Furr v. Duhamel, 2019 ONCA 824

Case Summary

The appellant appealed a judgment of the Superior Court of Justice determining that fencing and a retaining wall along Greenfield Avenue in Ottawa constituted "Shared Property" under a Co-Tenancy Agreement dated December 15, 1998, governing a townhouse development known as Kings Landing. The Court of Appeal upheld the lower court's contractual interpretation, finding no palpable and overriding error and no extricable question of law. The application judge had correctly articulated and applied the principles of contractual interpretation and read the contract as a whole. The appeal was dismissed with costs fixed at $20,500 including HST and disbursements.

Court of Appeal for Ontario

Date: October 16, 2019 Docket: C65321

Judges: Hoy A.C.J.O., van Rensburg and Roberts JJ.A.

Between

Steven Furr and Kathleen Lundgren Applicants (Respondents)

and

Michel Duhamel, Emmy Verdun, and Jack Hughes, and The Kings Landing Co-Tenancy Committee Respondents (Respondents)

and

Paulette Martel Intervener (Appellant)

Counsel

Bruce F. Simpson, for the appellant

Eric Appotive and Allison Russell, for the respondents

Heard and released orally: October 11, 2019

On appeal from: The judgment of Justice Robert Beaudoin of the Superior Court of Justice, dated April 4, 2018, with reasons reported at 2018 ONSC 1780.

Reasons for Decision

[1] The appellant appeals the judgment of the application judge determining that the fencing and retaining wall along Greenfield Avenue, in Ottawa, are "Shared Property" within the meaning of the Co-Tenancy Agreement, dated December 15, 1998, that governs a townhouse development known as "Kings Landing".

[2] The matter before the application judge was one of contractual interpretation. Contractual interpretation involves issues of mixed fact and law. The application judge's interpretation is therefore entitled to deference, absent a palpable and overriding error. Occasionally, an extricable question of law arises out of the interpretation of a contract. Deference is not owed on such questions.

[3] In our view, the appellant seeks to re-argue the interpretation of the Co-Tenancy Agreement. The application judge carefully considered the factual matrix. In her factum and in oral argument today, the appellant has not identified any palpable and overriding error. Nor has she identified any extricable question of law. The application judge correctly articulated and applied the principles governing the interpretation of a contract. Contrary to the appellant's submission, he read the contract as a whole.

[4] Accordingly, the appeal is dismissed. The respondents are entitled to their costs of the appeal, as agreed, fixed in the amount of $20,500, including HST and disbursements.

"Alexandra Hoy A.C.J.O."

"K. van Rensburg J.A."

"L.B. Roberts J.A."