Cynthia Diane Davis

The applicant, GolfNorth Properties Inc., sought declarations that its June 14 Offer to purchase shares/LPUs was not a "Permitted Offer" under the relevant agreements, thereby invalidating Mill-Gate Holdings Inc.'s exercise of a right of first refusal.

The respondents argued GolfNorth Properties lacked standing and that the June 14 Offer was a Permitted Offer.

The court found that GolfNorth Properties, as a non-party to the agreements, lacked standing due to privity of contract.

Alternatively, the court determined that the definition of "Permitted Offer" was ambiguous and, considering the parties' subsequent conduct, concluded that the June 14 Offer was indeed a Permitted Offer, which validly triggered Mill-Gate's right of first refusal.

The application was dismissed.

Following the dismissal of the plaintiff’s action on summary judgment and the dismissal of the plaintiff’s motion to amend pleadings, the court addressed costs.

The defendant relied on two offers to settle and sought partial indemnity costs to the close of pleadings and substantial indemnity costs thereafter.

The court held that under Rule 49.10(2) a defendant’s offer to settle does not give rise to substantial indemnity costs and that the offers lacked sufficient compromise to justify such an award.

The court fixed the defendant’s costs on a partial indemnity basis.