Hello for another week.
Following are this week’s summaries of civil decisions released by the Court of Appeal. Topics covered include contract issues, insurance, environmental regulations, summary judgment and oppression. For me, the most interesting decision was a very short decision in Miller Canfield v BDO Dunwoody. The decision highlights the importance of understanding the difference between contract repudiation and contract termination. Repudiation does not necessarily result in termination. The innocent party can elect to accept the repudiation and terminate the contract or it can refuse to accept the repudiation and continue to hold the contract open. In this case, BDO retained Miller Canfield to perform legal work under a contingency fee retainer agreement which provided that if BDO terminated the agreement, it would be responsible for Miller Canfield’s fees incurred to that point under a formula set out in the agreement. A dispute arose under the retainer agreement as to whether Miller Canfield was responsible to pay for appellate counsel who had been appointed to argue an appeal in the matter. Miller Canfield refused to pay for separate appellate counsel and BDO took the position that this was a repudiation of the retainer agreement. BDO decided to accept the repudiation and terminated the retainer agreement with Miller Canfield. This was a costly decision. Without deciding whether Miller Canfield had repudiated the retainer agreement by refusing to pay appellate counsel’s fees, the Court of Appeal found that by accepting the repudiation and treating the contract as at an end, BDO had terminated the retainer agreement and was responsible to pay Miller Canfield’s fees. What BDO should have done was continue under the retainer agreement and paid appellate counsel’s fees under protest, leaving the issue of who was ultimately responsible for those fees to another day.
Have a nice weekend.
[Weiler, Cronk and Benotto JJ.A.]
Sergiy Timokhov, for the appellant
John J. Longo and Patrick Copeland, for the respondent
Keywords: Contracts, Breach, , Mutual Mistake, New Argument on Appeal
The appellant, Toronto Muslim Cemetery Corporation appeals from the judgment granted by the application judge, i) declaring that the document signed by the parties on May 13, 2014, is the formal agreement referred to in the Memorandum of Understanding and that it binds the parties; and ii) directing that the May agreement be rectified by the removal therefrom of clause 7(7), which read: “within 4 weeks, a formal agreement shall be made between the parties” (the “Formal Agreement Clause”).
- Did the application judge err by holding that the May Agreement constitutes a final and binding contract between the parties?
- Did the application judge err by granting rectification of the May Agreement based on mutual mistake regarding the inclusion of the Formal Agreement Clause?
- Did the respondent, Muslim Green Cemeteries Corporation breach the May Agreement?
Holding: Appeal Dismissed.
(1) The application judge did not err in holding that the May Agreement constitutes a binding contract between the parties. The court held that the conduct of the parties both at the time of the formation of the May Agreement and in its immediate aftermath was consistent with the intended finality and binding nature of the May Agreement. The court agreed with the application judge’s reasoning and conclusion. He held that language of the May Agreement and the parties’ own conduct at the time of and following the execution of the agreement belied the assertion that by May 2014, solicitor involvement remained a condition precedent to the creation of a binding agreement between the parties.
(2) On the issue that the application judge erred by applying the wrong test for rectification, this argument arises from the inclusion of the Formal Agreement Clause in the May Agreement. The court held that the application judge reviewed the various draft memoranda of understanding between the parties and the documents entered into by them prior to execution of the May Agreement. The court held that the authorities relating to unilateral mistake relied on by the appellant were irrelevant. The court saw no error in the application judge’s finding that the relevant test is the test applicable to mutual mistake.
No. The final ground advanced by the appellant concerns the respondent’s alleged breach of the May Agreement. As the appellant conceded, this argument formed no part of its case or argument before the application judge. Instead, the appellant raised it for the first time on appeal. As a result, the evidentiary record on this issue is incomplete, at best. Further, the court does not have the benefit of any findings by the application judge on the issue, and the respondent has had no opportunity to respond to the breach claim or to lead evidence to address it. The court agreed with the application judge’s ruling, and therefore the appellant must live by the bargain it made..
[Sharpe, LaForme and van Rensburg JJ.A.]
John Parr Telfer, for the appellants
Miriam Vale Peters, for the respondent
Keywords: Estates, Solicitor and Client, Assessments of Accounts, Solicitors Act, s.33(4), Costs, Rules of Civil Procedure, Rule 48.15(6), Mediation, Rule 24.1.14, Interim Preservation of Property, Rule 45, Interest, Courts of Justice Act, ss 127 and 128
Facts: The appellant solicitors appealed an assessment ordering them to repay $73,000 plus costs to their former client. First, the appellants submitted that the trial judge erred by considering and relying on an expert report which he ruled to be inadmissible. Second, the appellants submitted that the trial judge erred by failing to dismiss the assessment on the grounds of delay pursuant to Rule 48.15(6)2. Finally, the appellants took issue with the trial judge’s reference to a mediation between the parties, the trial judge’s decision to limit the reduction in the appellants’ accounts to the fees charged for the Rule 45 motion and the interest awarded.
Issues: Did the trial judge err in the assessment?
Holding: Appeal and Cross-Appeal Dismissed.
Reasoning: No. The trial judge was entitled to make his own independent evaluation of the skill and competence demonstrated by the solicitors. In doing so, he did not make improper use of the expert report. Moreover, Rule 48.15(6)2 applied to actions, whereas this matter was a reference pursuant to the Solicitors Act. While the trial judge did refer to the mediation, he did not violate the confidentiality provisions of Rule 24.1.14 in doing so as there was no violation of the confidentiality that protects settlement discussions between the parties.
The Court also found no basis to interfere with the trial judge’s decision to limit the reduction in the appellants’ accounts to the fees charged for the Rule 45 motion. It was open to the trial judge to conclude that there was a live issue to be resolved in the action regarding certain payments. Finally, the Court held that interest is a discretionary matter pursuant to s.33(4) of the Solicitors Act, and the Court saw no error of law or principle on the part of the trial judge in ordering it at the rate prescribed by the Courts of Justice Act.
[Laskin, Cronk and Miller JJ.A.]
Eric Gillespie and Karen Dawson, for the appellant
Sandra Nishikawa and Domenico Polla, for the respondent
Keywords: Environmental Law, Sale of Pesticide, Pesticide Act, Regulation 139/15, Civil Procedure, Rules of Civil Procedure, Rule 14.05(3)(d), Determination of Rights Under Statute, Stay of Regulation Pending Hearing, Motion to Strike, No Reasonable Cause of Action, Rule 21, Justiciable Issue
The appellant, Grain Farmers of Ontario (“GFO”) represents Ontario farmers who rely on seeds treated with neonicotinoids (the “Pesticide”), a pesticide that protects crops against harmful insects. The Pesticide can have a toxic effect on bees and other pollinators. Because of the toxic effect of the Pesticide, Ontario amended Regulation 139/15 (the “Regulation”) made under the Pesticides Act (the “Act”) in an effort to sharply reduce its use. GFO contends the Regulation will produce little benefit and significantly hurt the ability of its members to protect their crops from damaging insects.
GFO brought an application for a declaration interpreting the Regulation under r. 14.05(3)(d) of the Rules of Civil Procedure and a motion for a stay of the Regulation pending the determination of the application. The motion judge granted the cross-motion of the respondent, the Ontario Ministry of the Environment and Climate Change, to strike out GFO’s Notice of Application as disclosing no reasonable cause of action and dismissed GFO’s application and stay motion.
At issue is the motion judge’s holding that the GFO was seeking to re-write the Regulation and this was not a determination of rights arising from the interpretation of the Regulation.
- Does the Regulation affect property rights?
- Has GFO identified a justiciable issue?
Holding: Appeal dismissed.
(1) No. It is not necessary to decide whether the Regulation affects property rights. GFO argued that the motion judge erred by characterizing GFO’s claim as “one of economic rather than property rights.” Nothing is added to GFO’s argument by identifying property rights specifically. It is enough that the Regulation affected any of the farmer’s rights. The motion judge concluded that the Regulation does not affect property rights but did not conclude that it does not affect the farmer’s legal rights at all.
The Regulation narrows a farmer’s legally permitted options to purchase treated seeds and so affects the farmer’s rights in that sense. However, “the limitation of a right does not, standing alone, create a justiciable issue”. A liberty can be narrowed or extinguished by a constitutionally valid statute or regulation.
(2) No. The motion judge did not err in striking the application on the basis that it presented no genuine issue for determination. GFO was incorrect in arguing that Rule 14.05(3)(d) provides free-standing jurisdiction where an interpretative question is raised. Rule 14.05(3)(d) is procedural in nature and allows a court to assume jurisdiction but does allow a court to create it. Rule 14.05(3)(d) does not expand the court’s jurisdiction to grant declaratory relief on the basis of a free-standing challenge to the wisdom or fairness of governmental action.
As required under Rule 21, the judge accepted the facts as pleaded that the Regulation will create hardship for the farmers represented by GFO. Even if true, the remedy sought by GFO is solely within the powers of the legislative and executive branches of government. The GFO did not identify any ambiguities in the Regulation. GFO is requesting the court to rewrite a regulation of general application on the basis of the alleged unfairness of the Regulation in an attempt to alleviate the burden on its members.
[Laskin, Hourigan and Brown JJ.A.]
James Jagtoo and Frances Jagtoo for the appellant
Rebecca Gosevitz for the respondent.
Keywords: Insurance, Coverage, Life Insurance, Accident, Suicide, Summary Judgment, Genuine Issue Requiring Trial, Evidence, Rules of Civil Procedure, Rule 20.04(2.1), Fact Finding Powers
Isaac Peters (“Isaac”) died from injuries after he fell from the balcony of his twelfth floor apartment. His mother, Chanderdai Peters (the “Appellant”), is the Estate Trustee of Isaac’s Estate. The Appellant commenced an action claiming payment of an accidental death benefit pursuant to a group policy (the “Policy”). Desjardins Financial Security Life Assurance Company (the “Respondent”) issued the policy to Metro Ontario Inc. (“Metro”), Isaac’s employer at the time of his death. The Respondent denied coverage and the Appellant sued the Respondent under the Policy and Metro for alleged misrepresentations in its brochure about the Policy.
The Respondent successfully brought a motion for summary judgment to dismiss the action, arguing that the Appellant could not meet her burden of proving that Isaac’s death was caused by accident. In the alternative, the Respondent relied on the suicide exclusion contained in the Policy.
The motion judge applied Hyrniak v Mauldin, 2014 SCC 7 and found that there was a genuine issue requiring a trial to determine if Isaac died accidentally, as there was evidence supporting both accident and suicide. However, the motion judge resorted to his fact-finding powers set out in R. 20.04(2.1) of the Rules of Civil Procedure in concluding that the Appellant could not prove, on a balance of probabilities, that her son’s death was an accident. The action was dismissed against both the Respondent and Metro.
The Appellant appealed the dismissal of the action.
- Did the motion judge adequately consider and assess the evidence that supported the conclusion that the cause of death was by accident?
- Did the motion judge err in dismissing the claim against Metro?
Holding: Appeal allowed in part.
- Yes. There were no significant credibility issues on the evidence. While the motion judge addressed that the police and Coroner’s reports, which had credibility issues, he did not consider the conclusions in those reports in his analysis.The motion judge carefully considered the evidence and drew available inferences. The motion just did not have to advert to every piece of evidence that might have supported the conclusion that death was caused by accident. The Appellant could not prove that Isaac’s death was caused by accident. The claim under the Policy was therefore properly dismissed.
- Yes. The claim against Metro was not under the Policy but for alleged misrepresentations about the Policy. It should not have been dismissed.
[Laskin, Hourigan and Brown JJ.A.]
Myron W. Shulgan, for the appellant
James P. Thomson, for the respondent
Keywords: Solicitors, Retainer Agreements, Contingency Fees, Repudiation, Termination, Summary Judgment
The parties had a contingency fee retainer agreement dated April 30, 2007. Under the retainer agreement, the appellant law firm, Miller, Canfield, Paddock and Stone LLP (the “Law Firm”) agreed to act on behalf of its client, BDO Dunwoody LLP (“BDO”) “in any and all proceedings” BDO intended to commence against certain defendants. The retainer agreement contained a provision entitled “Termination of Legal Services,” which provided that the client, BDO, had the “right, with or without cause, to cancel” the Law Firm’s services. In that event, BDO agreed it would be “responsible to protect and pay the value of all services to date,” and the retainer agreement specified how the value of services would be calculated.
A dispute arose between the parties about whether the Law Firm should pay the cost of retaining outside counsel to appeal a decision in the proceeding BDO had commenced. BDO took the position that the Law Firm’s refusal to accept responsibility for appeal counsel’s fees amounted to a repudiation of the retainer agreement. On June 19, 2012, BDO wrote the Law Firm to advise that BDO accepted the repudiation and directed the Law Firm not to take any further steps on behalf of BDO.
On April 15, 2014, the Law Firm rendered an invoice to BDO in the amount of $427,891.57 for the value of the services rendered to the date of termination of the retainer agreement. There is no dispute over the correct calculation of the invoiced amount. However, BDO brought a summary judgment motion to dismiss the Law Firm’s action to collect its fees. The Law Firm brought a cross-motion for judgment in the amount of the invoice.
The motion judge granted BDO’s judgment and dismissed the Law Firm’s action for payment of its fees. She held that the Law Firm had breached the retainer agreement and the breach amounted to a repudiation of the agreement, but BDO’s acceptance of the repudiation did not amount to a cancellation of services by it.
Issues: Whether the motion judge erred in dismissing the Law Firm’s action against BDO for the payment of fees under the retainer agreement.
Holding: Appeal allowed.
Yes. The court found that the motion judge did not properly apply the law relating to repudiation. A repudiatory breach of a contract does not, in itself, bring an end to a contract. A repudiatory breach of a contract allows the innocent party the right of election to treat the contract at an end. The innocent party must make the election and communicate its decision to terminate the contract to the repudiating party.
The court found that when BDO accepted the Law Firm’s repudiation of the retainer agreement and told it to take no further steps in the proceeding, BDO cancelled the Law Firm’s services within the meaning of the retainer agreement’s termination provision. In accordance with the terms of the retainer agreement, BDO became responsible to pay the Law Firm the value of all services performed to date calculated in accordance with the retainer agreement. The court set aside the motion judge’s order and granted judgment in favour of the Law Firm in the amount of $427,891.57, together with pre-judgment interest, plus $10,000 in costs.
[Epstein, van Rensburg and Hourigan JJ.A]
Peter Griffin and Nadia Campion, for the appellant
Richard Worsfold, for the respondents
Keywords: Corporate Law, Oppression, Summary Judgement, Limitation Periods, Limitations Act, 2002, Ontario Business Corporations Act
The appellant and individual respondents are siblings, except for George Alles. Their late father owned an interest in a television antenna and service company, Tasco, through his holding company Kirby-Maurice Company Limited. Marlba Investments owned the land on which Tasco operated. Marlba, in turn, was owned equally by Kirby-Maurice and another holding company owned by their father’s business partner, Mike Sayer. Mr. Maurice restructured Tasco in the late 1970s. He gave equal interests in Tasco to each of his six children and Mr. Sayer’s six children; preserving voting control for his family by causing the issuance of 54 percent of Tasco’s voting preferred shares to Kirby-Maurice.
In the 1990’s litigation between Maurice and the Sayer families concerning Tasco and Marlba concluded with a settlement that provided for the ownership structure of the two companies. It also specified both families would enter into unanimous shareholder agreements (USA) to govern the business and affairs of each company. The USA’s were never executed but the parties governed themselves according to provisions set out in the settlement agreement.
The Maurice siblings later entered in a USA concerning their interests in Kirby-Maurice. The Kirby-Maurice USA provided, among other things, for a share sale procedure. Critical to this appeal were provisions requiring a shareholder selling their shares in Tasco and Marlba to also sell, at a fair value to be determined by a valuator, his or her shares in Kirby-Maurice.
In 1996, the appellant exercised his right to sell his shares in Tasco and Marlba. The sale of the appellant’s shares in Tasco and Marlba did not close until March 23, 2007, almost 11 years after he first exercised his right under the settlement agreement.
Negotiations between the respondents and a prospective purchaser ultimately led to Tasco and Marlba shareholders (including the respondent siblings and Kirby-Maurice) receiving a letter of intent from a third party with an interest in acquiring their shares in June 2007. The appellant, who was no longer a shareholder of Tasco or Marlba, first learned of the potential purchase in October 2007. He expressed his view that Kirby-Maurice’s 54 percent of the voting preferred shares in Tasco should fetch a premium given that they represented control of the company.
In the meantime, although he had offered his shares in Kirby-Maurice for sale, the appellant remained a shareholder and director of Kirby-Maurice. He received notice of a Kirby-Maurice shareholders’ meeting scheduled for July 25, 2008 to discuss a proposed sale of Kirby-Maurice’s shares in Tasco and Marlba. At the meeting, the appellant was advised of the following: his siblings had sold their shares in Tasco and Marlba; the purchaser was a numbered company; the owner of that company was unknown; Kirby-Maurice’s preferred shares in Tasco were being sold for redemption at face value; and Kirby-Maurice’s nominees to Tasco and Marlba’s boards of directors were resigning.
The appellant opposed the sale. He argued that proceeding without the unanimous consent of the shareholders would breach the Kirby-Maurice USA and that his siblings should obtain a valuation before selling their shares in Tasco and Marlba. After the appellant left the meeting, his siblings approved the sale of Kirby-Maurice’s shares in Tasco and Marlba.
Since the meeting of July 25, 2008, the appellant has requested a valuation of his shares in Kirby-Maurice and, on numerous occasions, requested information relating to how Kirby-Maurice’s preferred shares in Tasco were valued for the purposes of their sale. These requests have been either ignored or refused by his siblings.
In 2013, the appellant’s siblings brought an application for the appointment of a valuator to value the issued and outstanding shares of Kirby-Maurice. The appellant commenced a cross-application against his siblings, George Alles, and Kirby-Maurice, alleging breach of both the settlement agreement and the KirbyMaurice USA, and seeking relief under the oppression remedy section of the Ontario Business Corporations Act, arising out of the sale of Kirby-Maurice’s shares in Tasco and Marlba.
In 2014, the appellant received a copy of the share purchase agreement for the sale of the respondents’ and Kirby-Maurice’s shares in Tasco and Marlba dated August 1, 2008, as part of the respondents’ disclosure.
As the appellant only learned of his oppression claim for legal fees paid by Kirby-Maurice through information produced by the respondents in 2014, the motion judge held that this claim was not statute-barred. However, this payment of legal fees by Kirby-Maurice would only be oppressive to the appellant if Kirby Maurice did not have sufficient funds to purchase the appellant’s shares at the price determined by the valuator. The motion judge granted the respondents’ motion for the valuator’s appointment.
The cross-application was to be determined as a mini-trial before the application to appoint a valuator. The respondents brought a motion for summary judgment to dismiss the claims in the cross-application as being statute-barred and for the valuator’s appointment. The appellant brought a motion requiring the respondents to reimburse Kirby-Maurice for legal fees the corporation paid on the respondents’ behalf in connection with the ongoing disputes with the appellant from 2008 onward.
The motion judge dismissed all of the appellant’s oppression claims as statute-barred, except the one related to the payment of legal fees, which was dismissed because that would only have constituted oppression if Kirby-Maurice did not have sufficient funds to purchase the appellant’s shares at the price determined by the valuator. The motion judge granted the respondent’s application to appoint the valuator.
For the purposes of the appeal, the issues to be determined are whether the motion judge erred in:
- granting summary judgment in the context of an application; and
- finding that the limitation period applicable to the appellant’s oppression remedy claim had expired.
Holding: Appeal allowed.
- No. The court considered that since neither party objected to the use of the summary judgment procedure and that both fully participated in the motion, any error in disposing of the limitation period issue by way of motion for summary judgment was merely a procedural defect that caused no prejudice to the parties. The court chose not to interfere with the motion judge’s decision on this procedural ground.
- Yes. The court confirmed that an oppression remedy claim under the OBCA is subject to the general two-year limitation period set out in the Limitations Act, 2002. In the present case, the respondent’s act of selling their common shares in Tasco and Marlba would not qualify as oppressive conduct per se. The potential oppressive conduct that arises from this transaction is twofold. First is the failure of the respondents to provide the appellant with the requested information regarding the transaction. Second, the transaction itself may qualify as actionable oppression if it adversely impacted the value of the appellant’s shareholding in Kirby-Maurice. The court held that the motion judge erred in law in concluding that the appellant’s oppression claim was out of time.
[Hoy A.C.J.O., Blair and Roberts JJ.A..]
Karim N. Hirani and James B. Tausendfreund, for the appellant
Philip Pollack, for the respondent
Keywords: Insurance Law, Coverage, Termination of Policy, Statutory Conditions–Automobile Insurance, O. Reg. 777/93, Section 11(2), Insurance Act, Section 22(2), Elevated Onus, Clear and Unequivocal, Summary Judgment, Hearsay, Business Records
At issue is whether the defendant in a motor vehicle action had cancelled her automobile insurance policy with the respondent, State Farm Mutual Insurance Company, before the accident occurred. Under Section 11(2) of Statutory Conditions–Automobile Insurance, O. Reg. 777/93, a regulation under the Insurance Act, a “contract may be terminated by the insured at any time on request”.
At the motion for summary judgment, the judge found that the defendant had terminated her automobile policy with the respondent. The motion judge was not convinced that s. 22(2) of the Insurance Act imposed an elevated onus on the respondent to prove that the cancellation was “clear and unequivocal” but found that this elevated onus was met regardless. As a result of this finding, the plaintiff was covered under the uninsured motorist coverage of the plaintiff’s policy with the appellant, Economical Insurance Group. The motion judge granted summary judgment in favour of the respondent dismissing the claim against it under the terminated policy.
Did the motion judge err in:
- concluding that there was no onus on the respondent to prove that the cancellation was “clear and unequivocal?
- committing a legal error by relying on what it says is inadmissible hearsay evidence in the respondent’s evidence?
- failing to draw an adverse inference against the respondent because it did not adduce affidavit evidence of the defendant confirming that she had cancelled the policy?
- commit a palpable and overriding error in concluding that the policy was cancelled and not in effect on the date of the accident?
Holding: Appeal dismissed.
- No. It was not necessary to address whether there is an elevated onus on the respondent to prove that the cancellation was “clear and unequivocal” because the motion judge found that even if there is an elevated onus, the respondent had met that onus. The motion judge relied on the evidence of an underwriter with the respondent that showed that before the accident had occurred, the defendant requested that her policy be cancelled and the respondent replied with an Acknowledgment of Cancellation Request that indicated the effective date of cancellation.
- No. It is not appropriate to argue for the first time on appeal that the respondent’s evidence amounted to inadmissible hearsay. Regardless, it was admissible via the business records exception.
- No. The appellant did not adduce evidence to suggest that the defendant was insured by the respondent on the date of the accident and the defendant never denied that she cancelled her insurance before the accident.
- No. The record supports the motion judge’s conclusion that the policy had been terminated and was not in effect on the date of the accident.
Weiler, Cronk and Benotto JJ.A.
Matthew Tubie, for the appellant
David Campbell, for the respondent
Keywords: Estates, Powers of Attorney, Fraud, Accounts, Rules of Civil Procedure, Rules 14.05 and 74, Costs
The appellant is the sole surviving relative of her aunt, Mary Simpson, who died intestate. The appellant applied under r. 14.05 of the Rules of Civil Procedure for declaratory relief concerning Mary’s estate, including the respondent’s brief role when he was Mary’s Power of Attorney. The appellant alleges that the respondent’s Power of Attorney was fraudulently obtained and he had no authority to be the beneficiary of Mary’s life insurance policy.
The appellant brought an application to obtain an account of the respondent’s activities under the Power of Attorney and how the money he collected had been used. The application judge dismissed the application.
The appellant appeals the decision. She argues, primarily, that the application judge erred by dismissing the application on the basis that the appellant failed to apply for relief under r. 74 rather than r. 14.05.
Issues: Did the application judge err in dismissing the application?
Holding: Appeal dismissed.
No. The application judge did not make any errors in her decision.
The application judge did not base her decision on the appellant seeking relief under r. 74 (to be appointed estate trustee without a will). Rather, the application judge noted that r. 74 was available as a procedural route, as there were several routes available to the appellant.
The application concluded that after the respondent received Power of Attorney, he helped Mary with her medical appointments, paid for Mary’s funeral (which exceeded the value of the life insurance policy) and did not claim next of kin or claim against her estate. Furthermore, there was no indication of fraud, the respondent provided an accounting of the insurance proceeds under the policy and there was no reason to declare the Power of Attorney as ineffective and void.
The appellant challenged the fairness of the hearing. A reading of the transcripts reveals the application judge extended every accommodation to the appellant’s counsel.
The appellant made allegations of fraud and serious wrongdoing against the respondent. The conduct of the hearing by the appellant’s counsel lengthened the duration of the hearing, unnecessarily, and warranted a costs award against the appellant.
[Doherty, van Rensburg and Miller JJ.A.]
J.D. Timothy Pinos, Emily Larose and Stephanie Voudouris, for the appellant
James D.G. Douglas and Heather K. Pessione, for the respondents Iroquois Falls Power Corporation, Cochrane Power Corporation, N-R Power and Energy Corporation, Algonquin Power (Long Sault) Partnership and N-R Power Partnership and Kirkland Lake Power Corporation
Crawford Smith and Nick Kennedy, for the respondents Lake Superior Power Limited Partnership, Beaver Power Corporation, Carmichael Limited Partnership and Algonquin Power (Nagamami) Limited Partnership
Glenn Zacher, for the respondents Cardinal Power of Canada, L.P. and MPT Hydro L.P.
Keywords: Contracts, Interpretation, Public Law, Public Utilities, Electricity Rates, Fresh Evidence, Palpable and Overriding Error
These appeals are from judgments rendered in six applications that were heard together. The applications arose from a dispute over the calculation of amounts payable to the respondents by the appellant under long-term contracts for the purchase of electricity generated by the respondents and distributed by the appellant to Ontario consumers. Certain amendments to the contracts contained a price adjustment index to be derived from the aggregate of several specific costs referred to cumulatively as total market costs (“TMC”). The price adjustment index was applied annually as part of the formula used to fix payments to the respondents under the contracts.
The respondents claimed that effective January 1, 2011, the appellant unilaterally changed the calculation of the Global Adjustment Mechanism (“GA”), one component of TMC, in a manner that was inconsistent with the definition of TMC. This change substantially reduced amounts payable to the respondents. The respondents argued that the change in the definition of the GA, which was effected by a new regulation, had nothing to do with the costs of producing or distributing electricity. Instead, it was designed by the government to provide a subsidy to large consumers of electricity to promote various government policies. The respondents further argued that by incorporating the new definition of the GA into TMC, the appellant contravened the agreements and effectively passed the costs of the government subsidy onto the respondents.
The appellant argued that TMC was intended to reflect the price of electricity to certain consumers. It maintained that the revised definition of the GA effected no change in the manner in which TMC was calculated. Instead, it altered the manner in which the GA component of TMC was calculated. The appellant argued that this kind of change to one or more of the components of TMC occurred throughout the contractual relationship. The appellant further submitted that the change was mandated by the government regulation over which the appellant had no control. Finally, the appellant acknowledged that the means of calculating the GA under the new regulation had reduced the amounts payable to the respondents under the agreements. The appellant submitted, however, that the negative impact of the calculation of the GA from the respondents’ perspective was irrelevant to whether the calculation of the GA under the new regulation resulted in a breach of those agreements.
The application judge found for the respondents. He directed that the GA component of TMC should be calculated as it had been before the new regulation came into effect. He also directed that the respondents were entitled to a recalculation as of January 1, 2011 of the amounts owing to them under the agreements.
- Will the court admit three new affidavits filed for the first time on appeal?
- Did the application judge decide the case on a basis not raised or argued by the parties?
- Did the application judge make palpable and overriding factual errors?
- Did the application judge err in the interpretation of TMC?
Holding: Appeal dismissed.
- No. This is not the typical kind of “fresh” evidence application. The appellant did not ask the court to receive evidence not adduced on the application and to decide anew the factual issues determined on the application based on the new evidence. Instead, the appellant attempted to offer evidence on appeal to support the arguments that the application judge decided the applications on a basis not argued by the parties, and that he made factual findings unsupported by the evidence adduced before him. Nothing in the affidavits filed by the appellant could assist the court in deciding either whether the application judge decided the applications on an issue not raised by the parties, or made findings of fact unsupported by the evidentiary record before him. To address and decide the merits of those allegations, the court must focus on the record before the application judge. The interests of justice would not be served by admitting the evidence offered by the appellant on appeal.
- No. The application judge did not identify a new issue in his reasons. Nothing in his reasons, specifically paragraph 74, suggested that the application judge did not appreciate the positions of the parties, or that he saw the essentials of their dispute differently than did the parties.
- No. Some of counsel’s submissions alleging factual errors were not based on the evidence produced in the application record. Instead, the alleged errors were based on evidence contained in the affidavits that were filed on appeal. However, the evidence contained in the affidavits could not assist in deciding whether the application judge made palpable and overriding factual errors based on the record that was before him. Submissions that the application judge fell into fatal error in his processing of the evidence cannot possibly succeed when based on evidence that was not before the application judge. Although the appellant also alleged six other specific factual errors, the application judge did not make any palpable and overriding factual errors.
- No. The application judge did not err in law in his interpretation of TMC. The application judge did not imply a term into the definition of TMC. The language the judge used has to be interpreted having regard to the context in which it was used.
[Laskin, Lauwers and Hourigan JJ.A.]
Richard Stephenson and Michael Fenrick, for the appellants
James Zibarras and Adam Weissman, for the respondent
Keywords: Civil Procedure, Liquidated Claims, Summary Judgment, Set-Off, Appeal Dismissed
[Laskin, Hourigan and Brown JJ.A.]
Peter Callahan, for the appellant
David Hurren and Ashley Gibson, for the respondent
Keywords: Family Law, Joint Custody, Judicial Deference, Appeal Dismissed
[Cronk, Lauwers and van Rensburg JJ.A.]
Justin W. de Vries and Angela Casey, for the appellant
Earl A. Cherniak, Q.C., Jasmine T. Akbarali and Michael S. Deverett, for the respondents
Keywords: Estates, Novel Issue, Costs
Ontario Review Board Decisions
[Doherty, Watt and Miller JJ.A.]
Suzan E. Fraser and Cate Martell, for the appellant
Brock Jones, for the Attorney General of Ontario
Janice Blackburn, for the Person in Charge of St. Joseph’s Healthcare Hamilton
Keywords: Criminal Law, Forcible Seizure of Child, Assault, Absolute Discharge, Conditional Discharge, Not Criminally Responsible, Mental Disorder, Risk to the Public, Appeal Dismissed
[Laskin, Cronk and Miller JJ.A.]
Michael Davies and Meaghan McMahon, for the appellant
Amanda Rubaszek, for the respondent Attorney General for Ontario
Kathryn Hunt, for the respondent Person in Charge of the Centre for Addiction and Mental Health
Keywords: Criminal Law, Possession of Dangerous Weapon, Criminal Harassment, Not Criminally Responsible, Mental Disorder, Risk to the Public, General Forensic Detention, Appeal Allowed
[Strathy C.J.O., Gillese and Pardu JJ.A.]
Sukhpreet Sangha, for the appellant
John Patton, for the Attorney General of Ontario
Janice Blackburn, for the person in charge of Waypoint Centre for Mental Health Care
Keywords: Criminal Law, Facility Transfer Request, Deference, Appeal Dismissed
[MacPherson, MacFarland and LaForme JJ.A.]
Eva Tache-Green, for the appellant
Michael Fawcett, for the respondent
Keywords: Criminal Law, Unlawful Cultivation of Marijuana, Possession of Firearms, Unreasonable Search and Seizure, Exclusion of Evidence, Canadian Charter of Rights and Freedoms, s. 8, s. 24, Appeal Dismissed
[Doherty, Watt and Miller JJ.A.]
Dirk Derstine and Janani Shanmuganathan, for the appellant
Melissa Insanic and Nick Devlin, for the respondent
Keywords: Criminal Law, Conspiracy to Import Cocaine, Possession of Cocaine for Purpose of Trafficking, Unreasonable Search and Seizure, Exclusion of Evidence, Canadian Charter of Rights and Freedoms, s. 8, Appeal Dismissed
[Watt, Hourigan and Huscroft JJ.A.]
James Lockyer and Lance Beechener, for the appellant
Tracy Kozlowski, for the respondent
Keywords: Criminal Law, Second Degree Murder, Blunt Force Injury, Evidence, Forensic Evidence, Circumstantial Evidence, Closing Address, Jury Instruction, Appeal Dismissed
[Strathy C.J.O., Gillese and Pardu JJ.A.]
Jennifer L. Hunter, for the appellant
Kelly Nenniger, for the respondent
Keywords: Provincial Offences Act, Traffic Violation, Deceased Appellant, Mootness, Appeal Abated and Stayed
[Doherty, Watt and Miller JJ.A.]
Erin Dann and Joseph Di Luca, for the applicant
Benita Wassenaar, for the respondent
Keywords: Criminal Law, Sexual Assault, Dangerous Offender, Indeterminate Sentence, Appeal Abandonment, Appeal Reinstated
[Strathy C.J.O., Gillese and Pardu JJ.A.]
Mark C. Halfyard and Breana Vandebeek, for the appellant
Robert Morin, for the respondent
Keywords: Criminal Law, Importing Cocaine, Evidence, Voire Dire, Mistrial Application, Jury Instruction, Appeal Reinstated