Court File and Parties

CITATION: Valemont Group Ltd. v. Philmor Goldplate Homes Inc., 2007 ONCA 273

DATE: 20070416

DOCKET: C46551

COURT OF APPEAL FOR ONTARIO

DOHERTY, LASKIN and JURIANSZ JJ.A.

BETWEEN:

VALEMONT GROUP LTD.

Plaintiff (Appellant)

and

PHILMOR GOLDPLATE HOMES INC., PHILMOR (BLOOR WALK) DEVELOPMENTS CORPORATION, BELLAGIO DEVELOPMENTS LIMITED, ROLLINSFORD DEVELOPMENT CORPORATION, PHILMOR GROUP LIMITED, PHILMOR (WEST MALL) LIMITED, MOR-ALICE LIMITED, MMG PROPERTY MANAGEMENT INC., PHILMOR DEVELOPMENTS LTD., BURCLIFF INVESTMENTS LIMITED, HERITAGE SQUARE APARTMENTS LIMITED, 607919 ONTARIO LIMITED, RHCC HOLDINGS LIMITED, 625684 ONTARIO LIMITED, RHGC LEASEHOLDS LTD., RHGC MANAGEMENT LTD., TECHNOR SALES LIMTIED, TECHNOR DEVELOPMENTS LTD., BLYTHWOOD HOLDINGS INC., PHILIP MACARZ, MORRIS MACARZ, PAUL ROONEY and THORNROSS LIMITED

Defendants (Respondents)

AND BETWEEN:

PHILMOR GOLDPLATE HOMES INC.

Plaintiff by Counterclaim

and

VALEMONT GROUP LTD., 1004697 ONTARIO LIMITED, VALEMONT HOMES INC., VALEMONT HOMES (MEADOWVALE) INC., VALEMONT BUILDING CORPORATION, JOE VALELA, VITO VALELA, CARMELLA BERTUCCI, MIRELLA CESARIO, MYSTIQUE INTERIORS and CAMVALE CONSULTANTS INC.

Defendants by Counterclaim

Counsel:

R. Leigh Youd, for the Appellant

S. Dale Denis and Gary C. Grierson, for the Respondents

Heard and Released Orally: April 4, 2007

On appeal from the order of Justice Sidney N. Lederman of the Superior Court of Justice, dated January 5, 2007

ENDORSEMENT

[1] This appeal turns on the motion judge’s interpretation and application of paragraph 9 of the order of Ground J. dated March 31, 2006. Paragraph 9 provides:

Valemont agrees that if Philmor, following the appraisals, wants to offer for sale and sell to a purchaser including itself (the “Purchaser”) on behalf of the Co-owners, as their interests may appear, a 100% interest in the Lands in a normal commercial manner, Valemont shall agree, but if the parties cannot agree to the terms or process of the sale, the terms of such sale shall be determined by motion to the Court, and each party shall be free to make whatever submissions it feels appropriate for the purposes of such motion and the relief sought.

[2] As paragraph 9 forms part of a consent order, the motion judge, in substance, was asked to interpret the words of an agreement between the parties. Those words have no precedential value. Accordingly, the motion judge’s interpretation is entitled to a measure of deference. If the words of paragraph 9 are reasonably capable of bearing the meaning given to them by the motion judge, the appeal must fail.

[3] The motion judge interpreted paragraph 9 to give the respondent, Philmor, an election: it could sell the property to a third party or it could acquire Valemont’s interest in the property. The appellant contends that paragraph 9 does not give Philmor the right to acquire Valemont’s interest. Valemont says that under paragraph 9, if Philmor wants to own the entire property, it must offer the property for sale on the open market and bid at that sale. We do not accept Valemont’s contention.

[4] The words in paragraph 9 contain some ambiguity. The phrase “offer for sale” suggests an open market sale; but the phrase “sale to a purchaser including itself” suggests that Philmor can elect to acquire Valemont’s interest in the property. In finding that this election was available to Philmor, the motion judge adopted an interpretation of paragraph 9 that the words were reasonably capable of bearing. Having adopted this interpretation, the motion judge then fixed the terms of Philmor’s acquisition as contemplated by paragraph 9. Accordingly, because the motion judge adopted a reasonable interpretation of paragraph 9, Valemont’s appeal must fail.

[5] We add that the motion judge did not interpret paragraph 9 of the order of Ground J. in a vacuum. He was aware that the relationship between the parties had irretrievably broken down. He was also aware that Philmor was in control of all aspects of the project. He fashioned an order that fully protected the fair value of Valemont’s interest in the property while at the same time, gave Philmor control of the project so it could complete the development and market the units. His order made sound commercial sense.

[6] The appeal is dismissed with costs fixed at $12,000, inclusive of GST and disbursements.

“D. Doherty J.A.”

“J. Laskin J.A.”

“R. Juriansz J.A.”