COURT OF APPEAL FOR ONTARIO

CITATION: Siskinds LLP v. Canadian Imperial Bank of Commerce, 2015 ONCA 265

DATE: 20150417

DOCKET: C58998

Hoy A.C.J.O., Cronk and Watt JJ.A.

BETWEEN

Siskinds LLP

Plaintiff (Appellant)

and

Canadian Imperial Bank of Commerce

Defendant (Respondent)

Counsel:

Earl A. Cherniak and Jason Squire, for the plaintiff (appellant)

Paul H. Le Vay and Justin Safayeni, for the defendant (respondent)

Heard: April 13, 2015

On appeal from the judgment of Justice D. M. Brown of the Superior Court of Justice, dated May 28, 2014.

ENDORSEMENT

[1] The appellant, Siskinds LLP, performed collection work on behalf of the respondent, Canadian Imperial Bank of Commerce, under the terms of a written agreement. The respondent terminated the agreement. The parties disagreed about the interpretation of a provision in the agreement providing that upon termination, the appellant could invoice the respondent “for Services performed up to the date of termination of the Agreement.” The motion judge agreed with the interpretation advanced by the respondent and dismissed the appellant’s motion for partial summary judgment, granted the respondent’s cross-motion for summary judgment, and dismissed the appellant’s action.

[2] The appellant argues that the motion judge committed reviewable error in interpreting the agreement.

[3] We disagree.

[4] In essence, the appellant simply disagrees with the motion judge’s interpretation and invites this court to adopt a different one. Deference is owed to the motion judge’s interpretation of the agreement: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, at para. 52. The motion judge made no palpable and overriding error. The key facts were not in dispute. The motion judge considered and applied properly the applicable principles of contract interpretation as well as the factors relevant to the application of those principles to the provision at issue.

[5] Nor has the appellant identified any extricable question of law in the motion judge’s analysis. The appellant submits, for example, that the motion judge erred in law by regarding “the characteristics of [the] ‘work/commission payment profile’” between the parties as irrelevant to the interpretation of the contractual provision at issue.

[6] Again, we disagree.

[7] The motion judge’s impugned comment must be read in context. When the entirety of his reasons are considered, as they must be, it is apparent that the motion judge appreciated and took account of the nature of the commission arrangement between the parties, the timing of the work performed referable to the timing of debt recoveries, and the basis of the historical billing arrangement between the parties. As we read his reasons, having considered these factors, the motion judge simply concluded that they were not controlling of the meaning to be accorded to the words used by the parties in the agreement. We see no error of law in this conclusion.

[8] At the end of the day, the motion judge was faced with competing interpretations of the disputed contractual provision. He rejected the interpretation urged by the appellant for clear and cogent reasons. He held, among other matters, that the appellant’s proposed interpretation would require “a radical change in the methodology for calculating [the appellant’s] compensation” that was nether specified in or contemplated by the agreement. Nor was it consistent with the language of the provision as a whole or the historical commission structure and pattern of dealings between the parties. We agree.

[9] Finally, we are not persuaded that Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 SCR 494, which was decided after the motion judge released his judgment and recognized a general duty of honesty in contractual performance, assists the appellant. Bhasin does not affect the interpretation of the provision at issue.

[10] In these circumstances, there is no basis to interfere with the motion judge’s carefully reasoned judgment.

[11] The appeal is dismissed. The respondent is entitled to its costs of the appeal, in the agreed amount of $20,000, inclusive of disbursements and HST.

“Alexandra Hoy A.C.J.O.”

“E.A. Cronk J.A.”

“David Watt J.A.”