COURT FILE NO.: CV-18-00603637-0000
DATE: 20220524
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
600956 ONTARIO LTD., operating as PLASTICS PLUS
Plaintiff
- and –
ONIT ENERGY LTD., operating as ONTARIO WHOLESALE ENERGY GAS & ELECTRIC
Defendant
Jonathan Keslassy for the Plaintiff
Michael Citak for the Defendant
HEARD: May 10, 2022
PERELL, J.
REASONS FOR DECISION
[1] In this action, which was commenced in August 2018, the Plaintiff 600956 Ontario Ltd., operating as Plastics Plus, sues the Defendant Onit Energy Ltd. operating as Ontario Wholesale Energy Gas & Electric about contractual events that occurred between 2014 and 2018.
[2] There have been no examinations for discovery.
[3] In November 2021, Plastics Plus brought a motion for a summary judgment.
[4] On April 28, 2022, Onit Energy delivered an Amended Statement of Defence.
[5] On May 10, 2022, I heard the summary judgment motion. I reserved judgment.
[6] For the reasons that follow, I dismiss the summary judgment motion.
a. It is undisputed that in November 2014, Plastics Plus, which is an injection molding company, entered into two five-year utility supply contracts with Onit Energy, which is an energy supply wholesaler. One contract was for the supply of natural gas. The second contract was for the supply of electricity at a fixed rate charge for the electricity.
b. It was disputed, but it is now undisputed that both contracts were subject to a ten-day cooling off period.
c. It is undisputed that within a ten-day cooling off period, Plastics Plus cancelled the natural gas contract.
d. In a disputed issue, Plastics Plus alleges that it also cancelled the electricity contract.
e. Despite the alleged cancellation of the electricity, it is undisputed that Onit Energy supplied electricity under the electricity supply contract until November 7, 2019, when Plastics Plus cancelled the contract, just before it would have come to the end of its term.
f. It is a disputed issue about whether despite monthly invoices from Onit Energy, Plastics Plus appreciated who was supplying its electricity.
g. In a disputed issue, Plastics Plus alleges that it was overcharged $195,786.
h. It is undisputed that in 2018, Plastics Plus sued Onit Energy Ltd. to recover the overcharges plus interest and costs on a substantial indemnity basis.
i. In a procedurally-late arriving disputed issue, Onit Energy contends that Plastic Plus’s action should be dismissed as statute-barred under the Limitations Act, 2002.[^1]
j. In a disputed issue, Plastics Plus contends that it could not have discovered its claim until February 15, 2017 when a consultant audited Plastic Plus’s utility usage and, therefore, Plastic Plus submits its 2018 action is not statute-barred.
k. In a disputed issue, Plastics Plus contends that, in any event, there is a rolling limitation period and only part of its claim is statute-barred.
l. There is a disputed issue as to the calculation of the overcharges if there is liability and no limitation period defence.
m. There is a disputed issue about the calculation of the overcharges if there is a rolling limitation period.
n. The case is not appropriate for a summary judgment. There are at least eight disputed issues. All of the disputed issues are genuine issues requiring a trial.
o. The evidentiary record is inadequate to adjudicate the disputed issues. There have been no examinations for discovery. Only one of the two principals of Plastics Plus testified. There was no evidence from the utility consultant who revealed to Plastics Plus who was supplying its electricity. The representative of Onit Energy who negotiated the two supply contracts was available to testify, but he was not called as a witness.
p. The evidence on the calculation of the overcharges was wholly inadequate. While the parties are to be taken as if they had put their best evidentiary foot forward, they did not do so, and rather they backfooted themselves.
q. The genuine issues requiring a trial cannot be resolved by the enhanced powers granted to the court on a summary judgment motion.
r. All of the disputed issues cannot be fairly and justly resolved by a summary judgment, and it would not be in the interests of justice to do so.
[7] Plastic Plus’s summary judgment motion is dismissed - with costs in the cause. Although Onit Energy Ltd. was successful in resisting a summary judgment because of its late arriving motion material and its late arriving amendment to its Statement of Defence, the costs of this motion should be in the cause.
Perell, J.
Released: May 24, 2022
COURT FILE NO.: CV-18-00603637-0000
DATE: 20220524
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
600956 ONTARIO LTD., operating as PLASTICS PLUS
Plaintiff
- and –
ONIT ENERGY LTD., operating as ONTARIO WHOLESALE ENERGY GAS & ELECTRIC
Defendant
REASONS FOR DECISION
PERELL J.
Released: May 24, 2022
[^1]: S.O. 2002, c. 24, Sch. B.