Executive Summary: Key Legal and Evidentiary Issues

• Alectra Utilities Corporation moved for summary judgment seeking dismissal of a claim by United Bakery Manufacturers Inc. arising from a power interruption.
   
• United conceded on cross-examination that it had no evidence to support its pleaded causes of action for breach of contract or breach of warranty.
   
• A negligence allegation, raised only in United's reply rather than in the original pleadings, became the decisive issue on the motion.
   
• Alectra's failure to disclose incident reports or other information about the outage weighed against it under the "best foot forward" principle.
   
• Justice Reid found a genuine issue requiring a trial existed on the negligence question and dismissed the summary judgment motion.
   
• A subsequent costs decision awarded United partial indemnity costs after reducing counsel's claimed hours as excessive.

Facts of the case

United Bakery Manufacturers Inc. is a commercial baking operation that receives electrical service from Alectra Utilities Corporation. On August 16, 2023, that service was interrupted for about four hours, allegedly due to the failure of one of Alectra's underground supply cables. United claimed damages of approximately $420,000 as a result of the stoppage. The statement of claim was issued December 13, 2024, and amended January 23, 2025, with the statement of defence filed March 6, 2025. Several procedural motions followed, including an unsuccessful default judgment motion by United that was dismissed on September 21, 2025. United filed its reply on September 23, 2025. Alectra brought the summary judgment motion at issue on November 19, 2025, supported by the affidavit of Glen Yamashita, with United responding through the affidavit of Russ Gorochowski, sworn January 27, 2026. The motion was heard April 8, 2026.

Policy and legislative provisions at issue

Alectra's motion relied on rule 20.01(3) and rule 20.04(2)(a) of the Rules of Civil Procedure, which permit summary judgment where there is no genuine issue requiring a trial. Because there was no written contract between the parties, Alectra pointed to its Conditions of Service ("COS"), published under the Distribution System Code issued by the Ontario Energy Board, as the governing terms. The COS state that Alectra does not guarantee continuous or unvaried power and limits its liability to damages arising from wilful misconduct or negligence, while excluding loss of profit, business interruption losses, and consequential or punitive damages. United's reply, which introduced the negligence allegation for the first time, was challenged by Alectra under rule 25.04(3) for late filing and rule 25.06(5) for improperly raising a new ground of claim outside an amended pleading. On the later costs motion, the court applied section 131 of the Courts of Justice Act and rule 57.01, including the abuse-of-process considerations in rule 20.06.

Reasoning and analysis

The court applied the framework from Hryniak v. Mauldin, 2014 SCC 7, and the "lead trump or risk losing" standard drawn from Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. and Chernet v. RBC General Insurance Company, 2017 ONCA 337, both of which require each party to put its best evidentiary foot forward. On the pleaded causes of action, United's representative conceded during cross-examination that there was no evidence of a breached contract or warranty, so the court found no genuine issue on those claims. Attention then turned to negligence, pleaded only in United's reply. Although the reply was procedurally irregular, Alectra had not brought a proper motion to strike or exclude it, so the court declined to disregard it. The COS itself contemplated negligence-based claims, and United's affidavit evidence suggested Alectra had refused to provide information about the incident. Because Alectra did not disclose incident reports or other details bearing on the cause of the outage, the court could not be satisfied that summary disposition of the negligence issue would be fair and just, and it declined to draw conclusions from an incomplete evidentiary record.

Ruling and overall outcome

The court dismissed Alectra's summary judgment motion, finding that a genuine issue requiring a trial remained on the question of negligence even though the breach of contract and breach of warranty claims had been effectively abandoned by United. In the subsequent costs decision, Justice Reid found United to be the successful party, having defeated both the summary judgment motion and Alectra's preliminary objections to United's supporting materials. The court held the issues were important but not complex, declined to depart from the partial indemnity scale, and reduced the hours claimed by United's counsel from [94.5 hours per para. 30 / 95.5 hours per para. 43 — the decision states both figures] to 75, citing the unexplained disparity with the hours incurred by Alectra's counsel. Alectra's own request for costs related to an abandoned procedural motion was denied because that motion had never been before the court. United was awarded partial indemnity costs of $40,983.50, inclusive of HST and disbursements, payable by Alectra.