Quickie Convenience Stores Corp. v. Parkland Fuel Corporation
[Indexed as: Quickie Convenience Stores Corp. v. Parkland Fuel Corp.]
Ontario Reports
Court of Appeal for Ontario
Feldman, Fairburn and Nordheimer JJ.A.
July 10, 2020
151 O.R. (3d) 778 | 2020 ONCA 453
Case Summary
Conflict of laws — Choice of law — Contracts — Parties having lease agreements regarding fuel stations in Ontario and Quebec — Appellant seeking to sell stations — Application judge finding respondent unreasonably withheld consent, but dismissing application for declaratory relief based on choice of law and forum selection terms — Judge erred in at least not granting partial relief and in failing to apply strong cause test to forum selection clause — Appeal allowed.
Conflict of laws — Forum selection clause — Parties having lease agreements regarding fuel stations in Ontario and Quebec — Appellant seeking to sell stations — Application judge finding respondent unreasonably withheld consent, but dismissing application for declaratory relief based on choice of law and forum selection terms — Judge erred in at least not granting partial relief and in failing to apply strong cause test to forum selection clause — Appeal allowed.
Contracts — Duty of good faith — Parties having lease agreements and credit/debit card agreements regarding fuel stations in Ontario and Quebec — Appellant seeking to sell stations — Application judge finding respondent unreasonably withheld consent for lease agreements, but dismissing application for declaratory relief based on choice of law and forum selection terms — Judge making no separate finding regarding credit/debit card agreements — Requirement of consent for assignment carried implied understanding that consent would not be unreasonably withheld — Appeal allowed.
The appellant owned and operated a chain of convenience stores, several of which included gasoline service stations. Fifteen of those stations received their fuel from the respondent, a large fuel supply company. The stations and their fuel supply were governed by various lease and sublease agreements. The appellant and respondent were also parties to 14 credit/debit card agreements. The appellant sought to sell eight of its Ontario stations and seven of its Quebec stations, which required assigning the leases and, in some cases, the credit/debit card agreements. The leases contained an assignment clause and, in most instances, both a forum selection clause and a choice of law clause. When informed of the potential sale, the respondent expressed a willingness to waive its rights of first offer to purchase and consent to the appellant's assignment of the agreements. The respondent made the waiver and consent contingent on the appellant's agreement to a five-year extension to the existing agreements. The appellant declined the extension. After the appellant received an offer to purchase the 15 stations, the respondent maintained its refusal to consent to the assignments. The appellant applied for a declaration that the respondent had unreasonably withheld its consent to the assignments and for an order compelling such consent. The application judge found that consent was unreasonably refused. However, the judge also said that the appellant had not presented any evidence as to why Ontario law was selected for some of the Quebec stations, nor had it presented evidence as to Quebec law. As such, the judge held [page779] that he could not grant the relief sought with respect to the two leases containing the Quebec choice of law terms and he was hesitant to grant the relief with respect to the two leases containing no choice of law or forum selection terms. He dismissed the application. The appellant appealed.
Held, the appeal should be allowed.
The application judge erred in not dealing with the application as it related to the Ontario gas stations. Although the appellant sought declarations for all 15 stations, there was nothing in the record nor was there any sensible commercial approach to hold that the appellant either had to score a complete victory or leave without any remedy at all, especially since the transactions spanned two provinces. Given the application judge's findings about the respondent's conduct, the appellant should have been granted the declaratory relief it sought with respect to at least the Ontario stations.
Neither the choice of law clause nor the forum selection clause posed any true impediment to the application judge deciding the issues that were before him with respect to the Quebec gas stations. The application judge took the test relating to when a court will depart from a forum selection clause and used it in determining the impact of the choice of law clause. The judge erred in finding that the appellant bore the onus of establishing whether Quebec law was the same as Ontario law. In seeking not to apply the forum selection clause, the appellant met the strong cause test, which the application judge failed to apply. With one sale contemplating multiple contracts, and with commercial reality favouring having issues raised from the transaction dealt with in a single forum, plus a desire to avoid multiplicity of proceedings, and with no evidence of any difference between Quebec and Ontario law nor any evidence that the respondent had a genuine desire beyond procedural advantage to have some issues determined in Quebec, there were exceptional circumstances justifying a departure from the general principle that forum selection clauses would be enforced.
With respect to the credit/debit card agreements, the requirement of consent to be assigned carried with it an implicit understanding that such consent would not be unreasonably withheld. The appellant's argument on that ground relied on different authority as between the motion and the appeal, but the general issue of unreasonably withheld consent was before the motion judge so the respondent had no valid procedural objection to the argument. The application judge found that the respondent's refusal to consent to the assignment of the leases was a prohibited attempt to obtain benefits exceeding its rights in those contracts. The application judge did not make any separate finding regarding the respondent's reason for refusing to consent to the assignment of the credit/debit card agreements, but it followed that the same conclusion regarding the respondent's motive that he found regarding the leases would apply.
Other cases referred to
Bhasin v. Hrynew, [2014] 3 S.C.R. 494, [2014] S.C.J. No. 71, 2014 SCC 71,; Expedition Helicopters Inc. v. Honeywell Inc. (2010), 100 O.R. (3d) 241, [2010] O.J. No. 1998, 2010 ONCA 351 [Leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 258]; Kaiman v. Graham, [2009] O.J. No. 324, 2009 ONCA 77, 45 E.T.R. (3d) 163; R. v. Sweeney (2000), 50 O.R. (3d) 321, [2000] O.J. No. 3534; Uber Technologies Inc. v. [page780] Heller, [2020] S.C.J. No. 16, 2020 SCC 16, 2020 CSC 16; The "Eleftheria", [1969] 1 Lloyd's Rep. 237, [1970] P 94, [1969] 2 All E.R. 641 (Adm. Div.)
Statutes referred to
Commercial Tenancies Act, R.S.O. 1990, c. L.7, s. 23(2) [as am.]
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 138
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 14.05(3)(d), 38.10(1)
Authorities referred to
Lord Collins of Mapesbury et al., eds., Dicey, Morris & Collins on the Conflict of Laws, 15th ed. (London: Sweet & Maxwell, 2012)
APPEAL from an order denying an application for declaratory relief.
William C. McDowell and Brian Kolenda, for appellant.
Linda M. Plumpton and Jonathan Silver, for respondent.
NORDHEIMER J.A.: —
A. Overview
[1] Quickie Convenience Store Corp. appeals from the dismissal of its application for declaratory relief arising out of a proposed commercial transaction. The proposed commercial transaction involved several contracts, including leases and credit/debit card agreements, all relating to fuel stations in Ontario and Quebec. The appellant had put those fuel stations up for sale. Completion of the sale required that the appellant be able to assign these contracts. Parkland Fuel Corporation, the respondent, refused to consent to the assignments. The appellant sought a declaration that the respondent had refused its consent unreasonably. The application judge dismissed the application.
[2] For the following reasons, I would allow the appeal, set aside the order below, and substitute an order granting the declaratory relief.
B. Background
[3] It is not necessary to go into every detail concerning the dealings and relationships between the appellant and the respondent. The basic facts are that the appellant is an Ontario corporation that owns and operates a chain of 52 convenience stores located in Ontario and Quebec. Gasoline service stations are located at 22 of these stores. At issue in this proceeding are 15 of those gasoline service stations which receive their fuel from the respondent. The respondent is a large fuel supply company. [page781]
[4] Of these 15 stations, eight are located in Ontario and seven are located in Quebec. For 12 of the 15 stations, the appellant owns the fee simple interest in the land. For the other three stations, the appellant has a leasehold interest on the land.
[5] The stations and their fuel supply are governed by various lease and sublease agreements. Typically, the appellant's interest in the land is leased to the respondent, and then sub-leased back to the appellant. In addition to these leases, the appellant and the respondent are also parties to 14 credit/debit card agreements.
[6] As already mentioned, the appellant is seeking to sell these 15 stations. To do so, it needs to assign the leases and, in some cases, the credit/debit card agreements.
[7] The leases contain certain terms that are relevant to the relief sought. Specifically, the leases contain an assignment clause, and, in most instances, both a forum selection clause and a choice of law clause. Many of these terms are identical, or substantially similar, in wording. In all but one case, the leases require the respondent's prior written consent in order to be assigned. In the case of 12 of the 15 sites, the leases provide that the appellant "shall not assign [the] lease without the prior written consent" of the respondent and "cannot assign [the] sublease nor sub-sublet the Leased Premises" without the respondent's "prior written consent". In one instance, the lease expressly provides that consent to the assignment "may not be unreasonably withheld".
[8] Schedule A to these reasons outlines the forum selection and choice of law clauses for the 15 stations. In summary, 11 leases stipulate that the governing law shall be Ontario, two stipulate that the governing law shall be Quebec, and two contain no stipulation. Similarly, 11 leases have a forum selection clause naming Toronto, two name Montreal, and two contain no stipulation. It should be noted that the two leases that do not contain a choice of law clause are the same two leases that do not contain a forum clause. Both of the stations that are the subject of those two leases are located in Quebec.
[9] When the appellant decided to sell these stations, it notified the respondent of the sales process, as it was contractually bound to do. The respondent expressed a willingness to waive its rights of first offer to purchase, and consent to the appellant's assignment of the agreements. However, the respondent made its waiver and consent contingent on the appellant agreeing to a five-year extension to the existing leases and credit/debit card agreements. The appellant declined to provide that extension.
[10] As the sale process progressed, in January 2018, the appellant received an offer to purchase the 15 stations (among the appellant's other assets) from a prospective purchaser. The appellant [page782] advised the respondent of this offer. The respondent maintained its refusal to consent to the assignment of the leases and the credit/debit card agreements.
[11] The appellant then brought an application in the Superior Court of Justice in which it sought
(a) a declaration that the respondent has unreasonably withheld its consent to the applicant's assignment of its rights, interests, title, benefits, burdens and liabilities under the:
(i) Lease and Sublease Agreements for the 15 convenience stores listed in Schedule "A" hereto; and
(ii) Credit/Debit Card Agreements for the 14 convenience stores listed in Schedule "B" hereto;
(b) an order compelling the respondent to consent to the applicant's assignment of its rights, interests, title, benefits, burdens and liabilities under the
(i) Lease and Sublease Agreements for the 15 convenience stores listed in Schedule "A" hereto; and
(ii) Credit/Debit Card Agreements for the 14 convenience stores listed in Schedule "B" hereto.
[12] In bringing its application, the appellant relied on s. 23(2) of the Commercial Tenancies Act, R.S.O. 1990, c. L.7 and rule 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
C. The Decision Below
[13] The application judge gave lengthy reasons for dismissing the appellant's application. In those reasons, the application judge made various findings including that
(i) the respondent's notice of refusal to consent to the proposed assignment of leases and subleases was a prohibited attempt to obtain benefits exceeding its rights in those contracts, such as a five-year extension of all category of contracts or the right to purchase the assets of five sites; and
(ii) the respondent unreasonably refused to consent to the proposed assignment to the purchaser of the 14 leases and subleases and the one letter of intent which included a lease provision, pursuant to s. 23(1) of the Commercial Tenancies Act and did not thereby act reasonably as a contractual party pursuant to the common law duty to act in good faith as to those leasing contracts. [page783]
[14] However, the application judge then went on to consider the impact of the choice of law and forum selection clauses. He found that
(i) the respondent had shown that there "is no reason such as fraud or public policy for the reasons stated below, to not enforce the Quebec law and forum selection clauses as to the lease and sub-lease agreements located in that jurisdiction"; and
(ii) the respondent at the first step of the above test "has demonstrated the validity of the election of Quebec as the governing law contractual term, as they are valid, clear, enforceable and apply to the cause of action involving the Quebec sites before the court".
[15] The application judge concluded that the appellant had the onus to show "strong reason or cause why this court should not enforce these commercial parties' selection of Quebec as the governing law as to the contracts which involve the leasing of Quebec property to carry on business in that Province".
[16] The application judge found that the appellant had failed to discharge its onus. Specifically, the application judge said that the appellant had not presented any evidence as to why the parties had selected Quebec as the governing law for some sites and Ontario for other Quebec sites. He also said that the appellant had not presented any evidence as to Quebec law including whether it was the same as or different on the issues before the court.
[17] Consequently, the application judge held that he could not grant the relief sought with respect to the two leases that contained the Quebec choice of law terms and he was "hesitant" to grant the relief with respect to the two leases where there were no choice of law or forum selection terms.
[18] The application judge then dismissed the application.
[19] After the application judge released his reasons, counsel for the appellant wrote to the application judge and inquired whether he had, in fact, intended to dismiss the application in its entirety. Counsel for the respondent wrote and advised the application judge that there was no need to clarify the reasons. The application judge responded by advising counsel that "[g]iven the decision is now under appeal on undisclosed grounds and the fact that Parkland objects to the court providing clarification to the questions posed, it would be inappropriate to issue supplementary reasons at this point". [page784]
D. Analysis
[20] In my view, the application judge erred both in his analysis of the issues that were before him and in his conclusion. Even if his reasoning was correct, and I conclude that it was not, his conclusions regarding the choice of law and forum selection clauses did not address any of the 11 leases that related to the gas stations that were either located in Ontario, or were located in Quebec but had Ontario choice of law, and Toronto forum selection, clauses (collectively, the "Ontario gas stations"). Indeed, given his conclusion that the respondent had unreasonably withheld its consent to the assignment of the leases, it ought to have followed that the appellant would have been entitled to the declarations that it sought, at least with respect to the leases applicable to the Ontario gas stations.
(i) The partial relief issue
[21] The respondent attempts to sustain the application judge's decision to dismiss the application as a whole by submitting that the appellant had pitched its case, and the relief that it sought, on an all or nothing basis. In my view, that submission is inconsistent with the reality of the situation and is also contrary to the prevailing rules regarding the scope of a judge's authority to grant relief in this type of situation.
[22] The appellant wanted relief with respect to all of the leases. It had agreed to sell the 15 gas stations to its prospective purchaser and needed relief respecting all of the gas stations to do so. Understandably, therefore, the appellant cast the relief that it sought at its highest, that is, declarations for all 15 gas stations. However, there is nothing in the record, nor is there any sensible commercial approach, that would hold that the appellant either had to score a complete victory or leave without any remedy at all, especially in the circumstances here where the transaction spanned two provinces. Given that fact, and given the presence of the choice of law and forum selection clauses, it should have been clear to all parties that there was the potential for a court to conclude that it could address the Ontario gas stations but not the Quebec gas stations, for example. Further, it makes no sense for the Ontario court not to deal with the Ontario gas stations since, on the application judge's own analysis, the Quebec court would not deal with the Ontario gas stations.
[23] This approach is also consistent with the Rules of Civil Procedure, specifically rule 38.10(1), which provides, in part: [page785]
38.10(1) On the hearing of an application the presiding judge may,
(a) grant the relief sought or dismiss or adjourn the application, in whole or in part and with or without terms[.]
(Emphasis added)
[24] At a minimum, the application judge should have dealt with the application as it related to the Ontario gas stations. He erred in failing to do so. The respondent's reliance on Sobeski v. Mamo (2012), 112 O.R. (3d) 630, 2012 ONCA 560, to advance its submission, on this point, is misplaced. Given the application judge's findings about the respondent's conduct, the appellant should have been granted the declaratory relief that it sought with respect to at least the 11 Ontario gas stations, even if the appellant then had to go to Quebec to deal with the other four gas stations.
[25] In fact, two of the Quebec gas stations did not have forum selection or choice of laws clauses. Even on the application judge's reasoning, only the two gas stations with Montreal forum selections clauses and Quebec choice of law clauses would have been properly excluded.
(ii) The Quebec gas station leases
[26] That leads to the issue respecting the four Quebec gas stations. Two of those gas stations had leases where there was no choice of law or forum selection clause. Consequently, there was no impediment, of the type found by the application judge, to him dealing with those two gas stations as part of dealing with the Ontario gas stations. Given what I will have to say in a moment about the impact of the choice of law clause, the appellant ought to have obtained the declaratory relief that it sought with respect to those two gas stations as well.
[27] I turn to the last two gas stations, the ones that had a Quebec choice of law clause and a Montreal forum selection clause. Should those clauses have prohibited the application judge from granting relief with respect to those gas stations? I find that they should not.
[28] The application judge erred in his analysis of these clauses in a number of respects. First, the application judge conflated the analysis of these two different clauses. The application judge took the test that relates to when a court will depart from a forum selection clause and used it in determining the impact of the choice of law clause.
[29] Second, the application judge erred in finding that the appellant bore the onus of establishing whether Quebec law was the same as, or different from, Ontario law. That onus rested with the respondent, if it was going to allege that the foreign law was [page786] different from the local law. Indeed, the respondent acknowledged before us that it bore that onus. However, the respondent did not lead any evidence that Quebec law differed from Ontario law with respect to the issues that were before the application judge. In the absence of such evidence, the application judge ought to have proceeded on the basis that the Quebec law was the same as Ontario law: Lord Collins of Mapesbury et al., eds., Dicey, Morris & Collins on the Conflict of Laws, 15th ed. (London: Sweet & Maxwell, 2012), at p. 332; see, also, Uber Technologies Inc. v. Heller, 2020 SCC 16, at para. 50.
[30] Third, the application judge failed to properly apply the strong cause test to determine whether he ought to give effect to the forum selection clause. The law on this is set down in Z.I. Pompey Industrie v. ECU-Line N.V., [2003] 1 S.C.R. 450, 2003 SCC 27. In that decision, the Supreme Court of Canada confirmed that foreign selection clauses are generally to be enforced unless the party seeking to avoid the forum selection clause shows "strong cause" why the clause should not be enforced.
[31] In my view, the appellant has satisfied the strong cause test. In saying that, I am cognizant of the factors relevant to the strong cause test set out in Z.I. Pompey Industrie, at para. 19, as quoted by the Supreme Court of Canada from The "Eleftheria", [1969] 1 Lloyd's Rep. 237 (Adm. Div.). I reach my conclusion for the following reasons.
[32] First, this is not a case of a single contract with a single forum selection clause. Here we have 15 contracts -- 11 of them select Toronto as the forum, two select Montreal, and two have no selection. Second, the contemplated transaction was for the sale of the 15 gas stations as a whole. Commercial reality strongly favours having any issues raised with respect to the transaction dealt with in a single forum. Requiring the parties to litigate the same issue twice, in two different courts, does not advance that commercial reality. Third, there is a general principle that courts will strive to avoid a multiplicity of proceedings. Indeed, that principle is reflected in s. 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Fourth, as I have already noted, there was no evidence that the law as between Quebec and Ontario was any different, nor was there any other evidence that would have established that the respondent would lose any juridical advantage by having to litigate the issue in Toronto, instead of Montreal. On that latter point, I would note that the parties in fact litigated the issues in Ottawa and no one raised any objection to that. I would also note that the parties were as connected to Ontario, if not more so, than they were to Quebec. Fifth, there is no evidence that the respondent genuinely desired to have the issues surrounding these two gas stations [page787] determined in Quebec, as opposed to simply engaging in an effort to gain a procedural advantage.
[33] In summary, the factual situation here presented the type of exceptional circumstances that justified a departure from the general principle that forum selection clauses will be enforced: Expedition Helicopters Inc. v. Honeywell Inc. (2010), 100 O.R. (3d) 241, 2010 ONCA 351, at para. 23, leave to appeal refused [2010] S.C.C.A. No. 258.
[34] In the end result, neither the choice of law clause nor the forum selection clause posed any true impediment to the application judge deciding the issues that were before him with respect to the Quebec gas stations.
(iii) The credit/debit card agreements
[35] This leaves the issue regarding the credit/debit card agreements. They are not subject to the Commercial Tenancies Act, and the provision therein prohibiting the unreasonable withholding of consent to an assignment.
[36] The credit/debit card agreements contained a clause that simply said that the appellant could not assign the agreement without prior written consent. The respondent submits that, absent an express provision in the credit/debit card agreements providing that consent cannot be unreasonably withheld, the respondent was entitled to withhold its consent in this case. The appellant submits that the prohibition against withholding consent unreasonably should be implied into the credit/debit card agreements on the principles of good faith bargaining, as set out in Bhasin v. Hrynew, [2014] 3 S.C.R. 494, 2014 SCC 71.
[37] Before addressing the substance of this issue, I must address the respondent's preliminary objection that the appellant ought not to be able to advance this argument because they did not make it before the application judge. The appellant acknowledges that counsel below did not rely on Bhasin to argue that the respondent unreasonably withheld consent to the credit/debit card agreements. However, it submits that the general issue of whether the respondent unreasonably withheld consent was before the judge, as were the principles established in Bhasin.
[38] In my view, the respondent takes an unduly restrictive approach to whether this is the type of argument that this court will generally decline to hear for the first time on an appeal. To begin, the principle that courts should generally decline to hear a new issue on appeal is not an absolute rule. It is a discretionary decision to make based on the facts of the individual case: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18. Further, it is clear that the issue of whether the respondent unreasonably withheld [page788] consent to an assignment of the credit/debit card agreements was squarely before the application judge. The fact that the appellant invokes different authority now, than it did before the application judge, does not offend the principle: R. v. Sweeney (2000), 50 O.R. (3d) 321 (C.A.), at para. 32.
[39] In considering the issue, the application judge was obliged to apply any law that was applicable and binding on him. On that point, the principles in Bhasin were directly before the application judge. I would note that it was the respondent who drew the application judge's attention to that case, albeit for a different purpose. I would not give effect to the respondent's procedural objection.
[40] The question then is whether an agreement that requires consent to be assigned carries with it an implicit understanding that consent to an assignment will not be withheld unreasonably. I agree with the appellant on this point. I conclude that a provision in a contract that requires one party to consent to the assignment of the contract by the other party, has implicit in it the requirement that the party, whose consent is necessary, will not withhold that consent for an improper or ulterior purpose. In my view, the imposition of a good faith obligation, on the decision whether or not to consent, is consistent with the approach to be taken to contracts generally, as enunciated in Bhasin.
[41] In Bhasin, Cromwell J. outlined the organizing principle of good faith that applies to all contracts. It requires that parties to a contract act honestly in the performance of their obligations. In that decision, Cromwell J. established certain duties that rest on parties to a contract. These include
(i) parties generally must perform their contractual duties honestly and reasonably and not capriciously or arbitrarily; and
(ii) a contracting party should have appropriate regard to the legitimate contractual interests of the contracting partner: Bhasin, at paras. 63 and 65.
[42] The application judge found that the respondent's refusal to consent to the assignment of the leases was "a prohibited attempt to obtain benefits exceeding its rights in those contracts". More specifically, the respondent was attempting to leverage its refusal to consent to force the appellant to agree to a five-year extension of their contractual arrangements.
[43] The application judge did not make any separate finding regarding the respondent's reason for refusing to consent to the assignment of the credit/debit card agreements, but it follows that the same conclusion regarding the respondent's motive, that he found regarding the leases, would apply. The parties were not [page789] drawing any distinctions between these agreements when it came to the issue of assignment. All of the agreements between the parties were the subject of the appellant's proposed sale. They were all to be assigned to the prospective purchaser as part of the sale transaction. The respondent's objective in withholding its consent was the same regardless of whether we are speaking about the leases or about the credit/debit card agreements. Its objective was to extract an extension of the existing contractual arrangements, something to which it was not otherwise entitled. The same conduct that underpins the trial judge's findings about the respondent's dealings in relation to the leases applies to its dealings in respect of the credit/debit card agreements. It reflected bad faith dealing. It is not unlike the conduct in which the defendants engaged in Bhasin.
[44] The respondent's refusal to consent to the assignment of the credit/debit card agreements was as unreasonable or improper as was its refusal to consent to the assignment of the leases. It was inconsistent with the duty of good faith that the respondent owed to the appellant. It was also inconsistent with giving appropriate regard to the legitimate contractual interests of the appellant, that is, the appellant's legitimate interest in wishing to sell these gas stations. The appellant was entitled to expect that the respondent would act fairly and honourably in deciding whether to consent to the assignment of these agreements as part of a sale of the appellant's businesses to a third party. On that point, there was no evidence that the prospective purchaser's performance of the leases and the credit/debit card agreements would pose any financial or other risk to the respondent.
[45] There was no principled basis for the respondent's refusal to consent to the assignment of the credit/debit card agreements. I would also observe that there would be a measure of inconsistency in a conclusion that the respondent had unreasonably withheld its consent to the assignment of the leases but not to the assignment of the credit/debit card agreements.
E. Conclusion
[46] I would allow the appeal, set aside the order below and, in its place, grant an order providing the appellant with the declaratory relief that it sought in its notice of application.
[47] The appellant is entitled to its costs of the appeal fixed in the agreed amount of $35,000, inclusive of disbursements and HST. It would seem that the appellant ought to be entitled to its costs of the original application as well but if the parties cannot agree on that point, they may make written submissions. The appellant's submissions shall be delivered within ten days of the date [page790] of these reasons and the respondent's submissions shall be delivered within ten days thereafter. Each party's submissions shall be limited to three pages.
Appeal allowed.
SCHEDULE A
End of Document