Court of Appeal for Ontario

Date: October 2, 2019 Docket: C66178 Judges: Sharpe, Hourigan and Jamal JJ.A.

Between

Raki Holdings Inc. Applicant (Respondent)

and

Lionheart Enterprises Inc. and 583753 Ontario Inc. Respondents (Appellants)

Counsel

For the Appellants: James M. Wortzman and Karey A. Dhirani

For the Respondents: Neil G. Wilson and Wei Jiang

Heard and Released Orally: September 30, 2019

On Appeal From: The judgment of Justice Gregory M. Mulligan of the Superior Court of Justice, dated October 26, 2018.

Reasons for Decision

[1] The sole issue on this appeal is whether the application judge erred in interpreting the following clause in two agreements between the appellant as vendor and the respondents as purchasers of development lands:

(c) "Net Developable Area" refers to the Gross Area of the property less those lands designated by the Town, the Region or the Toronto and Region Conservation Authority as: Environmental Protection Area 1 lands, Environmental Protection Area 2 lands, Buffer Areas, Zones of Influence, Ecological Corridors and Linkages, including but not limited to valley lands, wetlands, woodlots, open space lands (save and except tableland used for storm water management ponds) and Ecological Restoration Areas, Natural Heritage System as defined by Minister of Natural Resources and/or the Toronto and Region Conservation Authority, Protected Countryside as set out in the Greenbelt Plan (as established by the Province of Ontario) which is currently estimated to be 59.90 acres.

[2] The issue is whether the words in parenthesis that have the effect of including tableland used for storm water management ponds in the definition of Net Developable Area apply to lands defined as Protected Countryside as set out in the Greenbelt Plan.

[3] The application judge held that they did not, and we see no error in his finding. We agree with the submission of the respondent that to achieve the interpretation sought by the appellant it would be necessary to rewrite the agreement between the parties and move the words in parenthesis from where they are to the end of the clause.

[4] The central point made by appellant before us is that the Greenbelt lands were designated as open space lands by the town and that they therefore fall within the exception. We do not accept that submission.

[5] The terms "open space lands" and "Greenbelt" lands have distinct meanings and are subject to different planning controls. At the time of closing, the Greenbelt lands had not been designated as open space lands. Moreover, the parties were aware that it might be possible to put the storm water management ponds on the Greenbelt lands. The exception in the agreement did not apply to the Greenbelt Plans at the time of closing and that did not change when the town subsequently designated the lands as open space.

[6] Accordingly, the appeal is dismissed. In accordance with the agreement between the parties, costs payable by the appellants to the respondents fixed at $35,000, inclusive of disbursements and taxes.

"Robert J. Sharpe J.A."

"C.W. Hourigan J.A."

"M. Jamal J.A."