COURT FILE NO.: CV-08-00356801 DATE: 20120130

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ANTHONY GYIMAH

Plaintiff

In person

• and -

TORONTO HYDRO-ELECTRIC SYSTEM LIMITED and TORONTO-HYDRO CORPORATION

Sonja Williams, for the Defendants

Defendants

HEARD: In writing

GRACE J.

REASONS FOR JUDGMENT

[1] The parties’ dispute over amounts charged for electricity supplied to properties at 1 and 7 Victoria Avenue West, Toronto, Ontario (collectively the “properties”) was the subject of a trial with a jury that ended October 31, 2011.

[2] The jury found that Mr. Gyimah was charged more than he owed on both properties. They concluded Mr. Gyimah had suffered damages with respect to one of the properties but not the other. Damages of $24,000 were assessed divided equally between “potential loss of rental income” and “a deficit” Mr. Gyimah “could never reasonably reverse” by reason of the “escalated charges”.[^1]

[3] I endorsed the verdict on the trial record.[^2] However, I did not grant judgment. Toronto Hydro took the position the action must be dismissed because Mr. Gyimah is “not entitled to judgment”. It relied on an exclusion of liability clause in Toronto Hydro’s Conditions of Service.[^3]

[4] No written materials in support of Toronto Hydro’s position had been served on Mr. Gyimah or filed with the Court.

[5] The parties were asked to provide written submissions concerning the issue by specified dates. Toronto Hydro’s submissions were received in a timely fashion. Mr. Gyimah’s submissions were received before the expiration of a period of indulgence extended to him.

[6] Toronto Hydro does not ask me to interfere with the factual findings made by the jury. They are unchallenged.

[7] However, Toronto Hydro argues that liability cannot be imposed as a matter of law. It maintains that exculpatory language appearing in Toronto Hydro’s Conditions of Service preclude recovery.[^4]

A. The Exculpatory Language

[8] Understanding Toronto Hydro’s argument involves consideration of the regulatory scheme in force in Ontario. The relationship between consumers and distributors of electricity is addressed by the Electricity Act, 1998[^5] and the Ontario Energy Board Act.[^6]

[9] The last mentioned statute gives the Ontario Energy Board (the “OEB”) the power to issue codes. One of those is the Distribution System Code.[^7]

[10] The Distribution System Code is given legislative force.[^8] It requires distributors[^9] to prepare and file Conditions of Service.[^10] They must include various provisions including “rights and obligations a consumer…has with respect to the distributor” and “the distributor’s liability limitations in accordance with this Code.”[^11]

[11] Toronto Hydro has complied with those requirements. With one notable exception addressed later in these reasons, its liability limitation provision is almost[^12] identical to the one appearing in the Distribution System Code. Toronto Hydro’s provision is set forth in article 1.6 of its Conditions of Service. It reads:

Toronto Hydro[^13] shall only be liable to a Customer and a Customer shall only be liable to Toronto Hydro for any damages that arise directly out of the willful misconduct or negligence:

· of Toronto Hydro in providing distribution services to the Customer;

· of the Customer in being connected to Toronto Hydro’s distribution system;

· of Toronto Hydro or Customer in meeting their respective obligations under this (sic) Conditions,[^14] their licences and any other applicable law.

Notwithstanding the above,[^15] neither Toronto Hydro nor the Customer shall be liable under any circumstances whatsoever for any loss of profits or revenues, business interruption losses, loss of contract or loss of goodwill, or for any indirect, consequential, incidental or special damages, including but not limited to punitive or exemplary damages, whether any of the said liability, loss or damages arise in contract, tort or otherwise.

[12] Toronto Hydro’s Conditions of Service are publically available as the Distribution System Code requires.[^16] The Conditions of Service also provide:

The acceptance of supply of electricity…from Toronto Hydro constitutes the acceptance of a binding contract with Toronto Hydro which includes this (sic) Conditions and all terms thereunder.[^17]

B. The Legal Analysis

[13] Three questions must be asked and answered:

a) First, is the issue one which the court can and should consider at this stage of the proceeding?

b) Second, as a matter of interpretation, do the claims underlying the jury’s verdict fall within the exclusion clause, in whole or in part, having regard to its terms, purpose and commercial context?[^18]

c) Third, if so, is there any legal barrier to the court’s enforcement of the exclusion clause in the circumstances of this case?[^19]

i. The Issue – the pleadings and timing

[14] The argument made after trial follows the legislative scheme.

[15] The OEB created the Distribution System Code as authorized by the Ontario Energy Board Act.[^20] The Distribution System Code has the same effect as a statute.[^21]

[16] It contains the exclusion clause recited in the statement of defence and counterclaim. The Distribution System Code requires distributors such as Toronto Hydro to create and publish Conditions of Service containing “consistent” language.[^22] Toronto Hydro fulfilled the requirements. Article 1.6 of the Conditions of Service limits liability by circumstance and nature.

[17] The argument Toronto Hydro now makes is not the same as its pleading contemplated. In paragraph 22 of the statement of defence and counterclaim, Toronto Hydro relied on exculpatory language appearing in articles 2.2.1 and 2.2.2 of the Distribution System Code. In the next paragraph Toronto Hydro addressed the issue of damages. Broad and generic language was used. Toronto Hydro maintained that any loss sustained by Mr. Gyimah was “not recoverable at law”. No express connection to the Distribution System Code was drawn.

[18] Toronto Hydro no longer relies on the clauses mentioned in its pleading. It now relies on a different document (the Conditions of Service) prepared by a different legal entity (Toronto Hydro instead of the OEB). Toronto Hydro’s Conditions of Service received brief mention in the statement of defence and counterclaim. However, there was no reference to the important provision at the center of this aspect of the dispute.

[19] Clearly Toronto Hydro’s pleading was deficient. Material facts (references to the correct document, correct author and correct clause) were omitted. Since the exculpatory language in the two documents is almost identical does that matter?

[20] For these reasons it does:

a) First, Toronto Hydro did not comply with important rules of pleading.[^23] Toronto Hydro maintains the exculpatory language is a complete defence to Mr. Gyimah’s claim. Given the significance of the clause, it was imperative that Mr. Gyimah be advised clearly and unequivocally of “any matter” on which Toronto Hydro relied to “defeat” his claim.[^24] Since Toronto Hydro takes the position that Mr. Gyimah’s claim must fail in law, it was imperative that Toronto Hydro plead “the material facts” supporting its position;[^25]

b) Second, those requirements are not simply technical rules which should be relaxed or ignored.[^26] As mentioned later, a person otherwise affected by an exclusion clause may seek to avoid its application based on overriding public policy considerations. An evidentiary basis for the argument must exist. In order to address the issue it was imperative that Mr. Gyimah know which exclusion clause was relied upon, in what document it appeared and who it was intended to benefit. Mr. Gyimah’s approach may well have changed had he known that the proponent of the language was not the OEB but Toronto Hydro itself. The issue was raised so late in the proceedings that it took Mr. Gyimah by surprise. An amendment could have been sought and should have been sought by Toronto Hydro before trial.[^27] It was not.

[21] It is not in the interest of justice to now allow Toronto Hydro to maintain a defence it did not adequately plead. A motion to amend the statement of defence and counterclaim was never brought. However, even if sought, leave would have been refused because an amendment at this stage is simply too late. The trial is complete. The evidentiary record cannot be supplemented. Had Mr. Gyimah known that Toronto Hydro intended to rely on article 1.6 of its Conditions of Service, he may have called other evidence to address the final stage of the legal analysis outlined below. He was deprived of that opportunity. Any amendment to the statement of defence and counterclaim would result in prejudice to Mr. Gyimah that cannot be compensated by costs.[^28]

[22] If I am wrong, can Toronto Hydro raise the issue now that the jury has returned its verdict? The question of whether Mr. Gyimah was entitled to recover damages in light of the Conditions of Service should also have been addressed in advance of trial either in conjunction with or after a motion to amend Toronto Hydro’s pleading.[^29]

[23] It appears Toronto Hydro believed the jury would be asked to determine whether Mr. Gyimah was entitled to recover damages in light of the Conditions of Service.[^30] It was mistaken.

[24] I concluded the issue involved a question of law and was not an appropriate one for the jury to consider.

[25] Rule 52.08 (1) provides in part:

Where the jury,

(a) disagrees;

(b) makes no finding on which judgment can be granted; or

(c) answers some but not all of the questions directed to it or gives conflicting answers…

the trial judge may direct that the action be retried with another jury…but where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the claim. [Italics added]

[26] It seems well established that I am duty bound to determine whether the facts as found by the jury are sufficient in law to support the judgment requested even though none of the circumstances set forth in subrules 52.08 (1) (a), (b) or (c) have occurred.[^31]

[27] Consequently, the exclusion clause issue warrants consideration even though not pursued until after the jury’s verdict was returned if it was one Toronto Hydro could pursue based on the statement of defence and counterclaim filed.

ii. The interpretation of the exclusion clause

[28] An exclusion clause is to be given its natural and true construction[^32] keeping in mind its purpose and the statutory and commercial context[^33]. However, where contained in a preprinted form, ambiguous language should be interpreted in the manner which is least favourable to the party responsible for its drafting. That principle - contra proferentem - is not to be applied where the language used is clear and unambiguous.[^34]

[29] As noted, the Distribution System Code sets forth the form of exclusion clause the Toronto Hydro’s Conditions of Service must emulate. OEB is given authority to develop the Distribution System Code by the Ontario Energy Board Act.[^35]

[30] That statute directs the OEB to have in mind various objectives in fulfilling its mandate including: protecting the interests of consumers with respect to prices and the adequacy, reliability and quality of electricity service, promoting economic efficiency and cost effectiveness in the distribution of electricity and facilitating the maintenance of a financially viable electricity industry.[^36]

[31] In regulating Ontario’s electricity industry, the OEB is given the task of balancing competing interests including those of consumers and distributors. Rules governing their dealings are a product of that exercise. Standard and essential terms are not negotiated but mandated.[^37] Rights are given, corresponding obligations are created.

[32] In this case, the jury found that Toronto Hydro had charged Mr. Gyimah more than was owed. In its written submissions Toronto Hydro seemed to acknowledge that one of the events resulting in liability under article 1.6 of its Conditions of Service has occurred.[^38] However, it argues the jury has awarded Mr. Gyimah a remedy that is barred by the exculpatory language.

[33] Mr. Gyimah did not seek recovery of any overpayment. Such an amount would have been payable to Mr. Gyimah either by way of a credit to his account with Toronto Hydro or by way of cheque in accordance with the Retail Settlement Code the OEB has developed.[^39]

[34] Instead, Mr. Gyimah sought recovery of income allegedly lost when the supply of electricity was discontinued based on inflated and unpaid bills.[^40]

[35] The jury accepted that Mr. Gyimah had lost rental revenue he had been receiving from 1 Victoria Avenue West when Toronto Hydro disconnected service ostensibly in accordance with the Electricity Act, 1998.[^41] While it is not clear to me what the jury meant when it awarded a further $12,000 on account of “a deficit that [Mr. Gyimah] could never reasonably reverse”, the limited evidence introduced at trial with respect to damages related solely to rental income.

[36] Article 1.6 provides that Toronto Hydro will not “be liable under any circumstances” for “loss of profits or revenues, business interruption losses, loss of contract” or “consequential, incidental or special damages”.

[37] Rent is a form of “revenue”. Mr. Gyimah’s business of renting 1 Victoria West was interrupted by the discontinuance of the supply of electricity. Mr. Gyimah lost the benefit of any lease agreement – or contract - to which he was a party. Any other damages awarded by the jury were either part of the revenue lost or “incidental” to it.[^42] If article 1.6 was unqualified, the claims of Mr. Gyimah would be covered by the plain wording of the exclusion clause.

[38] However, article 1.6 must “not be read in isolation” but considered in conjunction with the entire agreement and its context.[^43]

[39] As noted, each distributor must “document its Conditions of Service”.[^44] The Conditions of Service must be “consistent” with the Distribution Service Code “and all other applicable codes and legislation”.[^45]

[40] As a general rule the exclusion clause has universal application in Ontario. It applies to all consumers[^46] and all distributors of electricity. However, article 2.4.1 of the Distribution System Code provides:

…Subject to this Code and other applicable laws, a distributor shall comply with its Conditions of Service but may waive a provision of its Conditions of Service in favour of a customer or potential customer.

[41] In this case, article 1.6 appears directly below the following italicized paragraph:

This section should outline the rights and obligations a Customer or embedded generator has with respect to the distributor that are not covered elsewhere in this document.

[42] I do not know why the words appear. I did not see them in the Distribution System Code. However, they are present. The use of the word “should” suggests article 1.6 will often but not always apply to a customer. The presence of this additional and introductory clause appears to qualify the mandatory language that appears below it. The language leaves me uncertain whether article 1.6 is intended to apply to all or particular categories of customer. I cannot tell from the document itself whether a consumer such as Mr. Gyimah is covered by the provision or not.[^47]

[43] The language used is not clear and unambiguous. In my view the contra proferentem rule should be applied to article 1.6 of the Conditions of Service. In any event, a standard form provision which limits rights should receive a restrictive interpretation.[^48] In the circumstances, the clause must be interpreted against Toronto Hydro and in favour of Mr. Gyimah.[^49] I am not satisfied article 1.6 applies to the case at hand.

iii. Is there any legal barrier to the court’s enforcement of the exclusion clause in the circumstances of this case?

[44] I will complete the analysis in case my interpretation of the clause is also found to be in error.

[45] In Tercon Contractors Ltd. v. British Columbia (Minister of Transportation & Highways)[^50] Binnie J. succinctly outlined the balance of the analysis the court is to undertake if an exclusion clause is adequately phrased:

If the exclusion clause applies, the second issue is whether the exclusion clause was unconscionable at the time the contract was made, “as might arise from the situations of unequal bargaining power between the parties”…This second issue has to do with contract formation, not breach.

If the exclusion clause is held to be valid and applicable, the Court may undertake a third enquiry, namely whether the Court should nevertheless refuse to enforce the valid exclusion clause because of the existence of an overriding public policy, proof of which lies on the party seeking to avoid enforcement of the clause, that outweighs the very strong public interest in the enforcement of contracts.

[46] Three elements must be satisfied to invoke the doctrine of unconscionability: pronounced inequality of bargaining power; a substantially improvident or unfair bargain and a defendant knowingly taking advantage of a vulnerable plaintiff.[^51] The reality of this case is this: the exculpatory clause is not contained in an agreement negotiated by the distributor and consumer. As already noted, the clause is one of many developed by the body charged with the responsibility for ensuring that electricity is made available to all who desire to use it on terms which are reasonable from the perspective of both customer and distributor.

[47] There is nothing in the legislation or in the Distribution System Code which suggests that the rights of consumers were ignored or that the limitation of liability – which applies not only against but also in favour of consumers – is substantially improvident or unfair. It is legislatively mandated that it apply to all of the customers it serves.[^52] In Toronto Hydro Corp. v. Schmidt[^53] Karakatsanis J., then of this Court, wrote:

As a matter of policy, it is necessary to provide a utility such as Toronto Hydro with these implied terms because the provision of electricity is considered a vital service and is heavily regulated.

[48] Even if other exceptions could or should be made, Mr. Gyimah is no more vulnerable than any other consumer of at least average intelligence and sophistication. It should not be forgotten that Mr. Gyimah conducted a jury trial without the assistance of a lawyer and persuaded the jury to return a verdict that was more favourable than not. A narrow construction of a clause limiting legal rights is appropriate. A finding that the clause is “unconscionable” is not.

[49] That takes me to the final aspect of the analysis. Other societal values may cause the court to decline to enforce an exclusion clause.[^54] The burden of establishing the existence of an overriding public policy consideration that justifies such a result lies on the person bound by it.

[50] The question of whether Toronto Hydro participated in conduct which was contemptuous of its contractual or statutory obligations or otherwise acted improperly secure in the knowledge that it was insulated from liability was not addressed during the trial. That flowed from the fact the exclusion clause was raised almost as an afterthought. I simply cannot say whether Mr. Gyimah could have met the onus had the issue been raised in an appropriate and timely manner.

C. Conclusion

[51] In the circumstances, I conclude that judgment should be granted in accordance with the jury’s verdict. The exclusion clause relied on at trial was not mentioned in Toronto Hydro’s pleading. No amendment was sought and one cannot now be granted.

[52] Even if it was otherwise, Toronto Hydro has not convinced me the exclusion clause precludes recovery.

[53] Mr. Gyimah is entitled to judgment against Toronto Hydro-Electric System Limited in the principal amount of $24,000 together with interest from October 10, 2007[^55] onward at the annual rate of 4.8 per cent in accordance with s. 128 (1) of the Courts of Justice Act.[^56]

[54] Judgment will also issue in favour of Toronto Hydro-Electric System Limited on the counterclaim in the principal amount of $5,100 in accordance with the jury verdict. That represents the unpaid amount for electricity supplied to the Properties. It should be self evident that a customer has an obligation to pay for electricity supplied to the customer’s property.[^57] Prejudgment interest shall also be paid at the annual rate of 4.8 per cent as follows: on the sum of $3,900 from October 11, 2007 and on the sum of $1,200 from June 19, 2008 onward.

[55] Absent agreement, written submissions on costs may be provided to me through Judges’ Administration by February 24, 2012 in the case of Mr. Gyimah and by March 15, 2012 in the case of Toronto Hydro. Those submissions are not to exceed four typed pages exclusive of any offer(s) to settle, bill of costs or authority relied upon.

GRACE J.

Released: January 30, 2012

COURT FILE NO.: CV-08-00356801 DATE: 20120130

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ANTHONY GYIMAH

Plaintiff

• and –

TORONTO HYDRO-ELECTRIC SYSTEM LIMITED and TORONTO-HYDRO CORPORATION

Defendant

REASONS FOR JUDGMENT

GRACE J.

Released: January 30, 2012

[^1]: The jury also concluded that Mr. Gyimah still owes Toronto Hydro $5,100 on account of charges relating to 1 ($3,900) and 7 ($1,200) Victoria Avenue West.

[^2]: As rule 52.09 requires.

[^3]: Toronto Hydro relies on rule 52.08 (1). It should be noted that the exculpatory language referenced in paragraph 22 of Toronto Hydro’s statement of defence and counterclaim is taken from the Distribution System Code. That language is very similar but not identical to the language appearing in the Conditions of Service. For a recent decision applying a different portion of rule 52.08 (1) see Salter v. Hirst, 2011 ONCA 609.

[^4]: In paragraph 22 of their statement of defence and counterclaim the defendants relied on exculpatory language appearing in article 2.2.1 and 2.2.2 of the Distribution System Code. In paragraph 23 they alleged that any loss sustained by Mr. Gyimah was “not recoverable at law”. The Statement of Defence and Counterclaim did not refer to section 1.6 of Toronto Hydro’s Conditions of Service which is the foundation for the argument Toronto Hydro now maintains.

[^5]: S.O. 1998, c. 15, Schedule A,

[^6]: S.O. 1998, c. 15, Schedule B.

[^7]: Ibid. ss. 70.1 and 70.3.

[^8]: Graywood Investments Ltd. v. Ontario (Energy Board) (2006), 80 O.R. (3d) 492 (C.A.) at para. 25; Toronto Hydro Corp. v. Schmidt, 2008 CarswellOnt. 1209 (S.C.J.) at para. 10.

[^9]: Toronto Hydro is a distributor.

[^10]: See articles 2.4.1 – 2.4.5.

[^11]: These excerpts are drawn from article 2.4.6.

[^12]: Differences are mentioned below.

[^13]: The Distribution System Code refers generically to a distributor.

[^14]: Article 2.2.1 of the Distribution System Code refers to “this Code”.

[^15]: Article 2.2.1 of the Distribution System Code prefaces this paragraph with the words “Despite section 2.2.1”. Aside from the changes noted the language of Article 2.2.1 of the Distribution System Code and 1.6 of Toronto Hydro’s Conditions of Service is the same.

[^16]: That requirement is set forth in article 2.4.2. The Conditions of Service are posted on Toronto Hydro’s website.

[^17]: That language is set forth in the preface and in article 2.1.7.2.

[^18]: Tercon Contractors Ltd. v. British Columbia (Minister of Transportation & Highways, 2010 SCC 4, [2010] 1 S.C.R. 69 at paras. 65-66.

[^19]: Ibid. at paras. 62 and 96. While writing in dissent, the analytical approach Binnie J. advocated was endorsed by the majority.

[^20]: See s. 70.1 of that statute.

[^21]: Toronto Hydro Corporation v. Schmidt, 2009 CarswellOnt 1209 (Div. Ct.) at para. 10 citing, among other cases, Graywood Investments Ltd. v. Ontario (Energy Board) (2006), 80 O.R. (3d) 492 (C.A.) at para. 25.

[^22]: See articles 2.4.1, 2.4.2 and 2.4.6 of the Distribution System Code. Subject to that overriding principle, some deviations from the template are permitted but the extent and manner of making those changes is also regulated: see articles 2.4.7 and 2.4.8.

[^23]: I am referring to rules 25.06 (1), (2) and 25.07(4) of the Rules of Civil Procedure (“Rules”).

[^24]: Rule 25.07 (3) of the Rules.

[^25]: Rule 25.06 (2) of the Rules.

[^26]: I have not forgotten about the existence of rule 2.01.

[^27]: It should be noted that Toronto Hydro did not seek leave to amend its pleading before, during or after the trial.

[^28]: In making that comment I have had regard to rules 2.01 and 26.01.

[^29]: Toronto Hydro could have brought a motion under rule 21.01 (1) (a) or rule 20.

[^30]: Toronto Hydro proposed that the jury be asked whether “the Plaintiff Is entitled to recover damages for loss of profits or revenues, or loss of contract pursuant to Toronto Hydro-Electric System Limited’s Conditions of Service?”

[^31]: Rule 52.08 of the Rules of Civil Procedure; Canadian National Railways v. Lancia, [1949] S.C.R. 177 at 183; Schopp v. Ozirny (1993), 9 C.P.C. (3rd) 212 (Sask. C.A.) at 221; LeBlanc v. Penticton (City) (1981), 20 C.P.C. 226 (B.C.C.A.) at 231

[^32]: Syncrude Canada Ltd. v. Hunter Engineering Co., [1989] 1 S.C.R. 426 at 509

[^33]: Tercon Contractors Ltd. v. British Columbia (Minister of Transportation & Highways, supra note 19 at paras. 66 and 72.

[^34]: Ibid. at paras. 72-73.

[^35]: See s. 70.1 of that statute.

[^36]: Ontario Energy Board Act, supra note 7, s. 1(1).

[^37]: Article 2.4.6 of the Distribution System Code requires that Conditions of Service be consistent with its terms. Subject to that overriding principle, some deviations from the template are permitted but the extent and manner of making those changes is also regulated: see articles 2.4.7 and 2.4.8.

[^38]: I say that because Toronto Hydro’s submissions are based on the language which limits available remedies. I should note that the OEB also enacted the Retail Settlement Code. It deals with billing errors and requires that amounts over billed be credited to the customer’s account or repaid in full by cheque.

[^39]: The issue of billing errors is addressed in article 7.7. The consequence of overbilling is addressed in articles 7.7.1 and 7.7.2.

[^40]: Mr. Gyimah introduced some evidence with respect to mortgage payments he made. He alleged he was deprived of revenue which would have been used to service them.

[^41]: The right to shut of the distribution of electricity is set forth in s. 31 of that statute.

[^42]: See, too, Allarco Entertainment 2008 Inc. v. Rogers Communications Inc., 2011 ONSC 5623 (S.C.J.) at paras. 158, 173, 174;

[^43]: Tercon Contractors Ltd. v. British Columbia (Minister of Transportation & Highways), supra note 19 at para. 64.

[^44]: The excerpt is drawn from article 2.4.1 of the Distribution System Code.

[^45]: The excerpt is drawn from article 2.4.6 of the Distribution System Code.

[^46]: “Consumer” is defined in the Distribution System Code as “a person who uses, for the person’s own consumption, electricity that the person did not generate”.

[^47]: Lynda Donos, a customer service adviser for Toronto Hydro testified. She identified the Conditions of Service and read certain provisions within them. However, Ms Donos’ role at Toronto Hydro relates to billings and recovery.

[^48]: Shelanu Inc. v. Print Three Franchising Corp. (2003), 64 O.R. (3d) 533 (C.A.) at para. 32.

[^49]: Hillis Oil & Sales Ltd. v. Wynn’s Canada Ltd., [1986] 1 S.C.R. 57 at paras. 68-89; Tercon Contractors Ltd. v. British Columbia (Minister of Transportation & Highways), supra note 19 at para. 79.

[^50]: Supra, note 19 at paras. 122-123.

[^51]: Titus v. William F. Cooke Enterprises Ltd. (2007), 2007 ONCA 573, 284 D.L.R. (4th) 734 (Ont. C.A.).

[^52]: That statement is subject to the provision with respect to waiver or another statutory exception. For example, section 31 (5) of the Electricity Act, 1998 obligates a distributor to “compensate any person who suffered a loss as a result of the shut-off of electricity” if it occurred during the period from November 12, 2002 to March 31, 2003 or during any other period prescribed by regulation.[52] In this case disconnection did not occur during the statutory period and no regulation was cited which might have any application

[^53]: 2009 CarswellOnt 1209 (S.C.J.) at para. 14.

[^54]: As noted earlier, additional evidence may have been led had Toronto Hydro given Mr. Gyimah timely notice of the argument addressed in these reasons.

[^55]: The cause of action arose on the day the supply of electricity ceased.

[^56]: The action was commenced June 12, 2008.

[^57]: That obligation is set forth in article 2.1.7.6 of the Conditions of Service. See, too, Toronto Hydro Corp. v. Schmidt, supra note 30.