Court File and Parties
Court of Appeal for Ontario
Before: Winkler C.J.O., Rosenberg and Moldaver JJ.A.
Between:
Harripaul Dhanna Applicant (Appellant)
and
Ontario Ministry of Labour Respondent
Counsel: Gregory M. Sidlofsky, for the appellant Leonard Marsello and Amy Leaman, for the respondent
Heard and released orally: January 14, 2009
On appeal from the order of Justice Faye McWatt of the Superior Court of Justice dated July 8, 2008.
Endorsement
[1]
Endorsement
The appellant concedes that the meaning of the term “will be held in escrow” depends on the intention of the parties at the time the agreement was entered into. The application judge was obviously aware of this test and she relied upon Cromarty J.’s decision in Hunter v. Thoma, [1981] O.J. No. 649 (H.C.J.).
2The best evidence of the parties’ intention was the terms of the settlement agreement itself. It is apparent that the application judge found that the parties intended that the meaning of the escrow term was that the mortgage would not be effective and would not create an interest in land unless and until there was a default. There never was any default. Accordingly, the bank had nothing to assign to the appellant. The evidence of intention relied upon by the appellant consists of statements and actions taken after the settlement agreement was entered into and when there was a possible priority dispute.
[3]
Disposition
Accordingly, the appeal must be dismissed with costs fixed at $5,000 inclusive of G.S.T. and disbursements.
Signed:
“Winkler C.J.O.” “M. Rosenberg J.A.” “M. J. Moldaver J.A.”