2024 ONSC 4723

Court File and Parties

Court File Nos.: CV-22-00678681-00CL, CV-22-00686544-00CL, CV-23-00704955-00CL Date: 2024-08-26 Superior Court of Justice – Ontario (Commercial List)

Re: 1797472 ONTARIO INC. Applicant (Respondent by Counter-Application)

And:

INDEPENDENT ELECTRICITY SYSTEM OPERATOR Respondent (Applicant by Counter-Application)

Re: INDEPENDENT ELECTRICITY SYSTEM OPERATOR Applicant (Respondent by Counter-Application)

And:

SOLAR SKY FARMS INC. Respondent (Applicant by Counter-Application)

Re: 2323953 ONTARIO INC., BRIGHTPROOF SOLAR LIMITED PARTNERSHIP, GS 2013 LP, MOM SOLAR LIMITED PARTNERSHIP, MOM V LIMITED PARTNERSHIP, OSPS (00227-3673 MCBEAN) LIMITED PARTNERSHIP, OSPS (002281-150 ABBEYHILL) LIMITED PARTNERSHIP, OSPS (002334-159 LORRY GREENBERG) LIMITED PARTNERSHIP, POTENTIA SOLAR 14 LIIMITED PARTNERSHIP, PRI RT SOLAR LIMITED PARTNERSHIP, PSI SOLAR FINANCE 1 LIMITED PARTERNSHIP, SE 2011 LP, SUNE NEWBORO 4 LP and SUNE WELLAND RIDGE LP Applicants

And:

INDEPENDENT ELECTRICITY SYSTEM OPERATOR Respondent

Before: KIMMEL J.

Counsel: Sandra Barton, Adam Bazak and Cristina Borbely, for 1797472 Ontario Inc. and Solar Sky Farms Inc. Luis Sarabia and Rui Gao, for 2323953 Ontario Inc. et al Monique J. Jilesen, Andrea Wheeler, Jonathan McDaniel and Bhreagh Ross, for the Independent Electricity System Operator

Heard: Applications Heard March 7 and 8, 2024. Supplementary Written Costs Submissions Dated July 2, 16 and 24, 2024

COSTS ENDORSEMENT (APPLICATIONS TO INTERPRET FIT 1.3 and 1.5 contracts)

The FIT 1 Contract Decision

[1] These applications and counter-applications ("applications") were heard together on March 7 and 8, 2024, with reasons released on April 12, 2024: see 1797472 Ontario Inc. v. Independent Electricity System Operator, 2024 ONSC 2130 (the "FIT 1 Contract Decision").

[2] These applications involved the interpretation of the standard form feed-in-tariff (“FIT”) contract (FIT contract versions 1.3 and 1.5 or “FIT 1 Contracts”)) that the Independent Electricity System Operator (“IESO”) [1] started offering in 2011 under a government procurement program to attract new entrants (suppliers) into the green, renewable energy market in Ontario.

[3] The issue on these applications was whether certain “Optimizations” undertaken by the solar energy suppliers who are party to these applications (the "Suppliers") were "Contract Facility Amendments" within the meaning of s. 2.1(b) of the FIT 1 Contracts. The IESO argued that they were and, as such, notice and IESO consent were required before the solar energy suppliers undertook their Optimizations. The Suppliers argued that the Optimizations were not Contract Facility Amendments.

[4] The Suppliers involved in these applications are:

a. 1797472 Ontario Inc. (“Prism”), a family-owned solar business on a farm in Leamington, Ontario;

b. Solar Sky Farms Inc. (“Solar Sky”), a solar business operated by a couple from their farm in Palmerston, Ontario who have a foreign investor/partner; and

c. a sub-set of entities (the “Potentia Entities”) associated with Potentia Renewables Inc., which is a fully integrated developer, owner and operator of renewable energy assets with the largest solar rooftop portfolio in Canada. Potentia Renewables Inc. is party to close to 200 FIT 1 Contracts either directly, or through affiliates. In the interests of expediency, the contracts of the Potentia Entities were selected to participate in these proceedings (the “Potentia Sample FIT 1 Contracts"). The remaining affiliated entities with FIT 1 Contracts commenced separate applications that were scheduled to be heard in October 2024, after the outcome of these applications was known. [2]

[5] In the FIT 1 Contract Decision, the court granted the Suppliers’ applications and dismissed the IESO’s applications. The court found that the Suppliers had properly interpreted the FIT 1 Contracts. Accordingly, the court granted the primary declaratory relief sought by the Suppliers, that: There has been no Contract Facility Amendment within the meaning of their FIT 1 Contracts and their Optimizations did not require them to give notice to, or receive the consent of, the IESO. The monetary relief that flowed from these declarations was worked out after the hearing. The Suppliers confirmed after the hearing that they did not need to pursue any of the additional declaratory relief sought in their notices of application.

The Parties' Positions on Costs

[6] After the FIT 1 Contract Decision was released, the parties were encouraged to try to reach an agreement on costs but were unable to do so. Accordingly, the court provided directions for the exchange of written costs submissions. The parties' respective positions on costs are summarized in general terms below.

The Suppliers

[7] The Suppliers seek their partial indemnity costs of the applications and counter-applications, each in the following all-inclusive (of fees, disbursements and applicable taxes) amounts: [3]

a. The Potentia Entities: $1,010,273

b. Prism: $585,613

c. Solar Sky: $550,006.

[8] Prism and Solar Sky were represented by the same law firm, and the time for services provided by the lawyers has been allocated between the firm's two clients. Some of the disbursements (e.g. their primary expert) were split between all three of the Suppliers. They maintain that in the particular circumstances of this case, the amounts of partial indemnity costs that they claim are fair and reasonable and should be awarded to them as the successful parties. The Suppliers base that argument on the importance and complexity of the issues here, the principles of indemnity and proportionality, and what the IESO ought reasonably to have expected to pay as the losing party.

The IESO

[9] In its Bill of Costs delivered after the hearing but before the Court rendered its decision, the IESO claimed all-inclusive partial indemnity costs of $651,402.38 and substantial indemnity costs of $924,061.36. Those costs were based on actual all-inclusive costs of $1,014,949.55. In contrast, the claimed partial indemnity costs of the Davies law firm representing the Potentia Entities are $1,010,273 and the claimed partial indemnity costs of the Gowlings law firm representing Prism and Solar Sky are $1,135,619.

[10] The IESO does not dispute that, as the successful parties, the Suppliers are entitled to an award of partial indemnity costs of these applications. However, the IESO argues that the amounts claimed are excessive and disproportionate and not fair, reasonable or consistent with the guiding principles that govern awards of costs under Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The IESO says that the amounts claimed are not in line with what the IESO, as the losing party, could reasonably have expected to pay for a two-day application hearing. The IESO points to the fact that the Suppliers' combined total claimed partial indemnity costs plus disbursements are approximately twice the total actual costs and disbursements incurred by the IESO.

[11] The IESO suggests that the appropriate amount of partial indemnity costs to award to the Suppliers would be aggregate fees of $723,895.56 (which is equal to 1.5 times the fees, excluding taxes and disbursements, incurred by the IESO on a partial indemnity basis) plus $93,899.06 for disbursements (which is equal to the disbursements incurred by the IESO). This would result in an award of partial indemnity fees and disbursements of $817,794.62, plus HST (for a total of $924,107.92).

[12] The IESO proposes that these costs be divided between the Suppliers in proportion to the total costs and disbursements they seek:

a. Potentia: $384,363.47 (47% of $817,794.62), plus HST;

b. Prism: $220,804.55 (27% of $817,794.62); and Solar Sky: $212,626.60 (26% of $817,794.62) - Total (Solar Sky and Prism): $433,431.15, plus HST.

[13] This suggested amount is less than half of what the Suppliers are claiming on a partial indemnity basis.

Principles to Consider in Awarding Costs

[14] The parties rely upon the same guiding principles that they ask the court to apply in determining the costs to be awarded to the Suppliers:

a. The goal of an award of costs is to produce a result that is fair and reasonable in all the circumstances of the matter for the losing party to pay: see Boucher v. Public Accountants Council (Ontario), at paras. 24-26.

b. Rule 57.01(1) lists a broad range of factors that the court may consider in exercising its discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, in making an award of costs.

[15] It is important to keep in mind when exercising the broad discretion in fixing the costs to be awarded that the overall objective is to order an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: see Boucher. See also Aptex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, at para. 61.

[16] This approach is further underscored by the following principles set out in the decision of the Divisional Court in Anderson v. St. Jude Medical Inc. (“St. Jude Medical"), at para. 22:

a. The discretion of the court [under s. 131 of the Courts of Justice Act] must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1).

b. A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant.

c. The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: rule 57.01(1)(0.b).

d. The court should seek to avoid inconsistency with comparable awards in other cases. "Like cases, [if they can be found], should conclude with like substantive results": Murano v. Bank of Montreal (1998), 41 O.R. (3d) 222 (C.A.), at p. 249.

e. The court should seek to balance the indemnity principle (Rule 57.01(1)(0.a)) with the fundamental objective of access to justice.

[17] The proper approach is for the court to first examine the r. 57 factors and submissions of the parties on costs and then step back to consider what is fair, reasonable and proportionate in all of the circumstances. See Restoule v. Canada (AG), 2021 ONCA 779, at paras. 356–357, citing Murano.

Analysis

[18] The r. 57 factors most relevant to the determination of the fair and reasonable amount of costs to order the IESO to pay to the Suppliers will be addressed first. The r. 57 factors can impact both the scale and quantum of costs, although in this case only the quantum is at issue as all agree that partial indemnity is the appropriate scale.

The Importance of the Issues and Amounts at Issue: r. 57.01(1)(a) and (d)

[19] Until the hearing of the applications, the IESO had held out the prospect that the Suppliers' FIT 1 Contracts might be terminated as a result of their failure to give notice to, and seek consent from, the IESO for the Optimizations. The Suppliers approached these applications as "bet-the-farm" litigation. That was not unreasonable for them to do as their FIT 1 Contracts were at stake, and those contracts still had approximately ten years left on their existing terms. Losing their FIT 1 Contracts (with or without the inclusion of the Optimizations) would have been a significant loss to them.

[20] The individuals who are behind Prism and Sky Solar had their livelihoods and significant investments at stake. The Potentia Entities, representing the Potentia Sample FIT 1 Contracts under the umbrella of their parent, Potentia Renewables Inc., likewise had significant investments at stake. The applications could have impacted not only their contracts, but the 182 other FIT 1 Contracts that their affiliates had invested in.

[21] These applications were equally important to the IESO because of the number and duration of the FIT 1 Contracts, beyond those directly at issue on these applications. There are more than 800 FIT 1 Contracts currently in force in Ontario. The IESO warned in its submissions that a favourable outcome to the Suppliers could result in Ontario ratepayers (whose interests the IESO says it is seeking to protect) paying an additional $4.29 billion to the FIT 1 Contract suppliers through to the end of their contract terms.

[22] There were high stakes and important issues involved for both sides.

The Complexity of the Applications: r. 57.01(1)(c)

[23] The complexity of these applications is evident from the number of issues raised and canvassed in the court's FIT 1 Contract Decision. It is also evident from the extent of evidence on both sides, including numerous fact witnesses and experts, many of whom gave evidence about the legislative, political, and factual context underlying the FIT Program. There were extensive productions (a cost that the IESO says was unnecessarily incurred at the insistence of the Suppliers) and cross-examinations.

[24] This all culminated in a two-day hearing that was only possible to complete in that time frame because of all the work that was done by counsel on both sides in advance of the hearing. The issues were more complex than would be typical of a normal application involving the interpretation of a standard form contract.

What the Unsuccessful Party Could Reasonably Expect to Pay in Costs: r. 57.01(0.b)

[25] The starting point for the consideration of costs of proceedings is the hourly rates and number of hours billed by the lawyers involved. The parties were all represented by experienced Bay Street law firms whose standard hourly rates would be normally aligned.

[26] One benchmark of what the IESO could reasonably have expected to pay in costs is what it paid to its own lawyers and claimed in its own Bill of Costs. However, that is not the only benchmark, and it is complicated in this case by the fact that the IESO appears to have benefited from discounted rates offered by the law firm that represented it in these (and other FIT contract) applications. The details of the billing arrangements for the discount were not provided, but it is not denied that the hourly rates indicated for the lawyers who worked on these applications at the Lenczner Slaght law firm were discounted from their usual hourly rates. It is reasonable to infer that those rates would otherwise have been more in line with the rates charged by the law firms representing the Suppliers.

[27] While the IESO may benefit from a good bargain with its external litigation counsel, opposing parties' costs cannot be scrutinized through the lens of the IESO's bargain. This is so particularly because it is a bargain that remains secret as the IESO refused to produce their detailed redacted bills or details about their billing arrangement (even after the Suppliers offered reciprocal disclosure).

[28] In this case, because the IESO's lawyers discounted their usual hourly rates, the total number of hours is a better comparator or benchmark to consider when assessing what could be reasonably expected by the IESO in terms of the costs that might be awarded against it. The total hours billed by each law firm are within a reasonable margin of each other, and are estimated as follows:

a. the IESO's bill of costs shows approximately 1,952 total hours of work;

b. Prism's and Solar Sky's bills of costs, together, show approximately 1,950 total hours of work; and

c. the bill of costs of Potentia Entities shows approximately 1,436 hours of work.

[29] The total number of hours of work for the law firm representing the IESO is only 57% of the total number of combined hours of work of the two law firms representing the Suppliers. The Suppliers say this is not the result of their duplication of efforts or inefficiency, but rather a function of the fact that they had a higher learning curve than the lawyers for the IESO did. They claim that because the IESO's lawyers have represented the IESO on other FIT Contract matters and had used the same internal witness on at least one other matter the, IESO's lawyers were more efficient. From the Suppliers' perspective, that does not mean that their lawyers were inefficient for not having the benefit of that prior experience. This was the Suppliers’ lawyers' first introduction to this area which involved a factual matrix that was imbued with government policy, legislative context and a long history of dealings, in addition to the need for expert input.

[30] The Suppliers maintain that they did co-ordinate their efforts and attempt to avoid duplication between the two law firms (for example, designating which firm would take the lead on different aspects of the pre-hearing steps and the written and oral submissions). However, neither of their law firms had the depth or history of experience in dealing with the FIT Contracts that the law firm representing the IESO had.

[31] I agree that it is not surprising, or objectively unreasonable, that the total hours spent by the law firms acting for the Suppliers would be significantly higher than the total hours spent by the law firms acting for the IESO. However, the court still must be satisfied that it was reasonable, appropriate and proportionate for them to have worked almost twice the number of hours (and could have been reasonably anticipated by the IESO), even accounting for the steeper learning curve that they inevitably would have had.

[32] The IESO also notes that, even if the hourly rates are not challenged as unreasonable per se, the relatively higher number of hours of senior counsel for the Suppliers accounts for some of the overall fee discrepancy. Mr. Sarabia (senior counsel at Davies) billed a total of 537.5 hours for the Potentia Entities. The most senior counsel for Prism and Solar Sky, Ms. Barton, billed a total of over 450 hours. Comparatively, the IESO's most senior counsel, Ms. Jilesen, billed 168.9 hours for all of the applications. While parties may staff their files as they see fit, the court is entitled to objectively assess each party's allocation of work amongst timekeepers, including the division of labour between senior and junior counsel. see Health Generic Center Corp (Health Genetic Center) v. New Scientist Magazine, 2019 ONCA 576, 49 CPC (8th) 39, at para. 23.

[33] In the context of these applications, there does appear to be a disproportionate number of total hours of work done by the law firms for the Suppliers, as compared to the law firm for the IESO. This is true even accounting for the greater learning curve of the Suppliers' counsel which could have been reasonably anticipated (even with the assistance that the Suppliers' lawyers received from former IESO employees who were witnesses for the Suppliers and from the industry experts that they engaged). There may also have been a disproportionate number of hours worked by senior counsel relative to junior counsel at the law firms for the Suppliers, although some of that would be rolled up in the learning curve, which applies to all counsel.

[34] As was noted in St. Jude Medical, (at para. 22, citing Murano at p. 249), costs awards in other "like cases" can be another benchmark of what a losing party could reasonably expect to pay in costs.

[35] The IESO points to other cases in recent years in which partial indemnity costs in the range of $200,000 or less were ordered for two-day hearings in complex, high stakes cases. For example in Urban Mechanical Contracting Ltd. et al v. Zurich Insurance Company Ltd., 2021 ONSC 2535 (costs decision unreported). See also: Corber v. Henry, 2019 ONSC 4304 at para. 7 (1-day hearing, costs doubled for 2 days and adjusted for inflation: $156,413.44, without any deduction for the small portion of these costs that were awarded on a substantial indemnity scale); and Niagara Resorts Inc v. 1086868 Ontario Ltd., 1999 CarswellOnt 2087 (2-day hearing, 1999 GST rate applied and adjusted for inflation: $70,525.97). No example of an award of costs even close to $2 million was made in any comparable two-day matter. As another benchmark, I recently awarded substantial indemnity costs of $1 million to the successful party for an eight-day trial (see Tridelta Investment Counsel Inc. v. GTA Mixed-Use Developments GP Inc., 2024 ONSC 3543).

[36] There is no precise science to this, but some discount from the total partial indemnity fees claimed by the Suppliers to take into account the above considerations is appropriate and will be applied in the overall amount to be awarded, as detailed later in this endorsement.

Balancing the Principle of Indemnity with Access to Justice

[37] The principle of indemnity does not mean that the goal is to try to indemnify the successful party for their actual costs. An award of partial indemnity costs is a fair application of the principle of indemnity under Rule 57.01(1)(0.a). The amount need not be based on a precise mathematical extrapolation from the hourly rates multiplied by hours worked and discounted by some factor. In this case, the criticism that the IESO has levied is not over the percentage used to extrapolate the partial indemnity costs from the full indemnity or actual fee amounts. Its criticism is with respect to the starting point amount of the actual fees claimed, which are said to be excessive, disproportionate and unreasonable.

[38] Conversely, there are no access to justice considerations at play in this case. There is no suggestion that the IESO does not have the resources to pay their own costs and to pay any ordered adverse costs.

Conduct That May Have Shortened or Lengthened the Applications: r. 57.01 (1) (e)

[39] The efforts of all counsel to maximize procedural efficiencies were evident. All five applications were heard together and based on a common evidentiary record. Moreover, the matter was fully briefed and heard within eight months after the issuance of a procedural order confirming the joint hearing. The IESO criticizes the Suppliers for seeking extensive documentary production which it alleges unduly complicated matters and added to the costs. The Suppliers accuse the IESO of not articulating the basis for its position clearly until its factum filed on the applications, causing them to have to run down a myriad of possible theories from an evidentiary and legal perspective rather than being able to focus on the primary basis eventually articulated by the IESO.

[40] Overall, these applications were litigated efficiently, albeit with a lot of work that went into getting them ready so that they could be heard in the two days scheduled. The other, competing, accusations regarding matters that may have led to some additional costs are not readily quantifiable and can be treated as cancelling each other out. So, although considered, this is not a factor that has impacted the costs assessment.

Stepping Back to Consider the Costs Overall

[41] Having considered the r. 57 factors and the submissions of the parties on costs, I now must step back to consider what is fair, reasonable and proportionate in all of the circumstances. see Restoule at paras. 356–357.

[42] The court recognizes that this case involved multiple applications and two law firms for the Suppliers, and the efforts of those firms to avoid duplication, and to streamline the significant work that all counsel put into getting these applications ready and able to be heard in two days. However, the total partial indemnity costs claim of approximately $2 million are not fair, reasonable, proportionate or appropriate to order the IESO to pay in this case.

[43] Using the total hours (as opposed to total fees) comparison and recognizing that there was a steeper learning curve and two sets of counsel for the Suppliers, adding 50% more hours to the total IESO hours would allow for approximately 2,900 total hours (compared to the IESO's total hours of 1,952). Applying the lowest average hourly rate of the Suppliers' counsel of $454 (which is almost double the average discounted hourly rate of the IESO's counsel of $256) to address the concerns about disproportionately more hours being docketed by senior counsel for the Suppliers still amounts to fees of approximately $1.3 million. On top of that, the Suppliers would still be asking the court to add their approximately $270,000 in claimed disbursements (discussed below), for a rough total of $1.6 million. This is still significantly more than the total amount the IESO proposes be awarded in fees and disbursements, of $817,794.62 (all of these numbers exclude taxes which would have to be added on to them).

[44] This exercise of determining costs is inherently imprecise. The court recognizes that there needs to be a discount on a general principled basis but will not get into a line by line or task by task or hour by hour review of the costs claim by each party. That is not the court's role when determining the quantum of costs to award.

[45] To arrive at a number, I have taken the fee amount of $1.3 million (calculated per the above approach) and split the difference between that and the amount proposed by the IESO for the Suppliers' fees ($723,895.56), because the $1.3 million amount still seems high for a two-day hearing. This results in an aggregate amount for fees to be paid to the Suppliers of $1 million. This amount is still on the high end for a two day hearing, but this was a unique case of multiple applications being joined to be heard together in a streamlined process that essentially front end loaded the work for what would likely otherwise have been a much longer hearing.

[46] In the exercise of my discretion, having considered all of the applicable factors and the submissions of the parties, I have determined that an award of $1 million is a fair, reasonable and proportionate amount of partial indemnity legal fees for the IESO as the unsuccessful party to pay to the Suppliers. That amount accounts for all of the circumstances of this case, which was hard fought "bet the farm" litigation that entailed a significant amount of work by responsible counsel who worked hard to have the multiple cases ready and heard in the allotted time.

[47] The Suppliers can agree otherwise, but if they fail to agree, the split proposed by the IESO based on the relative amount of costs they each claimed would entitle Potentia to 47%, Prism to 27% and Sky Solar to 26% of the aggregate $1 million in fees.

Disbursements

[48] There are two primary challenges to the aggregate disbursements of $270,000 claimed by the Suppliers.

[49] First, the IESO submits that one of the Suppliers' experts (Mr. Goulding) was too expensive. The court is not in a position to evaluate this or what accounts for the differences in what he billed compared to what the other experts billed. This expert's industry qualifications are not challenged.

[50] The IESO is right that an unsuccessful litigant is not obligated to pay unreasonable or extravagant disbursements. Yip v. HSBC Holdings plc, 2018 ONCA 626, at paras. 89 and 91; see also Hamfler v. Mink, at para. 14. However, just because one side's expert charged more fees than the other side's expert(s) does not mean that the expert's fees were unreasonable.

[51] The need for an industry expert was enhanced in this case because of the learning curve for the Suppliers on some of the history and workings of the FIT 1 Contracts. As long as the Suppliers can certify that there are invoices from Mr. Goulding's firm supporting the amounts claimed that are referable to these applications, I am not going to discount the disbursement amount claimed for this expert. If ascertainable, I would only disallow the small amount referable to the supplementary report that this expert had to prepare to correct an error in the data he was provided with.

[52] Second, the IESO challenges the Suppliers' claimed disbursements to pay the 'agent’ fees of their witness Mr. MacDougall, who is also an industry consultant and a former IESO employee. These amounts include $3,394.52 claimed by Potentia for Mr. MacDougall's fees, and $11,936.80 claimed by each of Prism and Solar Sky for Mr. MacDougall's fees.

[53] The Suppliers maintain that it is open to the court to award these agent fees to them as part of their claimed disbursements under s. 131 of the Courts of Justice Act and rule 57.01(1), which make clear that an award of costs is discretionary and a court is not bound to limit attendance fees based on a tariff that has not been updated since 1990: see Degroote v. DC Entertainment Corp., 2014 ONSC 63, at para. 27.

[54] The IESO argues that, while the Suppliers were free to make whatever arrangements they deemed appropriate to compensate Mr. MacDougal for his time spent on this case, only the prescribed amount of attendance money payable to this witness is recoverable in costs from them: see Dominion Construction Co v. Keewatin-Patricia District School Board, at pp 2-3; See also Mark M. Orkin, Robert G. Schipper Orkin on The Law of Costs, 2nd Ed. (Toronto: Thomson Reuters, 1987), at §2:163, Disbursements - Expert Witness Fees.

[55] While I may have the discretion to award the agent fees paid to Mr. MacDougal by the Suppliers, I am not prepared to exercise my discretion to do so in this case. He wore multiple hats and had been hired by the Suppliers as a consultant before these applications were commenced. He is a former IESO employee. In the circumstances of this case I do not consider it to be appropriate to require the IESO to pay the claimed disbursement associated with his agent fees.

Final Disposition on Costs

[56] In the exercise of my discretion under s. 131 of the Courts of Justice Act, and having regard to the relevant factors under Rule 57, I am fixing the Suppliers' partial indemnity costs of the applications in the amount of $1 million plus HST in total fees and disbursements of $270,000 plus any applicable taxes, less the MacDougal agent fees and less the amount for the error correction in the Goulding report. This also happens to roughly be the mid-point between the two sides' positions on costs, although the analysis to arrive at this costs award was much more involved than simply taking the mathematical average of the two proposed total amounts.

[57] This endorsement and the orders and directions contained in it shall have the immediate effect of a court order without the necessity of a formal order being taken out, although any party may take out a formal order by following the procedure under r. 59.

KIMMEL J. Date: August 26, 2024

Footnotes:

[1] The IESO is the successor entity to the Ontario Power Authority (“OPA”), and became so when the two entities merged in 2015. The IESO is the current counterparty to the FIT 1 Contracts.

[2] Those other applications have now been adjourned pending the outcome of the IESO's appeal of these applications.

[3] These amounts were presented in updated Bills of Costs included with the Suppliers' costs submissions, which were slightly different than the amounts claimed in the Suppliers' Bills of Costs delivered after the hearing but prior to the release of the decision: Potentia had claimed $988,998.01 (now claims $1,010,273); Prism had claimed $599,905.60 (now claims $585,613); Solar Sky had claimed $564,298.95 (now claims $550,006). The reduced amounts were to adjust for a double counting error.