Court File and Parties
Court of Appeal for Ontario Date: 20210521 Docket: C68682
Before: Huscroft, Paciocco and Jamal JJ.A.
Between: Horn Ventures International Inc. Applicant (Respondent)
And: Xylem Canada Company (Formerly ITT Canada Ltd.) Respondent (Appellant)
Counsel: Scott Kugler, Jennifer Danahy, and Cathleen Brennan, for the appellant Kyle Armagon, for the respondent
Heard: May 12, 2021 by video conference
On appeal from the order of Justice Grant R. Dow of the Superior Court of Justice, dated September 9, 2020.
Reasons for Decision
[1] The appellant argues that the application judge erred in declaring that an obligation to purchase set out in the parties’ 1996 lease remains in effect through subsequent lease renewals.
[2] We disagree.
[3] The application judge was required to interpret a series of contractual documents in order to determine the nature of the parties’ agreement. As the Supreme Court of Canada explained in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, contractual interpretation involves issues of mixed fact and law. The application judge’s decision is entitled to deference, in the absence of a palpable and overriding error.
[4] We see no such error.
[5] It was open to the application judge to conclude that the respondent’s “Obligation to Purchase” following environmental remediation by the appellant established a deferred purchase agreement and that this agreement was renewed by the subsequent lease renewals. The application judge considered the relevant authorities. His decision is entitled to deference and there is no basis for this court to interfere with it.
[6] The appeal is dismissed. The respondent is entitled to costs in the agreed amount of $20,000, all inclusive.
“Grant Huscroft J.A.”
“David M. Paciocco J.A.”
“M. Jamal J.A.”
