Court File and Parties
COURT FILE NO.: CV-21-00657840-00CL
DATE: 20210423
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GRASSHOPPER SOLAR CORPORATION, GSC SOLAR FUND I INC., ONE POINT TWENTY ONE GIGAWATTS INC., EGERTON SOLAR POWER LP, MP1 GM SOLAR 1 LP, KL SOLAR PROJECTS LP, HIGHLANDS SOLAR PROJECTS LP, MADAWASKA SOLAR PROJECTS LP, MCNAB SOLAR PROJECTS LP, PB SOLAR PROJECTS LP, RAMARA SOLAR PROJECTS LP, SUDBURY COMMUNITY SOLAR PROJECTS LP, and SUSTAINABLE OTTAWA PROJECTS LP
Plaintiffs and Moving Parties
– and –
INDEPENDENT ELECTRICITY SYSTEM OPERATOR, JANE DOE, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3 and JOHN DOE 4
Defendants and Responding Parties
Counsel:
Sarit Batner, Brandon Kain, Adam Goldenberg and Natalie Kolos, for the Plaintiffs/Moving Parties
Alan Mark and Melanie Ouanounou, for the Defendants/Responding Parties
HEARD: March 29, 2021
Cavanagh J.
REASONS FOR JUDGMENT
Introduction
[1] The Plaintiffs move for an interlocutory injunction prohibiting the Defendant, the Independent Electricity System Operator (the “IESO”), from enforcing the deemed terminations of 34 contracts known as “Feed-In Tariff” contracts (the “FIT Contracts”) in issue in this action, including by discontinuing payments under the FIT Contracts, pending adjudication of the Plaintiffs’ claims.
[2] There was prior litigation between the Plaintiffs (as applicants) and the IESO (as respondent) in which the Plaintiffs challenged the right of the IESO to terminate the FIT Contracts. The litigation followed from notice given by the IESO that it intended to terminate the FIT Contracts if the Plaintiffs were unable to achieve commercial operation for the projects by a specified milestone date. The Plaintiffs were unsuccessful before the application judge, and their appeals to the Court of Appeal were dismissed. An application for leave to appeal to the Supreme Court of Canada was denied.
[3] An Order was made in the prior litigation in July 2019 (the “July Order”), on consent of the parties, by which the Court ordered that the IESO not issue termination notices pending the determination of the applications by the judge of first instance and, if the decision is in favour of the IESO, the Plaintiffs’ appeal. The July Order provides that if an appeal is dismissed, the IESO will be deemed to have issued notices of termination on the earliest dates they could have been delivered, nunc pro tunc. After the Court of Appeal released its decision dismissing the appeals, the Plaintiffs obtained an order from a single judge of the Court of Appeal staying the dismissal order until the application for leave to appeal had been determined.
[4] Upon release of the decision of the Supreme Court of Canada on February 18, 2021 denying leave to appeal, the FIT Contracts were deemed to have been terminated as the result of the July Order.
[5] On February 24, 2021, the Plaintiffs commenced this action. The Plaintiffs claim that the IESO is liable for terminating the FIT Contracts in breach of their duty of good faith. The relief sought includes a declaration that the notices of default and notices of termination deemed to have been delivered are invalid and, therefore, the FIT Contracts are fully operational, and all of the rights and obligations therein remain in force.
[6] The Plaintiffs brought this motion on February 24, 2021 and obtained an interim order that day. This motion for an interlocutory injunction was heard on March 29, 2021.
[7] For the following reasons, the Plaintiffs’ motion is dismissed.
Background Facts
[8] The Plaintiffs fall into two categories. The “Contracting Plaintiffs” are single-purpose entities that built and currently operate the projects under the FIT Contracts with IESO (the “Projects”). The Projects are to supply clean energy to Ontario’s electricity grid for a term of 20 years in exchange for the FIT Payments by the IESO to the Contracting Plaintiffs. The “Non-Contracting Plaintiffs” are Grasshopper Solar Corporation (“Grasshopper”) which provides management and operational services to the Contracting Plaintiffs, and GSC Solar Fund I Inc. (“Solar Fund”), which owns Grasshopper and effectively controls the Contracting Plaintiffs. Grasshopper developed and manages more than 3,000 solar residential projects and 100 commercial projects across Ontario.
[9] Solar Fund funded the Projects construction by borrowing from Eclipsall Funding Limited (“Eclipsall”) under an on-demand “Credit Agreement” entered into in March 2018. Solar Fund uses the FIT Payments to service the Credit Agreement. FIT Payments have flowed uninterrupted since each of the 34 Projects achieved Commercial Operation. The Plaintiffs’ evidence is that without continued FIT Payments, Solar Fund cannot meet its obligations to Eclipsall.
[10] The IESO is a statutory public authority that is responsible for the day-to-day operations of Ontario’s electricity system. Since 2015, it has administered the FIT Program under which the Contracting Plaintiffs and other clean energy suppliers entered into their FIT contracts. The FIT Program was mandated by Ontario’s previous government in 2009 to promote the rapid development of renewable energy.
[11] The FIT Contracts, by their written terms, give the IESO the contractual right to terminate the contracts if the Projects do not achieve commercial operation by a specified date, the Milestone Date for Commercial Operation (the “MCOD”).
[12] When the Contracting Plaintiffs entered into the FIT contracts in 2016, the IESO (then, the Ontario Power Authority) had announced in a 2013 bulletin (the “2013 Bulletin”) the approach that it had developed regarding project delays and potential supplier events of default under FIT contracts. In the 2013 Bulletin, the IESO stated that suppliers who fail to meet their notice to proceed request date and/or their MCOD will be sent a letter advising them that the IESO will not act upon its termination rights arising under the FIT contracts. Suppliers were told in the 2013 Bulletin that it would remain a contractual event of default giving rise to the right to terminate the FIT contract if the commercial operation date has not occurred by 18 months after the MCOD. The 2013 Bulletin stated that the information does not constitute a waiver of any actual or potential default nor does it amend the FIT Contract.
[13] The Plaintiffs’ position is that when they entered into the FIT Contracts, the Contracting Plaintiffs relied on the 2013 Bulletin (and their knowledge of industry practice that the IESO had not terminated a FIT contract after the 2013 Bulletin for failure to achieve commercial operation by the MCOD) to inform their expectation that they would have until 18 months after the MCOD to complete each Project.
[14] The Contracting Plaintiffs received their notices to proceed from the IESO in April and May 2018. Once these notices were issued, the Contracting Plaintiffs began to build the projects and take steps to achieve commercial operation.
[15] On March 29, 2019, the IESO sent letters to the Contracting Plaintiffs and other suppliers advising that except as expressly provided in the FIT Contract, the MCOD will not be extended and failure to attain commercial operation by this date will constitute an event of default “for which the IESO will terminate the FIT Contract pursuant to section 9.2 (a)”. Under the Fit Contracts, the Contracting Plaintiffs had approximately six months to achieve commercial operation before the MCOD.
[16] After receiving the letters, the Plaintiffs commenced two applications on the Commercial List in June and July 2019 (prior to the MCODs arising) seeking declarations that (i) the IESO did not have a contractual right to terminate the FIT Contracts for failure to achieve commercial operation by the MCODs and, alternatively, (ii) the IESO is estopped from terminating the FIT Contracts unless commercial operation is not achieved within 18 months of the MCOD based on the doctrine of estoppel by convention.
[17] On July 24, 2019, pursuant to an agreement between the parties, Hainey J. made an endorsement on consent (defined above as the “July Order”) that pending determination of the applications by a judge of the Commercial List and, if the decision is in favour of the IESO and there is an appeal, the appeal decision, the IESO would not deliver or enforce notices of termination of the FIT Contracts. The July Order specifically provides:
This is without prejudice to the IESO’s right, if successful on appeal, to assert that it can terminate the Applicants’ contracts notwithstanding that the projects have been completed in the meantime.
The IESO will not be issuing Notices of Termination during any of the aforementioned stay periods, but the IESO will be deemed to have issued the Notices of Termination on the earliest date(s) they could have been delivered, nunc pro tunc. The Applicants will not take the position that the IESO has been prejudiced in any way as a result of not delivering Notices of Termination.
[18] Justice Hainey dismissed the applications in an endorsement released on November 15, 2011. Justice Hainey found that the IESO was entitled to terminate the FIT Contracts for failure to achieve commercial operation by the MCOD. The decision of Hainey J. was appealed to the Court of Appeal.
[19] In November 2019, some of the Projects began reaching completion. There was a dispute between the parties as to whether, pending determination of the appeal to the Court of Appeal, the Contracting Plaintiffs were entitled to receive the full FIT Contract price for their electricity delivered as opposed to the lower wholesale electricity price.
[20] By an endorsement dated December 16, 2019 (the “December Order”), Justice Hainey held that as a result of the July Order, the FIT Contracts remained in force at that time and, for this reason, the IESO was required to make payments for electricity at the rates provided for in the FIT Contracts “until any appeal from my decision has been decided”. Justice Hainey included in his endorsement the following:
However, the applicants concede that if they are not successful on their appeal from my decision they will have to pay back to the respondent the difference between the FIT Contracts’ rates and the prevailing market rates. They are prepared to give an undertaking to this effect.
The applicants have offered to provide security of a first charge on their assets which are worth many millions of dollars. The maximum amount of any overpayment by the respondent is approximately $4 million per year. In my view, this is adequate security to protect the respondent if it makes payments to the applicants at the FIT Contract rates and succeeds on the appeal.
For all of these reasons I have concluded that the respondent must comply with its contractual obligations to confirm Commercial Operations and make FIT Payments in respect of projects that have delivered Certificates pursuant to the FIT Contracts. Further, the applicants must repay to the respondent any overpayments made pursuant to the FIT Contracts if they are not successful on their appeal from my decision. They must also provide the respondents with first-ranking security over their assets to cover any such overpayments until the appeal has been decided.
[21] On April 1, 2020, the parties entered into a security agreement (the “Security Agreement”). A Postponement and Subordination Agreement was also entered into between Eclipsall, the IESO and the Contracting Plaintiffs pursuant to which Eclipsall agreed to subordinate the Contracting Plaintiffs’ indebtedness owing to it to the repayment in full of the Contracting Plaintiffs’ indebtedness owed to the IESO (the “Postponement Agreement”).
[22] The Security Agreement provides for payment of the secured indebtedness upon demand following the occurrence of a Termination Event.
[23] Justice Hainey’s decision was affirmed by the Court of Appeal on August 7, 2020. The Court of Appeal confirmed that the IESO was entitled to terminate the FIT Contracts pursuant to s. 9.2 as a result of the Contracting Plaintiffs’ failure to achieve commercial operation by the MCOD and that the IESO was not estopped from terminating the FIT Contracts.
[24] The Plaintiff sought leave to appeal the decision of the Court of Appeal to the Supreme Court of Canada. In order to prevent the occurrence of a “Termination Event” under the Security Agreement, the Plaintiffs brought a motion seeking a stay of the Court of Appeal’s decision pending their applications for leave to appeal and, if leave was granted, pending the appeal before the Supreme Court of Canada.
[25] By a decision released on December 2, 2020, Trotter J.A. granted a stay pending determination of the leave application. Trotter J.A. was not prepared to order a stay that potentially extends past the time when the Supreme Court of Canada determined the applications for leave to appeal.
[26] Leave to appeal to the Supreme Court of Canada was denied on February 18, 2021. By operation of the terms of the July Order and the Security Agreement, the FIT Contracts are deemed to have been terminated effective as of the earliest date they could have been terminated (which dates are in September and October 2019).
[27] The Plaintiffs issued the Statement of Claim in the within action and brought this motion for injunctive relief. On February 24, 2021, Justice Hainey ordered the IESO to make the next FIT payment. On the hearing of this motion, I was advised that the next payments under the FIT Contracts were due that day. I made an interim order extending the interim order made by Hainey J. to cover the payments due that day under the FIT Contracts on the same terms as were imposed by Hainey J. in his February 24, 2021 endorsement.
Analysis
Are the Plaintiffs, through this motion, impermissibly seeking to collaterally attack court orders?
[28] The IESO submits that this motion is a collateral attack on the July Order and December Order and should be denied on that basis alone.
[29] In support of this submission, the IESO relies on the decision of the Supreme Court of Canada in Canada (Attorney General) v. TeleZone Inc., 2010 CarswellOnt 9657. In that case, TeleZone claimed that it was wronged by a decision of the Minister of Industry Canada that rejected its application for a license to provide telecommunications services. It brought an action in the Ontario Superior Court of Justice against the Federal Crown for its claimed losses. The Attorney General argued that Tele-Zone’s claim constituted an impermissible collateral attack on the Minister’s order. In his reasons, Binnie J. explained the rule against collateral attack, at para. 61:
The rule is a judicial creation (which must therefore yield to a contrary legislative enactment) based on general considerations related to the administration of justice, as explained in Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629 (S.C.C.), at para. 72:
The fundamental policy behind the rule against collateral attack is to “maintain the rule of law and to preserve the repute of the administration of justice” (R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, at para. 349). The idea is that if a party could avoid the consequences of an order issued against it by going to another forum, this would undermine the integrity of the justice system. Consequently, the doctrine is intended to prevent a party from circumventing the effect of a decision rendered against it. [Emphasis Added.] [by Binnie J.]
[30] The FIT Contracts are deemed to have been terminated retroactively as a result of the July Order. On this motion, the Plaintiffs seek an interim and interlocutory order restraining the IESO from “enforcing the retroactive terminations of the 34 FIT Contracts in this Action, including by discontinuing FIT Payments or demanding repayments under the Security Agreement, pending adjudication of the Plaintiffs’ claims”.
[31] The legal effect of the terminations of the FIT Contracts as a result of the July Order is that the IESO is no longer contractually bound to make payments under the FIT Contracts and it is entitled to enforce payment of the secured indebtedness. By asking the Court to restrain the IESO from discontinuing FIT Payments and from enforcing payment of the secured indebtedness, the Plaintiffs ask for an order that would have the effect of rendering inoperative the consequences of the July Order.
[32] Pursuant to the December Order, Hainey J. ordered that the Plaintiffs “must repay to the respondent any overpayments made pursuant to the FIT Contracts if they are not successful on their appeal from my decision”. When this order was made, the Plaintiffs conceded that if they are not successful on their appeals from the decision of Hainey J., they will have to pay back to the IESO the difference between the FIT Contracts’ rates and the prevailing market rates. The endorsement of Hainey J. records that the Plaintiffs are prepared to give an undertaking to this effect.
[33] The Plaintiffs submit that the undertaking to which the endorsement of Hainey J. refers was a secured undertaking in damages given by the Plaintiffs as a condition of their request for an interlocutory order restraining the IESO from enforcing repayment of the overpayments and from stopping payments under the FIT Contracts until there had been a final adjudication of whether the IESO was entitled to terminate the FIT Contracts. They argue that the within action in which they challenge the validity of the deemed terminations changes the landscape and, notwithstanding the December Order (and the agreements later signed), they are entitled to an equitable remedy so that the Plaintiffs do not suffer irreparable harm before their claim is adjudicated.
[34] The Plaintiffs submit that they could not have advanced their claims based on bad faith before the FIT Contracts were terminated because until such times, the claims would have been hypothetical and premature. They point to the Notice of Motion on their motion to Justice Hainey in December 2019 in which they assert in one of their grounds for the motion that if the Court finds that the FIT Contracts are deemed to have been terminated, they intend to commence an action to have the terminations or letters of default declared invalid because they were not delivered in good faith, and they ask the Court to enjoin enforcement of any such terminations pending final resolution of the action on its merits. The Plaintiffs argue that their motion before me is not a collateral attack on the July Order or the December Order because they were transparent with the Court and the IESO that they intended to commence an action for bad faith and seek interlocutory relief pending trial.
[35] I do not accept this submission. The Plaintiffs sought alternative relief in their Notice of Motion if Hainey J. were to find that there have been deemed terminations of the FIT Contracts. But Hainey J. did not find that there were deemed terminations. He concluded that the July Order is clear that the status quo is to be maintained, but only until any appeal from his decision has been decided. The IESO was required to comply with its obligations under the FIT Contracts during this period.
[36] The Plaintiffs consented to the July Order by which the FIT Contracts would be deemed to be terminated upon the expiry of the stay periods (which, because of the stay ordered by Trotter J.A., expired upon release of the decision of the Supreme Court of Canada denying leave). On the motion before Hainey J. which resulted in the December Order, notwithstanding what is stated in their Notice of Motion, the Plaintiffs did not reserve the right to seek an interlocutory injunction restraining IESO from enforcing repayment of overpayments made by IESO and stopping FIT Payments on FIT Contracts which were deemed to be terminated pending the outcome of the bad faith action they intended to bring. Instead, they offered an unqualified undertaking to pay back to the IESO the overpayments if they were unsuccessful on their appeal from Justice Hainey’s Order. The December Order is clear, and without reservation, that the Plaintiffs must repay these amounts if their appeal is not successful.
[37] If the Plaintiffs wished to qualify the December Order and reserve a right to seek an order delaying repayment to IESO of overpayments and requiring IESO to continue making payments under the FIT Contracts after they were deemed to be terminated until the trial of their bad faith claim, the time to seek such a qualification was before it was made.
[38] In my view, the Plaintiffs’ motion is a collateral attack on the July Order and the December Order because the relief sought, if granted, would allow the Plaintiffs to circumvent these orders by (i) avoiding the consequences of the deemed terminations of the FIT Contracts that resulted from the July Order, and (ii) avoiding their court-ordered obligation under the December Order to repay the excess payments made by the IESO.
[39] This motion is barred by the rule against collateral attack.
[40] Although this conclusion is dispositive of this motion, I address the other issues that were raised.
Do the Plaintiffs’ contractual obligations prevent them from being granted interlocutory relief?
[41] Under the Security Agreement, the Contracting Plaintiffs agreed that upon the dismissal of their appeal in the prior litigation, the FIT Contracts would be terminated in accordance with the July Order without further action or notice required to be taken by the IESO.
[42] The third recital to the Security Agreement reads:
AND WHEREAS the Debtors have also jointly and severally agreed to repay the amount of any Initial Security and any Incremental NTP Security refunded or returned to any Debtor with respect to each Project of such Debtor that is a Terminated Operating Project (the “Returned Pre-COD Completion and Performance Security”) upon demand following the occurrence of a Termination Event, which obligation shall form part of the Secured Obligations;
[43] The term “Termination Event” is defined in the Security Agreement as follows:
“Termination Event” means, upon the issuance of the CA Court Decision, the termination of some or all of the FIT Contracts for the Projects by reason of such Projects failing to reach Commercial Operation prior to the Milestone Date for Commercial Operation under the applicable FIT Contracts, which termination shall occur in accordance with the July 2019 Order, without further action or notice required to be taken or given by the Secured Creditor.
[44] The Security Agreement provides that each Contracting Plaintiff agrees to pay to the IESO the overpayments (and other amounts) “upon demand following the occurrence of a Termination Event”.
[45] Pursuant to the Postponement Agreement, upon the occurrence of a “Termination Event”:
... the Subordinator [Eclipsall] agrees that the Subordinator Indebtedness shall not be paid, forgiven or otherwise satisfied but shall remain unpaid by the Debtors. Any amounts received by the Subordinator or by any agent of the Subordinator on account of any Subordinator Indebtedness, other than the amounts the Subordinator is entitled to receive pursuant to this Section 4, shall be held in trust for the IESO and forthwith paid to the IESO.
[46] The IESO submits that under these contracts, the Contracting Plaintiffs agreed to repay the overpayments to the IESO upon deemed terminations of the FIT Contracts in accordance with the July Order. On this motion, the Plaintiffs do not seek to set aside these contracts. Eclipsall is not a party to this action and does not seek to set aside the Postponement Agreement.
[47] The Plaintiffs submit that the Security Agreement and the Postponement Agreement present no obstacles to the injunctive relief they seek because no “Termination Event”, within the meaning of that term in these agreements, has occurred. Although the Plaintiffs acknowledge that the FIT Contracts are terminated as a result of the July Order, they contend that the deemed terminations of the FIT Contracts are not a “termination” within the meaning of the term “Termination Event” in the Security Agreement because, since the IESO breached its duty of good faith, the terminations are invalid. They submit, in these circumstances, it is just for me to grant the interlocutory relief sought.
[48] I am satisfied that a Termination Event has occurred in relation to each FIT Contract because each is deemed to have been terminated as a result of the July Order. When they entered into the Security Agreement and the Postponement Agreement, the Plaintiffs had expressed their intention to commence an action seeking an order invalidating the deemed terminations, as shown by their Notice of Motion on the motion before Hainey J. which led to the December Order. Nevertheless, they entered into these agreements without providing for any contractual right which would allow them to disregard the legal consequences of the deemed terminations if they commenced a bad faith claim and sought interlocutory relief. If I were to grant the interlocutory relief sought, I would be sanctioning ongoing breaches of the Security Agreement and the Postponement Agreement.
[49] In my view, the contractual obligations of the Plaintiffs and Eclipsall under the Security Agreement and the Postponement Agreement militate against granting the interlocutory relief sought.
Have the plaintiffs satisfied the requirements for an interlocutory injunction?
[50] The usual test for obtaining an interlocutory injunction was established by the Supreme Court of Canada in RJR-MacDonald v. Canada (Attorney General), 1995 CanLII 64 (SCC); [1995] 3 S.C.R. 199 in which the Court held that an interlocutory injunction may be granted where the moving party establishes that (a) there is a serious issue to be tried; (b) the moving party will suffer irreparable harm if an injunction is not granted; and (c) the balance of convenience favours granting the relief sought.
Are the Plaintiffs seeking a prohibitive or a mandatory injunction?
[51] The Plaintiffs submit that the injunctive relief sought is a prohibitive order and that the RJR-MacDonald three-part test applies which requires them to show a serious question to be tried at the first stage of the analysis. In RJR-MacDonald, the Supreme Court of Canada held, at p. 337, that there are no specific requirements which must be met to satisfy the test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. Once satisfied that the application is neither vexatious nor frivolous, the motion judge should proceed to consider the second and third tests, even if of the opinion the plaintiff is unlikely to succeed at trial. At this stage, a prolonged examination of the merits is neither necessary nor desirable.
[52] The IESO submits that on this motion the Plaintiffs are seeking a mandatory injunction and, therefore, at the first stage of the analysis, they are required to show that they have a strong prima facie case that they will succeed at trial.
[53] In R. v. Canadian Broadcasting Corp., 2018 SCC 5, the Supreme Court of Canada held, at para. 15, that on an application for a mandatory interlocutory injunction, the appropriate criterion for assessing the strength of the applicant’s case at the first stage of the RJR-MacDonald test is not whether there is a serious issue to be tried, but rather whether the applicant has shown a strong prima facie case. The Supreme Court of Canada in CBC explained that a mandatory injunction “directs the defendant to undertake a positive course of action, such as taking steps to restore the status quo, or otherwise ‘put the situation back to what it should be’”. The Court observed that “the potentially severe consequences for a defendant which can result from a mandatory injunction, including the effect of final determination of the action in favour of the plaintiff, further demands what the Court described in RJR-MacDonald as ‘extensive review of the merits’ at the interlocutory stage”.
[54] In CBC, the Supreme Court of Canada acknowledged that distinguishing between mandatory and prohibitive injunction can be difficult and held that, ultimately, the motion judge will have to look past the form and language in which the order sought is framed in order to identify the substance of what is being sought and, in light of the particular circumstances of the matter, what the practical consequences of the injunction are likely to be. The motion judge should examine whether, in substance, the overall effect of the injunction would be to require the responding party to do something, or to refrain from doing something. See CBC, at paragraph 16.
[55] In support of their submission that they seek a prohibitory injunction and need only meet the serious question to be tried threshold at the first stage, the Plaintiffs cite the decision of the Divisional Court in TDL Group Ltd. v. 1060284 Ontario Ltd., 2001 CarswellOnt 3304. In TDL, the motion judge had applied the “serious question to be tried” test and, on appeal, the appellant argued that she had erred in doing so because the relief sought was mandatory, not prohibitive. In TDL, a franchisor was prohibited from taking steps to evict the franchisee or interfering with its business until trial. The franchisor argued that the franchise agreement had expired, and the injunctive relief required the franchisor to continue to do business with the franchisee when it did not wish to do so. The Divisional Court disagreed, noting that there was a contractual right to renew in the franchise agreement such that any continued occupation of the premises and continued business relationship is a matter that was agreed to by the parties in their contract. The issue in the action was whether the notice required to trigger the renewal clause was waived by the franchisor’s alleged anticipatory breach of their contract. The Divisional Court, at para. 9, held that the essence of the injunction was the prohibition of what was alleged to be a breach of contract and, as such, it was prohibitive.
[56] The Plaintiffs also rely on Ryerson Students’ Union v. Ryerson University, 2020 ONSC 1490. In Ryerson, the moving party sought an interlocutory injunction to restrain Ryerson University from terminating an operating agreement pending resolution of the action. Ryerson University argued that the injunction sought was mandatory because it had already terminated the operating agreement. It did so without prior notice. Koehnen J. considered that termination of a contract that has been in place for many years ordinarily demands a lengthy period of notice and he held that, “seen in this light, the injunction RSU seeks is one that would enjoin a breach of contract”.
[57] In TDL and in Ryerson, an issue before the court was whether the contract in question had been lawfully terminated. In each of these decisions, the court held that the injunctive relief sought was prohibitory because the moving party sought to enjoin a breach of contract which would result in termination of the contract, an issue that had not been adjudicated in either case.
[58] The Plaintiffs argue that there has not been an adjudication that the FIT Contracts were validly terminated because the issues raised in the bad faith claim, in which the validity of the terminations of the FIT Contracts is challenged, were not before the application judge and or the Court of Appeal. It is correct that the merits of the bad faith claims have not been adjudicated. It is not correct, however, that the issues of the IESO’s right to terminate the FIT Contracts, and whether they were validly terminated, have not been adjudicated. These issues were decided in the prior litigation.
[59] On this motion, the Plaintiffs accept that the FIT Contracts are terminated. The Plaintiffs seek an interlocutory injunction restraining IESO from acting on the terminations by stopping making payments to the Contracting Plaintiffs in accordance with the terms of the FIT Contracts.
[60] Prior to the release of the decision of the Supreme Court of Canada denying leave to appeal, the status quo, as maintained pursuant to the July Order, the December Order, and the Order of Trotter J.A. was that the FIT Contracts remained in effect, and the IESO was bound to comply with its obligations thereunder. Upon the release of the decision of the Supreme Court of Canada denying leave to appeal, the status quo changed. The FIT Contracts were deemed to have been terminated. The legal consequence that followed was that upon such terminations, the IESO was no longer bound to discharge its contractual obligations under the FIT Contracts, including by making payments to the Contracting Plaintiffs based upon the rates contracted for in the FIT Contracts.
[61] Through this motion, the Plaintiffs seek to change the status quo and restore the parties to the positions they were in before the FIT Contracts were terminated. The substance of the requested relief is not to restrain a breach of contract that would result in termination of the FIT Contracts. The substance of the motion is to require the IESO to do something that, given that the FIT Contracts are terminated, it is not contractually required to do, that is, make payments to the Contracting Plaintiffs in accordance with the payment obligations in the FIT Contracts and refrain from enforcing their contractual right to seek repayment of the secured indebtedness. The Plaintiffs seek a mandatory injunction.
[62] The Plaintiffs must meet the modified RJR-MacDonald test and, at the first stage, demonstrate a strong prima facie case that they will succeed at trial. This means that they must show a strong likelihood on the law and the evidence presented that, at trial, they will be ultimately successful in proving the allegations in the statement of claim that would entitle them to the relief sought. See CBC, at para. 18.
Have the Plaintiffs shown a strong prima facie case?
[63] The Plaintiffs’ action is based on the allegation that the IESO breached its duty of honest performance by knowingly misleading the Plaintiffs about its intention to exercise the termination right provided for in the FIT Contracts from June or July 2018 until late March 2019.
[64] The Plaintiffs make three main assertions with respect to the merits of their claim. First, the IESO breached its duty of honest performance because it knowingly failed to correct a misapprehension created by its own conduct in the exercise of its contractual termination right by remaining silent until late March 2018 about its decision made months earlier to reassert its termination rights. Second, the IESO breached its duty to exercise contractual discretion in good faith because the exercise of its discretion to terminate the FIT Contracts was not rationally connected to the purposes for which it was granted – to give it flexibility to re-evaluate its changing electricity needs when deciding whether to move ahead with a delayed contract in light of current circumstances. Third, the IESO breached its duties to cooperate to achieve contractual objects and not to evade contractual obligations that were recognized by the Supreme Court of Canada in Bhasin v. Hrynew, 2014 SCC 71. The Plaintiffs argue that in deciding to terminate the FIT Contracts, the IESO, rather than seeking to cooperate with the Plaintiffs, tried to evade its contractual obligations by taking advantage of its own act in sending the March 2019 letters, which created an industry scramble for resources that made it impossible for the Plaintiffs to meet their MCODs.
[65] The IESO contends that the Plaintiffs cannot demonstrate a strong case that they will succeed at trial (or even that there is a serious issue to be tried). The IESO submits that the essential issue in this action is the same as the issue that was decided in the prior proceedings, that is, the IESO’s entitlement to terminate the FIT Contracts as a result of the Contracting Plaintiffs’ failure to achieve commercial operation by the MCOD. The IESO argues that this issue has been decided, and relitigation of the same issue is precluded by the doctrine of issue estoppel. This doctrine prevents re-litigation of the material facts that the cause of action in the prior proceeding embraces, even where different causes of action are asserted in the new proceeding. See The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA, at paras. 27 and 44.
[66] The IESO also argues that the doctrine of cause of action estoppel operates to preclude the Plaintiffs from relitigating the claims made in the prior litigation through this action. Parties to litigation are required to bring forward their whole case and no party is permitted to re-litigate a matter on the basis of a new theory or view of the case. Cause of action estoppel bars claims which could have been argued in the prior action if the party in question had exercised reasonable diligence, and if the claim properly belonged to the previous litigation: Catalyst, at paras. 49-50. The IESO submits that the claims based on bad faith could have been argued in the prior litigation, just as estoppel by convention and promissory estoppel were argued, as a legal basis for the Court to decide that the IESO was not entitled to terminate the FIT Contracts. The IESO submits that the bad faith claims belonged to the prior litigation and that the Plaintiffs are barred from making these claims in their new action.
[67] The Plaintiffs submit that their bad faith claims were not made or decided in the prior litigation. They submit that the two issues in the prior litigation were whether the IESO had a right to terminate the Contracting Plaintiffs’ FIT Contracts and whether the IESO was precluded from terminating these contracts by the doctrine of estoppel. The Plaintiffs contend that the fact that the court found that a termination right exists has little to do with their bad faith claims which are about how that right was exercised.
[68] The questions addressed by the Court of Appeal, as identified at para. 2 of its decision, were (1) whether the application judge erred in concluding that the contract could be terminated by the IESO if the Contracting Plaintiffs failed to achieve commercial operation by the Milestone Date, and (2) whether the application judge erred in finding that the IESO was not estopped from doing so. The Plaintiffs brought the applications to determine their contractual rights under the FIT Contracts.
[69] The Court of Appeal concluded, at para. 36, that the application judge did not err in finding that the IESO had the right to terminate the contracts without paying damages as a result of the appellant’s failure to achieve commercial operation by the MCOD. This conclusion was not simply a declaration of the existence of a contractual provision in the FIT Contracts which conferred a right to terminate. The Court of Appeal’s conclusion was that IESO “was entitled to terminate the FIT Contracts pursuant to s. 9.2 of the FIT Contracts as a result of the appellants’ failure to achieve commercial operation by the MCOD”. This conclusion, in my view, is one that the IESO has a contractual right to exercise the termination right in article 9.2 of the FIT Contracts.
[70] The Court of Appeal then addressed whether the IESO was precluded from exercising its contractual right to terminate the FIT Contracts by the doctrine of estoppel, either estoppel by convention or promissory estoppel. The Court of Appeal first addressed estoppel by convention. The Plaintiff had argued that they had a shared assumption with the IESO, based on the policy expressed in the 2013 Bulletin, that the IESO would continue to follow its existing practice of not terminating FIT Contracts as a result of a supplier’s failure to meet the MCOD. The application judge had found that this was not an assumption shared by the IESO and, at paras. 59-64, the Court of Appeal concluded that there was no basis to interfere with this finding.
[71] The Court of Appeal then addressed the Plaintiffs’ submissions based on promissory estoppel and concluded, at para. 71:
In summary, the appellants may well have assumed that time limits they contracted to meet did not really matter. But the respondent did not share that assumption, nor did it promise that it will not enforce those time limits. In these circumstances, the problem of detrimental reliance does not arise, as there is neither a shared assumption nor a promise on which the appellants could have relied on to their detriment. The application judge’s statement that withdrawal of the bulletin and the respondent’s break with its past practice “does seem unfair” is inappropriate, in my view, for it is not the role of the judge to pronounce on the fairness of a contract or actions taken in accordance with it. In the absence of a finding that there was a shared assumption or promise that was reasonably relied upon by the appellants, the question of fairness simply does not arise. The appellants chose to enter into a contract with the respondent that made time of the essence. There is no basis for this court not to give effect to their choice and the consequence it entails: the respondent’s right to terminate the contracts under s. 9.2.
[72] This passage from the Court of Appeal’s decision makes it clear that the Court decided that the IESO was entitled to exercise the contractual right to terminate the FIT Contracts, and not simply that such a right exists.
[73] The July Order supports the position taken by the IESO with respect to issue estoppel and cause of action estoppel. The July Order provides that upon the expiry of the stay periods in the July Order (until a decision in favour of the IESO on the applications on the Commercial List and appeals from such decision decided in favour of the IESO) “the IESO will be deemed to have issued the Notices of Termination on the earliest date(s) they could have been delivered, nunc pro tunc”. Given the July Order, upon the expiry of the stay periods in the July Order (and subject to the further stay that was ordered by Trotter J.A.), there was nothing to be done by the IESO to exercise its contractual right to terminate the FIT Contracts.
[74] In their action, the Plaintiffs rely on the doctrine of good faith to support the declaration they seek that the deemed terminations are invalid, and the FIT Contracts are fully operational. The Plaintiffs submit that no bad faith claims could have been made in the prior litigation because no terminations had yet occurred. They argue that until the prior litigation was finally determined, the IESO remained free to depart from its pre-emptive decision and not exercise the termination right. The Plaintiffs say that only when the IESO failed to do so did the claims in this action arise.
[75] In support of this argument, the Plaintiffs submit that all the facts in respect of their bad faiths claims in respect to termination of the FIT Contracts could not have been known when the applications were decided by the application judge or when the appeals were dismissed by the Court of Appeal. They contend that these facts could not be known until the FIT Contracts were actually terminated, which only happened on February 18, 2021 when leave to appeal was denied. The Plaintiffs say, therefore, their bad faith claims did not properly belong to the prior litigation.
[76] In the prior litigation, the Plaintiffs sought a declaratory judgment as to the parties’ rights under the FIT Contracts, in particular, the IESO’s right to terminate those contracts for failure to achieve commercial operation by the MCOD. The arguments founded on estoppel made in the prior litigation were that the IESO was precluded from exercising the contractual right of termination in article 9.2 of the FIT Contacts. The application judge and the Court of Appeal held that it was not. The conduct of the IESO that was in the record before the application judge and the Court of Appeal, including conduct in relation to the announcement made in the 2013 Bulletin, the waiver letters, and the March 29, 2019 warning letters, is the same conduct upon which the Plaintiffs rely to support their bad faith claims in this action. The Court of Appeal, without addressing the claims of bad faith now made, which were not before it, held in relation to the arguments based on estoppel that “the question of fairness simply does not arise”.
[77] I am not satisfied that Plaintiffs could not have relied on the organizing principle of good faith and the duty of honesty in contractual performance in the prior litigation, just as they relied on the doctrine of estoppel, as a legal basis for the Court to make an order preventing the IESO from exercising its contractual termination right. They now seek to advance this new legal argument to persuade the Court to reverse the decision that the IESO was entitled to exercise the right to terminate the FIT Contracts a decision which, as a consequence of the July Order, has resulted in the deemed terminations of the FIT Contracts.
[78] The Plaintiffs argue that even if the bad faith claims were addressed in the prior litigation, the law in relation to bad faith changed after the Court of Appeal’s decision through decisions of the Supreme Court of Canada in C.M. Callow Inc. v. Zollinger, 2020 SCC 45 and Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7, and that such changes are special circumstances that create an exception to the doctrines of res judicata or collateral attack.
[79] In Bhasin, the Supreme Court of Canada recognized that there is an organizing principle of good faith that underlies and manifests itself in various more specific doctrines governing contractual performance. That organizing principle is simply that parties generally must perform their contractual duties honestly and reasonably and not capriciously or arbitrarily. The Supreme Court of Canada held in Bhasin, under the umbrella of the organizing principle of good faith, that there is a general duty of honesty in contractual performance which means that parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract.
[80] In Callow, the Supreme Court of Canada decided an appeal from a decision of the Court of Appeal for Ontario. The action involved termination of a commercial contract. The Supreme Court of Canada focused, at para. 55, on the manner in which the termination right was exercised, which, it held, must not be confused with whether there was a contractual right to terminate the contract. The Court considered the organizing principle of good faith recognized in Bhasin and observed that the appellant, Callow, invoked two existing doctrines: the duty of honest performance and the duty to exercise discretionary powers in good faith. The Court held, at para. 44, that “[n]o expansion of the law set forth in Bhasin is necessary to find in favour of Callow. Rather, this appeal provides an opportunity to illustrate the existing doctrine that, I say respectfully, was misconstrued by the Court of Appeal”.
[81] In Wastech, the appeal raised the issue of whether a common law duty of good faith performance applied to the particular contract at issue and, more specifically, how principles of good faith might preclude the abuse of contractual discretionary powers. The Supreme Court of Canada held, at para. 53, that it had not been shown that the respondent performed its obligations or exercise its rights under the contract in a manner contrary to the applicable requirements of good faith and that the respondent breached neither the duty of honest performance nor the duty to exercise discretion in good faith. In so concluding, the Court, at para. 58, expressed its agreement with the parties that the duty to exercise contractual discretionary powers in good faith is well-established in the common law and that it was expressly recognized by Cromwell J. in Bhasin in his account of the organizing principle of good faith.
[82] Based on my review of the decisions in Bhasin, Callow, and Wastech, I conclude that the Plaintiffs have failed to show a strong likelihood that, at trial, they will be successful in their argument that the decisions in either Callow or Wastech changed the law in a material way so as to constitute special circumstances to warrant the exercise of discretion not to apply the doctrines of issue estoppel or cause of action estoppel.
[83] On this motion for an interlocutory injunction, I am not called upon to make a final decision on whether the Plaintiffs’ claims that the FIT Contracts were not lawfully terminated and remain fully operational because the IESO breached its contractual duty of good faith will succeed at trial. I am required to assess whether the Plaintiffs have shown a strong prima facie case that they are likely to be successful on this claim at trial.
[84] Given the decisions of the Courts in the prior litigation and the effect of the July Order which has resulted in the deemed terminations of the FIT Contracts, I am not satisfied that the Plaintiffs have shown a strong likelihood that, at trial, they will be successful in showing that (i) the Court of Appeal decided only that the IESO’s termination right existed, and did not decide the IESO was entitled to exercise its contractual right to terminate the FIT Contracts, (ii) the application judge and the Court of Appeal, when these Courts decided that the IESO was entitled to terminate the FIT Contracts, decided a different issue than the issue raised in this action, and (iii) their arguments based on the doctrine of good faith were not available to them and did not belong in the prior litigation.
[85] I am not satisfied that the Plaintiffs have shown a strong likelihood on the law and the evidence presented that, at trial, they will be ultimately successful in proving that the FIT Contracts were not validly terminated and are fully operational.
Have the plaintiffs shown that they will suffer irreparable harm if the injunction is not granted?
[86] The Plaintiffs are required to demonstrate that if the interlocutory injunction is not granted, they will suffer irreparable harm. “Irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of irreparable harm include instances where one party will be put out of business by the court’s decision or where one party will suffer permanent market loss or irrevocable damage to its business reputation. See RJR-MacDonald, at para. 59.
[87] The evidence of irreparable harm must be clear and not speculative. Bald allegations without factual underpinning establishing a reasonable likelihood of irreparable harm do not satisfy this requirement: Dilco Anishinabek Family Care v. Her Majesty the Queen (Ontario), 2020 ONSC 892 (Div. Ct.).
[88] The Plaintiffs rely on the decision of Trotter J.A. in which he held that he was satisfied that a failure to preserve the status quo could result in the financial consequences the Plaintiffs envisage and, whether or not the subsequent payment of withheld FIT payments could repair the purely commercial repercussions they fear, he was satisfied that “the human cost would be irreparable”. This decision was made in a different context where the Plaintiffs were seeking to preserve the status quo until a decision on their application for leave to appeal and, if leave was granted, the appeal. Trotter J.A. was satisfied that the interests of justice required that the orders of the Court of Appeal be stayed pending the applications for leave to appeal, but he was not prepared to order a stay that potentially extends into the future. On the motion before me, the Plaintiffs are seeking to alter the status quo, and they seek a mandatory injunction that will remain in effect until the trial of their action. I consider the evidence with respect to irreparable harm in the context of the motion before me.
[89] The Plainitffs rely on evidence from the Chief Executive Officer of Grasshopper, Azeem Qureshi, that if the IESO is not prevented from enforcing the terminations of the FIT Contracts and FIT Payments cease, the Plaintiffs will be unable to meet their ongoing payment obligations, including to Eclipsall. Mr. Qureshi states that without ongoing FIT Payments, Solar Fund will materially default on its credit agreement with Eclipsall because it does not have access to other funds to repay Eclipsall’s loan with interest.
[90] Mr. Qureshi states that “Eclipsall has been very clear in its communications with us that, if the FIT Payments do not continue, they see no further path, will call their loan, and will start enforcement proceedings”. Mr. Qureshi states that in this event, he believes and expects that the Contracting Plaintiffs will be wound down and liquidated, causing Grasshopper to lose all its employees and human capital, and threatening the Non-Contracting Plaintiffs’ viability on a global scale because cross-collateralization provisions in Solar Fund’s credit agreement with Eclipsall will be triggered for the Non-Contracting Plaintiffs’ other assets in Canada as well as in Japan and the United States. Mr. Qureshi states that Solar Fund’s broader business relationship with Eclipsall will be irreparably harmed and will effectively end, and the Non-Contracting Plaintiffs’ reputations in the global financial markets will be permanently damaged.
[91] The IESO relies on evidence that the Projects, even without the FIT Payments, generate sufficient revenue to cover operations and maintenance costs associated with operating the Projects in the near term. The Plaintiffs assert that this is irrelevant, given Mr. Qureshi’s statement that Eclipsall will call their loan if the FIT Payments stop. I regard this evidence as relevant because it raises the question of why Eclipsall will call its loans, if the Projects are not losing money. There may be a good reason, but the only reason in the record is not from Eclipsall, but from Mr. Qureshi, that “they [Eclipsall] see no further path”.
[92] The IESO relies on evidence that the Plaintiffs only started construction on many of the Projects months after receiving the MCOD notice letter in March 2019. The Plaintiffs have confirmed that at the time of this notice, approximately $7.70 million of the total advances of $70 million had been advanced by Eclipsall. After receiving this notice, the Plaintiffs acquired an additional 17 projects, substantially adding to the number of projects which needed to be built. After the July Order, faced with deemed terminations of the FIT Contracts if they were unsuccessful in the litigation, the Plaintiffs continued to invest in the Projects.
[93] In M&M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134, Paciocco J.A. heard a motion for a stay of a vesting order pending the appeal. The moving party argued that if the stay of the vesting order were to be denied, mortgagees would immediately enforce their mortgage debts against the moving party, causing it to become insolvent. Paciocco J.A. held, at para. 39, that he did not need to decide whether the evidentiary foundation for this assertion was sufficient because if this were to happen, the moving party would be the author of its own misfortune because, knowing that it could lose the land in litigation, it chose to encumber the land and thereby courted the risk of defaulting on its financial obligations if the land was lost in the litigation. Paciocco J.A. held that “[i]t does not lie in the mouth of a litigant who did not face the risk of irreparable harm from the enforcement of the pending claim, to voluntarily assume such risk after the litigation is pending, and then rely upon that risk to impede the enforcement of that claim after it succeeds”.
[94] In my view, the same reasoning applies to this case. The Plaintiffs, having been told that the IESO intended to terminate the FIT Contracts if the Contracting Plaintiffs failed to achieve commercial operation by the MCOD, chose to acquire new projects, borrow from Eclipsall, and build the Projects, knowing that the contracts might be terminated. After the July Order, the Plaintiffs knew that the FIT Contracts would be deemed to be terminated if the Plaintiffs were unsuccessful in their applications. I accept that the Plaintiffs may have had business reasons to take the risks they did. Nevertheless, in these circumstances, the Plaintiffs’ decision to take the risks associated with their actions in the face of notice from the IESO that it intended to exercise its right to terminate the FIT Contracts if commercial operation was not achieved by the MDCO does not constitute irreparable harm when those risks materialize.
[95] The consequences that Mr. Qureshi states that he expects to follow from cessation of payments under the FIT Contracts are based upon his statement that Eclipsall will immediately demand repayment of its entire loan and enforce its security. The Plaintiffs did not tender evidence from Eclipsall that it intends to take such actions. They have not produced a demand letter or provided particulars of any communication from Eclipsall asserting that it will do so. They have not identified who made it clear that Eclipsall would take these actions and why. If direct evidence was provided by Eclipsall, it could have been tested through cross-examination. Without such direct evidence, there is only the general statement by Mr. Qureshi about what an unknown person or persons at Eclipsall conveyed in communications, evidence that could not be effectively tested through cross-examination.
[96] I regard the statement by Mr. Qureshi about Eclipsall’s intentions as a bald statement with no factual underpinning. His statements of what he expects will occur if an injunction is not granted, founded on the unsubstantiated evidence concerning Eclipsall’s expected course of action, is speculative. This is not the type of clear, factually supported evidence that is needed to establish that harm, which would otherwise be compensable in damages, will be irreparable because the moving party will be put out of business.
[97] The Plaintiffs have failed to establish that they will suffer irreparable harm if the interlocutory injunction is not granted.
Have the Plaintiffs shown that the balance of convenience favours granting the injunction?
[98] If the Plaintiffs have shown that they have satisfied the requirements at the first two stages of the analysis, they still must show that the balance of convenience favours the granting of the interlocutory injunction. The court must consider which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits.
[99] The Plaintiffs submit that they have given security to cover the amounts to be repaid to IESO if they are unsuccessful at trial. The Plaintiffs’ expert, Richard Sung, has given evidence that the net resale value of the portfolio backed by the security agreement is approximately $11.11 million.
[100] As of March 9, 2021, the Contracting Plaintiffs have received a total of approximately $4,155,246.05 that would be subject to repayment. The IESO estimates that if an injunction is granted, it will pay a further $4 million in FIT Payments per year. The plaintiffs contend that the action can proceed to trial swiftly on the Commercial List, within a year or up to 18 months. They submit that by then, the Contracting Plaintiffs will have received only $10.2 million from the IESO and the security will be more than sufficient to cover this.
[101] The IESO challenges the value of the security. The IESO points to Mr. Sung’s evidence that he assumes that the assets will be sold within the next twelve months. The IESO argues that any sale will not take place within twelve months, so this estimate of value is of little use. His evidence is that the assets would be sold in “as-new” condition, an assumption that, the IESO contends, is not warranted. The IESO points to Mr. Sung’s evidence that he did not consider site rehabilitation costs (which could be $1.2 million) because he assumed that these costs would not be the responsibility of the IESO. The IESO argues that if it is required to realize on its security, this will be because the Plaintiffs have failed to pay the amount owing, and it follows that they will be unable to pay for site remediation, leaving this cost to be borne by the IESO. The IESO argues that Mr. Sung has failed to consider storage costs or other costs of realizing on the security.
[102] The IESO also contends that the Plaintiffs have failed to show that there is no reasonable likelihood that the security will be insufficient. The IESO disagrees that the action can be tried within 18 months. The IESO says that leave will be required under the Crown Liability and Proceedings Act, 2019 for the action to proceed against the Crown, which will take time, and other motions are likely. The IESO says that it will likely take two years or more for this action to reach trial.
[103] On the evidence before me, if I had concluded that the Plaintiffs had satisfied the requirements at the first two stages of the analysis, I would find that notwithstanding the issues that the IESO has raised with respect to the security, the balance of convenience tips in favour of the Plaintiffs.
Disposition
[104] For these reasons, this motion is dismissed.
[105] If the parties are unable to resolve costs, the IESO may make written submissions (no exceeding 4 pages, excluding costs outline) within 10 days. The Plaintiffs may make responding written submissions (also not exceeding 4 pages, excluding costs outline). If so advised, the IESO may make brief reply submissions (one page) within 5 days thereafter.
Cavanagh J.
Released: April 23, 2021
COURT FILE NO.: CV-21-00657840-00CL
DATE: 20210423
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GRASSHOPPER SOLAR CORPORATION, GSC SOLAR FUND I INC., ONE POINT TWENTY ONE GIGAWATTS INC., EGERTON SOLAR POWER LP, MP1 GM SOLAR 1 LP, KL SOLAR PROJECTS LP, HIGHLANDS SOLAR PROJECTS LP, MADAWASKA SOLAR PROJECTS LP, MCNAB SOLAR PROJECTS LP, PB SOLAR PROJECTS LP, RAMARA SOLAR PROJECTS LP, SUDBURY COMMUNITY SOLAR PROJECTS LP, and SUSTAINABLE OTTAWA PROJECTS LP
Plaintiffs and Moving Parties
– and –
INDEPENDENT ELECTRICITY SYSTEM OPERATOR, JANE DOE, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3 and JOHN DOE 4
Defendants and Responding Parties
REASONS FOR JUDGMENT
Cavanagh J.
Released: April 23, 2021