CITATION: HDL Capital Corporation v. N5R.Com Inc, 2008 ONCA 194
DATE: 20080319
DOCKET: C47372
COURT OF APPEAL FOR ONTARIO
WINKLER C.J.O., MACPHERSON and ROULEAU JJ.A.
BETWEEN:
HDL CAPITAL CORPORATION
Applicant (Appellant on Appeal)
and
N5R.COM INC. and ROMAN BODNARCHUK
Respondents (Respondents on Appeal)
Melvyn L. Solmon and Matthew Valitutti for the appellant
Adrian C. Lang for the respondents
Heard & released orally: March 13, 2008
On appeal from the order of Justice John D. Ground of the Superior Court of Justice dated June 8, 2007.
ENDORSEMENT
[1] The appellant HDL Capital Corporation appeals from the judgment of Ground J. dated June 8, 2007, dismissing the appellant’s application and ordering a trial of several issues relating to the contractual relationship between the appellant and the respondent, N5R.Com Inc.
[2] The appellant’s principal argument is that the application judge erred by concluding that the pivotal provision in the agreement entered into by the parties was “not only ambiguous but totally incomprehensible” and, therefore, could only be interpreted properly following a trial. We disagree.
[3] The application judge had the benefit of a full record, including affidavits and cross-examinations relating to them. He concluded that “[t]he parties are in total disagreement as to what those rights are or as to what transactions would trigger such rights”. Faced with this combination of ambiguity and conflict, he ordered a trial.
[4] The appellant argues that it is apparent that N5R has agreed that the clause in issue is to be interpreted as requiring N5R to offer HDL any offer N5R has made to other shareholders within the 90-day cooling off period. This, the appellant argues is clear from the position taken by N5R in correspondence and in affidavits. In these, N5R took the position that the clause had not been triggered because no other shareholder was actually paid pursuant to an offer made to other shareholders in that 90-day period. The appellant reasons that, because the record clearly shows that an offer was accepted within the 90-day period and because the application judge found that the respondent’s interpretation that actual payment must be made within the 90- day period is absurd, the application judge ought to have awarded judgment to HDL. Again, we disagree.
[5] The application judge reviewed all of the materials and, although, this issue was not addressed directly in his reasons, it is implicit from these reasons that he rejected it. By taking the position that the clause was not triggered because N5R did not actually pay for the purchase of shares within the 90-day period, N5R did not abandon its basic position. The basic position was that the clause simply does not apply to purchases by N5R of other shares in circumstances such as appear from the materials filed. The clause in issue is intended to address principally situations where, within the 90-day period, the shares acquired by N5R from HDL are resold by N5R for a price exceeding the price at which they were purchased.
[6] We see no basis for interfering with this exercise of discretion by an experienced commercial list judge. Indeed, the application judge’s disposition strikes us as entirely sound.
[7] The appeal is therefore dismissed. Costs to the respondents fixed at $7,500 inclusive of GST and disbursements.
“W.K. Winkler C.J.O.”
“J.C. MacPherson J.A.”
“Paul Rouleau J.A.”