s claim is statute barred.

[ 5 ] Although Just Energy’s submissions on this point are persuasive, I believe it necessary for a trial to be held in order that a trier fully appreciates the evidence. At the very least, the parties should conduct discoveries in order to narrow the issues and perhaps allow Durabla an opportunity to refine its story. Clearly, Just Energy, through no fault of its own, should be allowed a further opportunity to have its “limitation period” argument fully tested. Motion adjourned sine die on 10 days notice.

[ 6 ] Costs of this motion to be fixed by the judge who ultimately deals with this issue.

Mr. Justice Robert F. Scott

Released: February 13, 2012

COURT FILE NO.: CV-11-0001-00

DATE: 2012 02 13

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: DURABLA CANADA LTD. Plaintiff -and- JUST ENERGY and UNION GAS LIMITED Defendants DECISION ON MOTION Scott J.

Released: February 13, 2012