COURT OF APPEAL FOR ONTARIO
DATE: 2002-09-24 DOCKET: C36648
RE: RICHARD P. SAMBROOK (Plaintiff (Respondent)) – and – ALTAMIRA MANAGEMENT LTD. (Defendant (Appellant))
BEFORE: MCMURTRY C.J.O., CARTHY AND GOUDGE JJ.A.
COUNSEL: R. Paul Steep and Lisa M. Constantine For the appellant Jeffrey B. Simpson, Clive Elkin and Gordon F. Luborsky For the respondent
HEARD: September 16 and 17, 2002
On appeal from the order of Justice Nancy Backhouse from the Superior Court of Justice, dated July 5, 2001.
E N D O R S E M E N T
Released Orally September 17, 2002
[1] We agree with the respondent that the contract in issue in this case is better characterized as one for the sale and delivery of shares rather than a share option agreement. The basic question at trial was what the terms of the contract were, rather than their interpretation.
[2] The trial judge determined that the contract was partly in writing and partly oral. She found that all the essential terms of the contract had been agreed to, namely, that the respondent had the right to have Altamira provide $1 million worth of its shares priced at half their market value as at his start date with delivery to be within six months. There was no vesting requirement or performance condition. The remaining details were not to be the subject of negotiations, but were simply to be as per the appellant’s standard form documents.
[3] These findings, which determine what the contract was, were supported in the evidence and the trial judge made no palpable error in making them.
[4] In short, the trial judge properly found on the evidence that there had been a clear meeting of the minds on the terms for the sale and delivery of the shares. She was correct in determining that these represent the essential terms necessary to make the contract work.
[5] In our view, this ends the matter. There is no need to parse paragraph 3 of the May 1, 1992 letter because it was not the contract. Nor, in the circumstances, can the appellant complain about the respondent not having signed the standard form documents, which it never presented to him. Nor, in our view, is there then any room for the application of the contra preferentum principle or for the application of the parol evidence rule.
[6] The appeal must therefore be dismissed.
[7] As to the cross-appeal, we think the trial judge was fully justified in her assessment. It was open to her to fix that assessment as of the date of the respondent’s notice of termination. Moreover, there was no evidentiary basis on which to provide for any tax contingency. Thus, the cross-appeal must also be dismissed.
[8] In our view, the appeal and the cross-appeal were equally matters of substance. We would therefore order that there be no costs.
"R.R. McMurtry C.J.O."
"J.J. Carthy J.A."
"S.T. Goudge J.A."