DATE: 20031020

DOCKET: C38800

COURT OF APPEAL FOR ONTARIO

RE: 1293332 ONTARIO INC. (Plaintiff/Respondent) –and– IMPERIAL OIL, a partnership of IMPERIAL OIL LIMITED and McCOLL-FRONTENAC PETROLEUM INC. and BLAKE, CASSELS & GRAYDON LLP. (Defendants/ Appellant)

AND RE: IMPERIAL OIL, a partnership of IMPERIAL OIL LIMITED and McCOLL-FRONTENAC PETROLEUM INC. and BLAKE, CASSELS & GRAYDON LLP. (Plaintiffs by counterclaim/Appellant) –and– 1293332 ONTARIO INC. (Defendant by counterclaim/Respondent)

BEFORE: MOLDAVER, BORINS and MacPHERSON JJ.A.

COUNSEL: Sharon Wong and Bruce O’Toole for the defendant (appellant)/plaintiff by counterclaim (appellant) Karen Jolley for the plaintiff (respondent)/defendant by counterclaim (respondent)

HEARD: October 16, 2003

RELEASED ORALLY: October 16, 2003

On appeal from the judgment of Justice Michael R. Dambrot of the Superior Court of Justice dated August 15, 2002.

E N D O R S E M E N T

[1] We agree with Dambrot J.’s interpretation of the agreement of purchase and sale to the extent that he found, in order for there to be a binding contract, that Imperial’s acceptance had to be delivered to the purchaser in writing. He found that Imperial’s written acceptance of the offer was delivered to the purchaser on September 30, 1999. The evidence fully supports that finding. As a result of this finding, on September 30, 1999 a binding contract was created.

[2] While it is true that Imperial inserted the date of September 23, 1999 as the “acceptance” date, we do not find the last sentence of clause 5.1 to be determinative as to the actual date of acceptance.

[3] In the circumstances of this case, the acceptance date was particularly important because it served as the foundation for the crucial 60-day due diligence period. In our view, it would be wrong to interpret the last sentence of clause 5.1 as permitting Imperial to unilaterally shorten that period by inserting into the contract a date that did not accurately reflect its own internal approval process or the respondent’s reasonable view as to the date on which the contract was created. That date was, as Dambrot J. found, September 30^th^.

[4] Consequently, we are satisfied that Dambrot J. came to the right conclusion, although we do not agree with him that there was no contract. Rather, we are satisfied that there was a contract, albeit one that became operative on September 30^th^.

[5] It follows that the purchaser was entitled to withdraw when it did on November 26^th^ and, accordingly, it was entitled to the return of its deposit.

[6] For these reasons, the appeal is dismissed with costs fixed at $12,500.00 inclusive of G.S.T. and disbursements.

Signed: “M.J. Moldaver J.A.” “S. Borins J.A.” “J.C. MacPherson J.A.”