Court Of Appeal Summaries (November 4 ' 8, 2024)

• Published date: 15 November 2024
• Subject Matter: Insurance, Government, Public Sector, Litigation, Mediation & Arbitration, Real Estate and Construction, Energy and Natural Resources, Family and Matrimonial, Energy Law, Oil, Gas & Electricity, Family Law, Insurance Laws and Products, Trials & Appeals & Compensation, Human Rights, Libel & Defamation, Construction & Planning, Renewables, Civil Law, Wills/ Intestacy/ Estate Planning
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good evening.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of November 4, 2024.

1797472 Ontario v Independent Electricity System Operator involved the contractual interpretation of agreements for the purchase by IESO (an Ontario Crown corporation) of electricity generated by privately owned solar panels under the government's 'feed-in-tariff' program.

Burjoski v. Waterloo Region District School Board was an appeal from a motion judge's refusal to dismiss a defamation claim under the Anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act. The Court agreed with the motion judge that the defamation claim had merit and reiterated that s. 137.1 of the CJA is designed merely as a screening tool to eliminate only abusive actions. It remains curious why there appears to be an automatic right of appeal from a dismissal of an Anti-SLAPP motion, whereas in the case of the dismissal of a motion for summary judgment, there is no automatic right of appeal.

In Paracha v. Naqi Construction Ltd., the respondents were found by the court below to be investors and part owners in properties for which they had advanced funds to the appellants. The Court dismissed the appeal, affirming the trial judge's findings that the funds were advanced as investments in the properties rather than as loans to the appellants.

Other topics covered this week included several family law decisions, the dismissal of an appeal from a summary judgment ordering payment on a promissory note, enforcement of costs in a defamation action, the dismissal of a motion to review an order made in a medical malpractice action and extension of time to appeal in an estates matter.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

1797472 Ontario Inc. v Independent Electricity System Operator, 2024 ONCA 808

Keywords: Contracts, Interpretation, Standard of Review, Green Energy and Green Economy Act, 2009, S.O. 2009, c. 12, Electricity Act, S.O. 1998, c. 15, Sch A, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 326, EPCOR Electricity Distribution Ontario Inc. v. Municipal Electric Association Reciprocal Insurance Exchange, 2022 ONCA 514, Austin v. Bell, 2020 ONCA 142, Adam v. Insurance Corporation of British Columbia, 2018 BCCA 482, Beaudin v. Travelers Indemnity Insurance Company of Canada, 2021 ONSC 1389, aff'd 2022 ONCA 806, leave to appeal refused, [2023] S.C.C.A. No. 40568, Joaquim v. Intact Insurance Company, 2023 ONSC 5120

Burjoski v Waterloo Region District School Board, 2024 ONCA 811

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP,Courts of Justice Act, RSO 1990, c. C.43, s. 137.1, Human Rights Code, R.S.O. 1990, c. H.19, Education Act, R.S.O. 1990, c. E.2, Canadian Charter of Rights and Freedoms, ss. 2 and 15, Hansman v. Neufeld, 2023 SCC 14, C.F. v. Director of Vital Statistics (Alta.), 2014 ABQB 237, Bent v. Platnick, 2020 SCC 23, Burjoski v. Waterloo Region District School Board, 2023 ONSC 6506, Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, Tamming v. Paterson, 2021 ONSC 8306, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Mondal v. Kirkconnell, 2023 ONCA 523, Marcellin v. London (Police Services Board), 2024 ONCA 468, 40 Days for Life v. Dietrich, 2024 ONCA 599, Hamer v. Doe, 2024 ONCA 721, Ontario Inc. v. Buttar, 2023 ONCA 539, Ciulla v. The Toronto Catholic District School Board, 2021 ONSC 3110, Hilary Young, 'Canadian Anti-SLAPP Laws in Action' (2022) 100:2 Can. B. Rev. 186, Justin Safayeni, 'Anti-SLAPP laws in Ontario: recent trends and lingering uncertainties' (7 May 2024), online (blog):

Paracha v Naqi Construction Ltd., 2024 ONCA 816

Keywords: Real Estate, Contracts, Standard of Review, Oral Agreement, Statute of Frauds, R.S.O. 1990, c. S.19, ss. 4, 9 and 10, Housen v. Nikolaisen, 2002 SCC 33, Svia Homes Limited v. Northbridge General Insurance Corporation, 2020 ONCA 684

Fielding v Fielding, 2024 ONCA 807

Keywords: Family Law, Spousal Support, Child Support, Variation, Material Change in Circumstances, Scheibler v. Scheibler, 2024 ONCA 191, Schulstad v. Schulstad, 2017 ONCA 95

Maceroni v Maceroni, 2024 ONCA 824

Keywords: Family Law, Parenting, Decision-Making, Civil Procedure, Appeals, Fresh Evidence, Costs, Court of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), Van de Perre v. Edwards, 2001 SCC 60, Shipton v. Shipton, 2024 ONCA 624, A.M. v. C.H., 2019 ONCA 764, Palmer v. The Queen, [1980] 1 S.C.R. 759, Barendregt v. Grebliunas, 2022 SCC 22, Maceroni v. Maceroni, 2024 ONSC 3688 (Div. Ct.), Knight v. Knight, 2019 ONCA 538

Wang v Li, 2024 ONCA 819

Keywords: Family Law, Matrimonial Home, Exclusive Possession, Equalization of Net Family Property, Unequal Division, Spousal Support, Family Violence, Civil Procedure, Restraining Orders, Appeals, Fresh Evidence, Family Law Act, R.S.O. 1990, c. F.3Canada v. Doiron, 2012 FCA 71, Palmer v. The Queen, [1980] 1 S.C.R. 759, Barendregt v. Grebliunas, 2022 SCC 22

Mahilum v Consentino, 2024 ONCA 829

Keywords: Wills and Estates, Civil Procedure, Appeals, Extension of Time, Rules of Civil Procedure, r. 61.04(1), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131

Short Civil Decisions

Mann v Rafique, 2024 ONCA 812

Keywords: Torts, Defamation, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, r. 21, Libel and Slander Act, R.S.O. 1990, c. L. 12, s. 16, PMC York Properties Inc. v. Siudak, 2022 ONCA 635

Beazley v Johnston, 2024 ONCA 813

Keywords: Torts, Negligence, MedMal, Civil Procedure, Summary Judgment, Evidence, Experts, Appeals, Extension of Time, Machado v. Ontario Hockey Association, 2019 ONCA 210

Eshtiaghi v Haratian, 2024 ONCA 822

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Orders, Enforcement, Stay, Third Party Claims

Melburn-Kumar v Kumar, 2024 ONCA 818

Keywords: Family Law, Child Support, Spousal Support, Civil Procedure, Orders, Enforcement, Courts of Justice Act, R.S.O. 1990, c. C.43., s. 6(1)(b), Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, s. 41, Ares Law Professional Corporation v. Rock, 2017 ONCA 569

Williams v VAC Developments Limited, 2024 ONCA 821

Keywords: Torts, Defamation, Anti-SLAPP, Civil Procedure, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43., s. 137.1

CIVIL DECISIONS

1797472 Ontario Inc. v independent Electricity System Operator, 2024 ONCA 808

[Miller, Copeland and Gomery JJ.A.]

Counsel:

M. J. Jilesen, A. Wheeler, J. McDaniel, and B. Ross, for the appellant, Independent Electricity System Operator

S. Barton and A. Bazak, for the respondents, 1797472 Ontario Inc. and Solar Sky Farms Inc.

L. Sarabia, W. Brock, and R. Gao, for the respondents, 2323953 Ontario Inc., BrightRoof 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 Limited Partnership, PRI RT Solar Limited Partnership, PSI Solar Finance 1 Limited Partnership, SE 2011 LP, SunE Newboro 4 LP and SunE Welland Ridge LP

Keywords: Contracts, Interpretation, Standard of Review, Green Energy and Green Economy Act, 2009, S.O. 2009, c. 12, Electricity Act, S.O. 1998, c. 15, Sch A, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 326, EPCOR Electricity Distribution Ontario Inc. v. Municipal Electric Association Reciprocal Insurance Exchange, 2022 ONCA 514, Austin v. Bell, 2020 ONCA 142, Adam v. Insurance Corporation of British Columbia, 2018 BCCA 482, Beaudin v. Travelers Indemnity Insurance Company of Canada, 2021 ONSC 1389, aff'd 2022 ONCA 806, leave to appeal refused, [2023] S.C.C.A. No. 40568, Joaquim v. Intact Insurance Company, 2023 ONSC 5120

facts:

Independent Electricity System Operator (the 'Appellant'), appealed the application judge's interpretation of terms of its contracts with the Respondents. In 2009, the Appellant launched a 'feed-in-tariff' (the 'FIT program') to encourage the construction of new renewable energy facilities in Ontario. Under the FIT program, the Appellant promised to pay guaranteed prices for energy delivered to the provincial grid by new suppliers of renewable energy over long-term contracts. Beginning in 2011, the Respondents obtained contracts (the 'FIT 1 Contracts') to deliver energy from solar panel facilities. Each contract consists of standard terms common to all FIT 1 Contracts and a Contract Cover Page specific to each Respondent.

The Respondents' solar panels collect direct current ('DC') energy, quantified in DC watts, which is converted to alternating current ('AC') energy, quantified in AC watts, before being delivered to the grid. Under the FIT 1 Contracts, the Respondents receive a guaranteed price for each AC watt they deliver, subject to a cap over any given period. This cap is specified on the Contract Cover Page as the Respondent's 'Contract Capacity' or 'Gross Nameplate Capacity'.

Beginning in 2019, the Respondents replaced their existing solar panels with more efficient panels or added additional panels. As a result, they increased their capacity to capture and convert DC energy. In 2020, the Appellant informed the Respondents that they had breached their FIT 1 Contracts as a result of their installation or addition of new, more efficient panels.

The applications and cross-applications turned largely on the interpretation of s. 2.1(b) of the FIT 1 Contracts, which begins as follows: 'The Supplier shall at no time after the date of this Agreement modify, vary or amend in any...