LEXPERT MAGAZINE
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Q2 2019 21
BENNETT V. HYDRO
ONE INC. ET AL
DECISION DATE: DECEMBER 31, 2018
Aer the launch of Hydro One's new bill-
ing system in 2013, many of its 1.3 million
customers were affected by a variety of bill-
ing problems including overcharging, de-
layed bills, and undercharging.
e Ontario Ombudsman launched a
15-month investigation, reviewing masses
of documents, conducting numerous inter-
views, and ultimately resolving thousands
of customer complaints. In May 2015, the
Ombudsman released its report entitled
"In e Dark"; as Justice Paul Perell of the
Ontario Superior Court of Justice later
found, it was "scolding and scalding."
Several months later a class proceed-
ing was commenced seeking millions of
dollars in damages. e plaintiff claimed
that Hydro One's billing system may have
a continuing undiscovered defect, which
could be overcharging some customers in
some manner.
In November 2017, Justice Perell re-
fused to certify the claim as a class action.
He found there was no commonality of any
significance -- i.e., no proposed common
issues, such as whether Hydro One had a
duty to produce accurate bills – that would
advance class members' claims in any real
way. Justice Perell found that the plaintiff
did not point to any common billing error,
and that the "inquisitorial design" of the
case was not "appropriate for a class action."
Justice Perell also found that a class ac-
tion was not the preferred procedure by
which to resolve the issues. Justice Perell
noted that the Ombudsman made 65 rec-
ommendations, all of which were imple-
mented in 2015 by Hydro One. Hydro
One spent $88 million to improve its
systems, and paid more than $12 million
in goodwill credits to customers. Hydro
One's regulator, the Ontario Energy Board
(OEB) oversaw Hydro One's review and
improvements. In 2015, the Ontario gov-
ernment enacted new "billing accuracy"
regulations, which now require 98% of all
bills to be accurate.
In a decision released December 31,
2018, the Ontario Divisional Court (per
Justices Lynne Leitch, Graeme Mew and
Frederick Myers) dismissed the appeal.
"Suffice it to say that we are satisfied
that the motion judge properly weighed
relevant factors to reach his conclusion
that a class action was not the preferable
procedure," Justice Leitch wrote for the
Divisional Court. "He noted that the goals
of the [Class Proceedings] Act are met by
the OEB, which is the legislature's chosen
and preferred vehicle to regulate the re-
spondents' behaviour and considered what
had been and was capable of being accom-
plished under public law process."
On March 26, 2019, the Court of Ap-
peal for Ontario dismissed the plaintiff 's
application for leave to appeal.
Laura Fric, Lawrence Ritchie and Rob-
ert Carson of Osler, Hoskin & Harcourt
LLP represented Hydro One.
Kirk Baert and Garth Myers of Koskie
Minsky LLP, Eric Hoaken of Lax
O'Sullivan Lisus Gottlieb LLP and Ian
Matthews, now at Borden Ladner Ger-
vais LLP, represented the plaintiff.
BONDFIELD CONSTRUCTION
COMPANY LIMITED V.
THE GLOBE AND MAIL INC.
DECISION DATE: MARCH 4, 2019
In this decision, the Court of Appeal for
Ontario reinstated Bondfield Construc-
tion Company Limited's $125-million
defamation action against e Globe and
Mail Inc., allowing it to proceed to trial.
Bondfield brought its action aer the
Globe had published a series of articles in
2015 and 2016 that, according to Bond-
field, alleged corruption or wrongdoing in
the decision to award Bondfield the con-
tract to build a new critical care facility at
St. Michael's Hospital in Toronto.
is was one of the first appellate deci-
sions considering a major media organiza-
tion's attempt to rely on Ontario's new an-
ti-SLAPP (i.e., Strategic Lawsuits Against
Public Participation) legislation, the pur-
pose of which is to prevent the use of litiga-
tion as a silencing tool against persons who
speak out on matters of public interest.
In an earlier ruling, the motions judge
granted the Globe's anti-SLAPP motion
and dismissed Bondfield's action. In over-
turning that decision, the Court of Appeal
(per Justices David Doherty, who wrote
the decision, Gladys Pardu and Ian Nor-
dheimer) held that: "ere are powerful
arguments to be made on both sides of
the public interest balancing required in
s. 137.1(4)(b) [of the Courts of Justice Act,
R.S.O. 1990, c. C.43]. In the end, I view
this as a case in which Bondfield has a legit-
imate argument that it has been defamed
and suffered significant damages as a result
of the Globe articles. e Globe has legiti-
mate arguments, both that the content is
not defamatory and that it has defences
to any parts that are defamatory. Unlike
SLAPP suits which reek of the plaintiff 's
improper motives, claims of phantom
harm, and bullying tactics, this litigation
smells of a genuine controversy. It should
be tried on its merits."
Bondfield Construction Company Lim-
ited was represented by Kevin O'Brien and
Karin Sachar of Osler, Hoskin & Har-
court LLP.
Carlos Martins and Andrew MacDon-
ald of Bersenas Jacobsen Chouest om-
son Blackburn LLP acted for e Globe
and Mail Inc.
In two notable Ontario actions, Hydro One Inc. staves off a class action brought
by 1.3 million customers over billing problems; and a defamation lawsuit concerning
a series of articles that allegedly defamed a construction company can proceed
against The Globe and Mail newspaper
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