Breakwall Financial Corp. v. Constellation Holdings Inc., 2008 ONCA 316

DATE: 20080425

DOCKET: C46923

COURT OF APPEAL FOR ONTARIO

DOHERTY, ARMSTRONG and MACFARLAND JJ.A.

BETWEEN:

BREAKWALL FINANCIAL CORP.

Respondent

and

CONSTELLATION HOLDINGS INC.

Appellant

Jeffrey Radnoff for the appellant

Peter J. Osborne for the respondent

Heard: April 24, 2008

On appeal from the judgment of Justice C. Campbell of the Superior Court of Justice dated March 6, 2007.

APPEAL BOOK ENDORSEMENT

[1] We would dismiss the appeal. Counsel for the appellant has advanced with skill three arguments in support of his contention that Campbell J. misinterpreted the agreement.

[2] We need not address each of the arguments individually. If there is some merit to the submissions, the fact remains that in a plain reading of the words, the agreement required that the offer submitted be an “all cash offer”. Assessing the September 10, 2006 proposal was or did become an offer, it was not an “all cash” offer.

[3] The appellant contends that as the amount of cash component of the September “offer” exceeded the amount set out in the agreement, the offer complied with the agreement even though it was not an all cash offer. To read the agreement that way would require the court to read words into the agreement which are simply not there. The offer was not an “all cash offer”. Consequently, it did not comply with the agreement.

[4] For the purposes of the appeal, we will assume that the CCAA applies to this order We extend the time for applying for leave, grant leave and dismiss the appeal.

[5] Costs to the respondent in the amount o $7,300, inclusive of disbursements and GST.