



COURT OF APPEAL FOR ONTARIO

CITATION: Iroquois Falls Power Corporation v. Ontario
    Electricity Financial Corporation, 2016 ONCA 687

DATE: 20160919

DOCKET: M46825 (C60286, C60287, C60288, C60289, C60290, C60291)

Hoy A.C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

C60286

Iroquois Falls Power Corporation

Applicant (Respondent in Appeal/Moving Party)

and

Ontario Electricity
    Financial Corporation

Respondent (Appellant on Appeal/Respondent on Motion)

AND

C60287

Cochrane Power
    Corporation

Applicant (Respondent in Appeal/Moving Party)

and

Ontario Electricity
    Financial Corporation

Respondent (Appellant on Appeal/Respondent on Motion)

AND

C60288

N-R Power and Energy
    Corporation, Algonquin Power (Long Sault) Partnership and N-R Power Partnership

Applicant (Respondent in Appeal/Moving Party)

and

Ontario Electricity
    Financial Corporation

Respondent (Appellant on Appeal/Respondent on Motion)

AND

C60289

Kirkland Lake Power
    Corporation

Applicant (Respondent in Appeal/Moving Party)

and

Ontario Electricity
    Financial Corporation

Respondent (Appellant on Appeal/Respondent on Motion)

AND

C60290

Lake Superior Power
    Limited Partnership, Beaver Power Corporation, Carmichael Limited Partnership
    and Algonquin Power (Nagamami) Limited Partnership

Applicant (Respondent in Appeal/Moving Party)

and

Ontario Electricity
    Financial Corporation

Respondent (Appellant on Appeal/Respondent on Motion)

C60291

AND

Cardinal Power of Canada,
    L.P. and MPT Hydro L.P.

Applicant (Respondent in Appeal/Moving Party)

and

Ontario Electricity Financial Corporation

Respondent (Appellant on Appeal/Respondent on Motion)

J.D. Timothy Pinos, Emily Larose and Stephanie Voudouris,
    for the respondent (appellant on appeal), Ontario Electricity Financial
    Corporation

James D.G. Douglas and Heather K. Pessione, for the applicants
    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 applicants Lake
    Superior Power Limited Partnership, Beaver Power Corporation, Carmichael
    Limited Partnership and Algonquin Power (Nagamami) Limited Partnership

Glenn Zacher, for the applicants Cardinal Power of
    Canada, L.P. and MPT Hydro L.P.

Heard and released orally: September 13, 2016

On a motion to vary the order of Justice Eileen E.
    Gillese, dated August 5, 2016.

[1]

Ontario Electricity Financial Corporation (OEFC) brings this motion
    under s. 7(5) of the
Courts of Justice Act
to vary the August 5, 2016
    order of Justice Gillese, dismissing its motion to stay a portion of certain
    Superior Court orders pending determination of its application for leave to
    appeal to the Supreme Court of Canada and, if leave be granted, a determination
    of those appeals.  The portions of the orders at issue require OEFC to pay an
    estimated $180 million to the respondents.

[2]

OEFC argues that Justice Gillese made three reviewable errors:

1.  She applied the
    wrong standard in respect of whether OEFCs leave to appeal application to the
    Supreme Court of Canada raised a serious issue to be tried;

2.  Her conclusion
    that OEFC had not established irreparable harm is tainted by palpable and
    overriding error; and

3.  She concluded that
    OEFC had not established that it will suffer greater harm if the stay is refused
    than the respondents will suffer if the stay is granted in the absence of
    evidence from the respondents that, if the stay were refused, and leave to
    appeal to the Supreme Court were subsequently granted, they would be capable of
    repaying the amounts paid to them by OEFC.

[3]

We reject these arguments.

[4]

Justice Gillese properly considered the stringent leave requirements in
    the
Supreme Court Act
in considering the serious issue component of
    the three-part test for obtaining a stay pending appeal.  We agree with the
    reasoning underpinning her conclusion that there is little likelihood that the
    Supreme Court will grant OEFC leave to appeal and that it is unlikely that
    the Supreme Court will grant leave.  Indeed, we would characterize the
    likelihood of leave being granted as remote.

[5]

In our view, OEFC simply seeks to reargue the irreparable harm component
    of the test for obtaining a stay pending appeal.  We see no basis to interfere
    with Justice Gilleses rejection of OEFCs argument that irreparable harm will
    result if the stay is not granted.

[6]

We similarly reject OEFCs third argument.  The onus was on OEFC to
    establish that it would suffer greater harm if the stay were refused than the
    respondents would if the stay were granted.  The respondents did not have the evidentiary
    burden of proving they could repay if leave were granted and the appellant won
    the prospective appeal.

[7]

This motion is accordingly dismissed.  The respondents shall be entitled
    to their costs, fixed in the amount of $8,000, including disbursements and HST.

Alexandra Hoy A.C.J.O.

P. Lauwers J.A.

M.L. Benotto J.A.


