CITATION: Gold River Carehomes Inc. v. Hallman Eldercare Inc., 2007 ONCA 110

DATE: 20070220

DOCKET: C42383

COURT OF APPEAL FOR ONTARIO

RE:

GOLD RIVER CAREHOMES INC. (Plaintiff/Respondent) – and – HALLMAN ELDERCARE INC. and BANKSIDE HUMANACARE INC. (Defendants/Appellants)

BEFORE:

MCMURTRY C.J.O., WEILER and BLAIR J.J.A.

COUNSEL:

Edward L. D’Agostino and Jennifer J. Breithaupt

for the appellants

Frank L. Gardner

for the respondent

HEARD:

May 19, 2006

On appeal from the judgment of Belleghem of the Superior Court of Justice, dated August 10, 2004.

E N D O R S E M E N T

[1] On January 15, 2007, counsel for the appellants wrote to the Court requesting that the appeal in this matter be re-opened for further argument on the point of the correct Initial Fair Market Value date with respect to the Bankside Terrace property. We have now reviewed the correspondence received from both parties, and the materials contained therein. The request is denied.

[2] The question of how the agreement between the parties was to be interpreted – assuming there was an enforceable agreement – was not an issue directly addressed either at trial or on appeal. The question arose indirectly in the context of the argument about whether the parties had agreed upon all of the necessary terms and therefore, whether there was an enforceable agreement.

[3] In this context, Mr. Gardiner submitted to us on behalf of the respondents that the agreement between Mr. Hallman and Mr. Neid was clear on this point. In para. 3 of his affidavit filed on the application now pending in Superior Court respecting the appointment of an arbitrator he confirms that the submission he made to us in oral argument was the following:

“There is certainty as to the dates for initial valuation of the properties within the Agreement itself. In my view, that means November, 1997 in the case of the Bankside Terrace property, and the date of opening with respect to the other two (2) properties”

[4] The significance of the November, 1997 date is that it was in that month that the oral agreement between Mr. Hallman and Mr. Neid was found to have been made. Mr. Gardiner put it to us in argument that the valuation date with respect to Bankside Terrace would be the date of the agreement, because Gold River only became entitled to the 5% value-added profit once the exclusivity agreement had been made.

[5] We understand from the materials filed that he now views the interpretation of the agreement differently. That is a matter to be sorted out before the arbitrator, in our view, however, although we cannot help but observe that Mr. Gardiner was very clear on his position in argument before us and asked us to decide that point in the appeal on the basis that the parties were ad idem on it. Whether he can now resile from that position is something the arbitrator will have to resolve.

[6] We do not consider the issue of the Initial FMV date to have been central to the appeal, however. Even if there were some uncertainty in the interpretation of the agreement on this question, the record amply supported the trial judge’s finding that there was a valid oral agreement in other respects.

[7] Accordingly, we see no basis for re-opening the appeal for further argument on this issue.

“R.R. McMurtry C.J.O.”

“K.M. Weiler J.A.”

“R.A. Blair J.A.”