DATE: 20030326
DOCKET: C38541
COURT OF APPEAL FOR ONTARIO
RE: SIGFUSSON NORTHERN LTD. (Respondent/Plaintiff) v. CANTERA MINING LIMITED (Appellant/Defendant)
BEFORE: DOHERTY, ABELLA and LASKIN JJ.A.
COUNSEL: John N. Birch for the appellant Bernd Richardt for the respondent
HEARD: March 24, 2003
ORALLY
RELEASED: March 24, 2003
On appeal from the judgment of Justice E.W. Stach, dated June 25, 2002.
E N D O R S E M E N T
[1] We agree with the motion judge that this was a proper case for summary judgment. The terms of the January written agreement are clear and unambiguous. The context in which that agreement was written does not suggest any ambiguity. The appellant’s contention that it and the respondent entered into a further oral agreement at the same time as the written agreement cannot withstand scrutiny. The oral agreement put forward by the appellant is nothing more than an attempt to alter the terms of the written agreement as they relate to the appellant’s obligation to make the payments set out in the written agreement. The purported oral agreement does not explain or qualify the terms of the written agreement, but rather contradicts those terms. Evidence of an oral agreement cannot be admitted for that purpose: G. Fridman, The Law of Contract in Canada (1999), 4th ed.
[2] As we are satisfied that this was a proper case for summary judgment on the merits, we need not decide whether the motion judge properly concluded that the dispute was not subject to the arbitration clause in the 2000 agreement between the parties. Even if this dispute was subject to that clause, we are nonetheless of the view that the motion judge reached the correct conclusion having regard to s. 7(2), para. 5 of the Arbitration Act 1991, S.O. 1991, c. 17.
[3] The appeal is dismissed with costs on a partial indemnity basis in favour of the respondent fixed at $4,000.
“Doherty J.A.”
“R.S. Abella J.A.”
“John Laskin J.A.”