Court of Appeal for Ontario

Citation: Humberplex Developments Inc. v. Wycliffe Humberplex Limited, 2011 ONCA 591

Date: 20110913

Docket: C53363

Before: Sharpe, Armstrong and Rouleau JJ.A.

Between

Humberplex Developments Inc.

Applicant/Appellant

and

Wycliffe Humberplex Limited

Respondent/Respondent

Counsel:

Alistair Riswick, for the appellant

Alan J. Lenczner, Q.C., for the respondent

Heard & released orally: September 6, 2011

On appeal from the judgment of Justice Peter A. Cumming of the Superior Court of Justice dated January 24, 2011.

ENDORSEMENT

[1] The order under appeal involves the interpretation of a release executed by the parties following the settlement of a protracted dispute.

[2] In our view, the application judge did not err in his interpretation of the release as covering the claim for removal of excess fill. There was evidence that the facts giving rise to that claim were known to the appellant at the date the release was executed. The demand to remove the excess fill was made within days of the execution of the release providing ample factual support for the trial judge’s inferences and interpretation.

[3] With respect to the claim related to the letter of credit, we agree with the respondent that given the state of completion of the respondent’s lot and the history of dealings between these parties, the application judge did not err in paragraph 1 of his order reducing the letter of credit and imposing additional terms.

[4] Accordingly, the appeal is dismissed. Costs to the respondent fixed at $7,500 inclusive of disbursements and applicable taxes.

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”

“Paul Rouleau J.A.”