Court File and Parties

Citation: Diniro v. Diniro, 2009 ONCA 683

Date: 20090925

Docket: C49295

Court of Appeal for Ontario

Before: Winkler C.J.O., Sharpe and Armstrong JJ.A.

Between

IN THE MATTER OF 1560804 Ontario Inc. Nickolas Paul Diniro

Plaintiff (Respondent)

and

Alessandro Diniro

Defendant (Appellant)

Counsel: Christopher D. Bredt and Ruth P. Orton-Pert, for the appellant James K. Ball, for the respondent

Heard & released orally: September 11, 2009

On appeal from the judgment of Justice Edward W. Ducharme of the Superior Court of Justice dated July 24, 2008.

Endorsement

[1] This appeal arises from a claim for specific performance of a share purchase agreement.

[2] The appellant argues that the letter agreement upon which the respondent sued lacks the requisite certainty to constitute a binding agreement and that it amounts to no more than an agreement to agree.

[3] The three points of alleged uncertainty raised by the appellant relate to

1. The amount of the mortgage;
2. When interest is to be paid or capitalized; and
3. The nature of the reporting requirements.

[4] The trial judge carefully reviewed the wording of the letter agreement as well as the surrounding factual matrix. An important feature of the factual background is that the parties had worked together in the company and were familiar with its operations and aspects of its financial situation. The trial judge properly considered the letter agreement in that light. He concluded with respect to each of the three points raised before us that the meaning of the agreement was clear and capable of enforcement by specific performance. We see no error in his analysis.

[5] The trial judge found that when read as a whole, the letter agreement provided for a mortgage in the principal sum of $600,000 less the value of any equipment belonging to the corporation that Alessandro admitted to have taken. That finding is clearly supported by the words of the letter agreement and by the evidence, and the value of the equipment is readily ascertainable.

[6] With respect to the payment or capitalization of interest, the trial judge found that the provision in the letter agreement relating to Farm Credit Canada (FCC) approval reflected a simple understanding between the parties that because of FCC’s pre-existing subordination postponement agreement with the company, FCC would have the right to decide when Alessandro would be paid on the mortgage. Again, in our view, that interpretation is fully supported by the evidence of the situation in which the FCC and the parties stood at the time. As with the trial judge’s other findings, this interpretation was solidly based on the wording of the agreement and the evidence and did not amount to the trial judge making an agreement the parties did not make themselves.

[7] Finally, the trial judge found that the provision regarding reporting requirements should be interpreted as requiring Nickolas to report to Alessandro monthly on the indebtedness owed by the corporation in general and to Mastronardi Produce Limited, in particular. Here as well this interpretation is fully supported by the evidence and sufficiently clear to make the agreement enforceable.

[8] Accordingly, the appeal is dismissed. Costs are payable to the respondent in the amount of $4,500 including disbursements and GST.

“W.K. Winkler C.J.O.”

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”