2024 ONCA 946 Decision

• The Ontario Court of Appeal partially allowed the appeal.
• The motion judge had permanently stayed the A&B Action, ruling that it was an abuse of process to commence a separate action rather than seek leave to add A&B as a defendant in the Main Action.
• The Court of Appeal disagreed that the A&B Action was an abuse of process but upheld a temporary stay, allowing the plaintiffs to bring a motion to add A&B to the Main Action.
• The stay of the A&B Action remains in effect until that motion is determined. If A&B is added as a defendant, the stay may become permanent; if the motion is denied, the A&B Action may proceed.
• The Court confirmed that the commencement of the A&B Action tolled the limitation period for claims against A&B.

2025 ONCA 170 Decision (Costs Endorsement)

• The appeal resulted in divided success, and no costs were awarded.
• The plaintiffs requested that the lower court’s $20,000 cost award against them be set aside.
• The Court agreed, stating that its decision did not endorse the costs order and that divided success warranted no costs in the lower court.

Outcome

• The A&B Action remains temporarily stayed pending a motion to add A&B to the Main Action.
• The $20,000 costs award was set aside, with no costs awarded at either level of court.

• Successful Party: Neither party achieved a complete victory. The appeal resulted in divided success:

  • The plaintiffs (SIF Solar Energy Income & Growth Fund) succeeded in overturning the permanent stay of the A&B Action.
  • A&B succeeded in maintaining a temporary stay, requiring the plaintiffs to seek leave to add A&B to the Main Action.