SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Pegah Construction Ltd., Plaintiff

AND:

Panterra Mansions Joint Venture Corp., 1221456 Ontario Limited, 1746288 Ontario Inc., Lombard General Insurance Company of Canada, Romspen Investment Corporation and Howard Kutner, Defendants

BEFORE: D. M. Brown J.

COUNSEL:
K. Bannon and S. Lakhani, for the Plaintiff

D. Preger and M. Brezinski, for SF Partners Inc., in its capacity as Receiver of the assets of Panterra Mansions Joint Venture Corp.

M. Steidman, for the defendants, 1746288 Ontario Inc. and Romspen Investment Corporation

HEARD: April 2, 2014, with further written submissions dated April 3 and 4, 2014.

REASONS FOR DECISION

I. Motions to oppose the confirmation of a Master’s interim report under the Construction Lien Act

[1] By Interim Report dated October 28, 2013, Master Albert declared that the relationship between Panterra Mansions Joint Venture Corp. and Pegah Construction Ltd. was one of owner and general contractor, and she ordered 1746288 Ontario Inc. and Romspen Investment Corporation to pay the plaintiff, Pegah, costs fixed at $68,421.97. SF Partners, in its capacity as court-appointed receiver and trustee of Panterra Mansions Joint Venture Corp., Romspen Investment Corporation and 1746288 Ontario Inc. moved to oppose the confirmation of the Interim Report.

[2] This is not a young case. Six years ago, by order made June 26, 2008, Wilton-Siegel J. referred this dispute for a trial of an issue before a Master. Pre-trials were heard from December 2, 2008 until December 10, 2012. A trial of a “threshold issue” finally was conducted in May, 2013, resulting in written reasons of the Master dated May 31, 2013 (the “Reasons”) and a formal Interim Report dated October 28, 2013. The individual lien claim actions were held in abeyance pending the outcome of the trial of the threshold issue.

[3] For the reasons set out below, I dismiss the motions to oppose confirmation.

II. Issue before the Master

[4] Panterra Mansions Joint Venture Corp. (“Panterra”) owned 539 Jarvis Street, Toronto, a development project known as the Jarvis Mansions. Panterra contracted with Pegah Construction Ltd. (“Pegah”) to renovate the existing building and construct a high-rise addition to create a total of 34 condominium units. Mr. Ali Mohtashami was the President of Pegah; Sheldon Rosen was an officer and director of Panterra.

[5] The mortgagees ultimately placed Panterra into receivership and appointed SF Partners Inc. as the receiver.

[6] Pegah and several contractors registered construction liens against the property. The issue of the priority of the claimants turned, in part, on the structure of the relationship between Panterra and Pegah.

[7] The 5-day trial of the issue which took place before the Master considered whether the relationship of Panterra and Pegah was one of owner and general contractor, or that of owner and project manager.

[8] Pegah took the position that it had acted as general contractor with the result that the Receiver’s holdback obligation had to be calculated as 10% of the total value of materials and services supplied under its contract with Panterra. It took that position notwithstanding that its contract with Panterra described it as a construction manager.

[9] The Receiver took the position that Panterra had contracted with Pegah to provide construction management services as Panterra’s agent, and not as general contractor. As a result, the Receiver argued, the holdback obligation had to be calculated on a contract-by-contract basis with trade contractors. The mortgagees, Romspen and 1746288, supported the Receiver’s position.

[10] The financial significance of the characterization of the relationship between Panterra and Pegah was summarized as follows by the Master:

Distribution of funds retained by the receiver depends on priorities which, in turn, depends on the structure of the relationship of Panterra and Pegah. If Panterra’s position that Pegah acted as construction manager and agent is correct then its holdback obligation is significantly lower, leaving more funds available for distribution by the receiver to mortgagees Romspen and 174…

[11] That result arises from a series of cases dealing with the method for calculating the statutory holdback in circumstances where the supplier has contracted directly with the owner. The principle emerging from those cases – often referred to as the principle in Dufferin Concrete Products v. Waterbrooke Development Ltd. - is that the proper holdback of a lien claimant who has a direct contract with the owner is 10% of the unpaid contract.[^1] The principle was explained in the following way in Kirsh and Alter: A Guide to Construction Liens in Ontario, Third Edition:

In circumstances where the owner contracts directly with the trades rather than with a general contractor, the 10 per cent holdbacks required to be retained by the owner will be determined by reference to each individual contract, rather than by reference to all contracts entered into for the whole project or improvement…

It is important to note that the method for calculating the holdbacks contemplated in these decisions applies where the owner contracts directly with the claimants in a series of separate contracts. Other cases have considered the method for calculating the holdbacks required to be retained by the owner where an owner contracts with a general contractor, who in turn contracts with a subcontractor. Those decisions have held that the holdbacks required to be retained by the owner are for 10 per cent of the amount of the value of services and materials supplied on account of the contract price between the owner and the general contractor.[^2]

[12] Counsel for the Receiver stated in oral argument that if the relationship between Panterra and Pegah was that of owner-agent, the amount of the holdback required was about $100,000. If, however, the relationship was that of owner-general contractor, the amount of the holdback would be about $730,000. The fight, so to speak, was between construction lien claimants and a second mortgagee in the circumstance of a project which would suffer a significant overall shortfall.

[13] Master Albert found that Panterra and Pegah had contracted as owner and general contractor.

II. The standard of review

[14] The standard of review applicable upon a motion to oppose the confirmation of a report of a master of a trial of a reference was summarized by Fregeau J. in International Wall Systems Ltd. v. English Lane Residential Developments Ltd.:

In Zeitoun v. Economical Insurance Group 2008 20996 (ON SCDC), 2008 CarswellOnt 2576, at para. 34, Low J. suggested that there is probably no function more analogous to that of a judge at trial than that of a master conducting a trial on a reference on viva voce evidence. Low J. accepted the comments of Anderson J. in Jordan v. Mckenzie 1987 CarswellOnt 573, at para. 10, that the standard of review on a contested confirmation of a report from a reference is that on a true appeal and not on the basis of a hearing de nova. The result should not be interfered with unless there has been some error in principle demonstrated by the master's reasons, some absence or excess of jurisdiction, or some patent misapprehension of the evidence.

In regard to a trial judge's findings of fact, the applicable standard of appellate review is well established. An appeal court "should not interfere with a trial judge's reasons unless there is a palpable and overriding error….

[15] Where the decision under review involves the interpretation of a contract, the fact-finding functions involved in such an exercise – e.g. the determination of the factual context in which the contract was negotiated and considerations of extrinsic evidence – are to be addressed from the palpable and overriding error perspective. In its other aspects, the contractual interpretation exercise is essentially a legal one attracting a standard of review closer to the “correctness” end of the spectrum.[^3]

III. The Reasons of Master Albert

[16] Panterra and Pegah executed a May 4, 2005 contract, which was later amended to deal with the payment of part of the budget price. That contract was made against the larger backdrop of the Construction Lien Act which regulated aspects of the relationships amongst those involved in the Jarvis Mansions Project. Master Albert wrote:

24. The triable issue of the structure of the relationship of Panterra and Pegah arises because the parties executed a CCA 5 1988 form of contract (the “CCA 5”), designed for use by an owner and construction manager where the construction manager acts as agent of the owner, but modified by the parties to incorporate features that are inconsistent with an agency structure. The contract labels and refers to Panterra as the owner and Pegah as the construction manager.

25. The parties added and amended three critical clauses:

a. GC 3.1: The parties amended the CCA 5 clause whereby the construction manager arranges for contracts with trade contractors as agent of the owner, and added an alternative option authorizing the construction manager to contract with trades directly and not as agent of the owner.

b. A-16: The parties amended the CCA 5 by adding a new clause whereby the construction manager takes on the risk of cost overruns, calculated as 50 percent up to $150,000.00 over budget and 100 percent of cost overruns above that threshold. In substance this clause increased the budget by $150,000.00 but required Pegah to pay for half of the increase and all costs above the increased budget. Article A-16 also provided that the parties would share cost savings if the project was completed under budget.

c. A-5 and GC–10: The parties amended the CCA 5 clause that provides for the construction manager’s fee to be paid monthly and replaced it with a schedule for percentage payments of the fee based on construction milestones.

26. The issue is whether the contract, as modified, transformed the structure from one of owner and construction manager to one of owner and general contractor. It is a matter of substance over form.

[17] The Master found that an ambiguity existed in the language of Section GC 3.1 and she admitted extrinsic evidence to resolve the ambiguity. That said, the Master went to state that:

34. …I agree and have disregarded subjective evidence of intention of all witnesses. My findings as to the parties’ intentions are based on the written contract and their conduct as they performed the contract.

[18] The Master’s analysis focused on the effect of the amendments made to the standard form CCA 5 construction contract on the nature of the relationship between Panterra and Pegah in the larger context of calculating statutory holdback obligations. She wrote, in part:

29. Clause A-16 was added to serve two purposes: (i) as an incentive to Pegah to minimize costs by sharing financially in any cost savings; and (ii) as a disincentive for cost overruns because Pegah was ultimately liable for cost overruns, after sharing the first $150,000.00. In an agency structure all cost savings would flow to the owner, and all cost overruns would be the sole responsibility of the owner. In a general contracting structure cost savings would flow to the general contractor and all cost overruns would be the sole responsibility of the general contractor. In the contract between Panterra and Pegah cost savings were to be shared and cost overruns beyond the increased threshold were the sole responsibility of Pegah.

30. In my opinion, if the court finds that the amendment to article GC 3.1 creates a structure akin to owner and general contractor then the requirement to secure the approval of the owner does not change that structure to one of agency. There are many reasons why an owner may contract for approval rights over trades working on its project. One reason might be to ensure that trades with whom the owner has had a prior negative experience are not hired. Failure to secure Panterra’s written approval for each trade contract would not change the structure from one of direct contracts with trades to one of agency with the contract rights and obligations vis-a-vis the trades attaching to Panterra in place of Pegah. In any event, I find that the contract did not require that Panterra’s approval be written. Mr. Rosen, as project architect, consultant and principal of the owner, was on site regularly and knew or ought to have known what trades were working on the project. There is no evidence of any occasion where Mr. Rosen challenged or refuted Pegah’s hiring of a trade directly without obtaining Panterra’s written approval.

That led the Master to conclude:

41. The parties negotiated and deliberately added a clause to shift the risk of runaway project costs from Panterra to Pegah with a guaranteed a maximum price (the budget plus $150,000.00 over budget to be shared). Panterra had no risk of cost overruns above the increased threshold. Pegah took on 100 percent of that risk.

42. The parties negotiated and deliberately inserted a clause into the contract whereby Pegah could contract with trades directly and not as Panterra’s agent.

43. In fact, Pegah contracted directly with all but one trade…

44. I find that the contract creates a hybrid structure. It defines a construction manager as an agent and creates an agency relationship, but there is no evidence of a single instance where Pegah arranged for a trade contract as Panterra’s agent. The contract also contemplates that Pegah, still labelled the construction manager, may act independently and not as Panterra’s agent to enter into direct contracts with trades. That is, in fact, how the parties conducted themselves in performing the contract.

45. I find that the contract between Panterra and Pegah contemplates a general contracting structure. While it is not necessary to go beyond the contract to make this finding, the parties’ conduct in performing the contract is consistent with a general contracting structure.

46. Mr. Rosen and Mr. Mohtashami are both sophisticated businessmen. Both of them have many years of experience in the industry. They negotiated a deal that was a hybrid between a general contract structure and a project management structure. In committing their agreement to writing they modified the CCA 5 form of contract. Their modifications introduced elements of risk and responsibility that are consistent with a general contract structure and inconsistent with a construction management structure.

47. I find that the structure of the contract is in substance one of owner and general contractor. The critical features of a general contract of risk for cost overruns and liability to trades for payment are present, and the critical features of a construction management structure have been diluted so extensively as to render the label “construction manager” incapable of bearing its ordinary meaning.

[19] In reaching that conclusion the Master applied the factors considered by the court in Centrum Renovations & Repair Inc. v. Ditta[^4] in determining whether the structure was one of general contractor or construction manager. Master Albert also gave consideration to the analysis contained in an article published by David Bristow, Q. C., entitled “An Overview of Three Commonly Used Construction Contracts – Stipulated Price Contract, Construction Management and Design Build”.

IV. Analysis

A. Summary of grounds of opposition to confirmation

[20] In their notices of motion the moving parties raised numerous grounds of objection to the Master’s conclusion that Pegah was a general contractor. I have grouped their main grounds of appeal as follows:

(i) The master erred in finding ambiguity in the contract, as a result of which she re-wrote the contract, added her own words to it to give it a meaning not intended by the parties and mis-characterized “terms” of the contract as “labels”;

(ii) The master erred in her consideration of the issue of which party assumed financial risk in interpreting the contract;

(iii) The master erred in considering external notions of industry standards to rewrite the Contract; and,

(iv) The master erred in allowing evidence of the plaintiff’s subjective view about the contractual arrangement to “creep into her reasoning”.

Let me consider each ground of opposition in turn.

B. First Ground of Opposition: The master erred in finding ambiguity in the contract, as a result of which she re-wrote the contract, added her own words to it to give it a meaning not intended by the parties, and mis-characterized “terms” of the contract as “labels”.

[21] The Reasons of the Master must be read as a whole. The Master properly informed herself on the principles of contractual interpretation (Reasons, para.9) and the circumstances in which extrinsic evidence may be considered (Reasons, para. 10). Applying those principles, the Master concluded that section GC 3.1 of the Contract was ambiguous because it was capable of more than one meaning and that the section was a critical one in the contract “because it is at the crux of whether Trade Contractors contract directly with Panterra through Pegah as Panterra’s agent, or whether they contract directly with Pegah as general contractor, not as Panterra’s agent” (Reasons, para. 17).

[22] I see no basis to interfere with those findings. Where a written contract is reasonably susceptible of having more than one meaning, it contains an ambiguity which permits the admission of extrinsic evidence to determine which meaning is preferable.[^5] In the present case, Panterra and Pegah had used an industry standard form contract – the Canadian Standard Construction Management Contract Form Between Owner and Construction Manager, CCA Document No. 5, 1988 (the “Standard Contract”). However, they made amendments to it, and the Master’s analysis focused on the legal significance of those amendments.

[23] One conclusion she reached was that the amendment made by the parties to Standard Contract section GC 3.1 created an ambiguity about the nature of the relationship between Panterra and Pegah. Standard Contract section GC 3.1 contemplated that Trade Contractors would contract directly with the Owner:

The Construction Manager will, in accordance with the direction of the Owner, arrange for contracts to be entered into between the various Trade Contractors and the Owner.

The parties amended that section to authorize the Construction Manager to contract directly with Trades, with the approval of the Owner:

The Construction Manager will, in accordance with the direction of the Owner, arrange for contracts to be entered into between the various Trade Contractors and the Owner/or between Trade Contractor and Construction Manager with the approval of the Owner.

[24] The Master concluded that the additional language inserted by the parties into a standard form contract created ambiguities in light of other provisions of the Standard Contract, specifically section A-3(b) under which the Owner appointed the Construction Manager as “his agent to act in his name”.

[25] The parties advanced a number of specific grounds of appeal in respect of that finding, so let me deal with each in turn.

[26] First, the moving parties submitted that the amendment to section GC 3.1 of the Standard Contract created no ambiguity because the Master had erred by failing to consider section A-3(b) in its entirety which read: “The Owner appoints the Construction Manager his agent to act in his name in accordance with the terms of this Agreement…” Those concluding words, according to the moving parties, could be reconciled with the additions the parties had made to section GC 3.1, with the effect that those amending words did not alter the status of Pegah as a “construction manager”. The moving parties argued that it was open to Pegah, as a construction manager, to contract directly with Trade Contractors as agent for an undisclosed principal, Panterra, and therefore the amendment to section GC 3.1 did not alter that legal capacity of Pegah.

[27] While one cannot question the principles of law cited by the moving parties about the ability of an agent to contract for an undisclosed principal, the argument of the moving parties ignored three important points:

(i) Section GC 3.1 of the (unaltered) Standard Contract expressly contemplated that the Construction Manager would not contract with the Trades, only the Owner would. So, the reliance on principles of law about the ability of an agent to contract on behalf of an undisclosed principal runs up against the plain words of the Standard Contract – the Construction Manager was not to do so; only the Owner was. As a result, it is quite understandable that when the Master came to examine the amended language in section GC 3.1, she concluded that it created an ambiguity concerning the relationship between Panterra and Pegah;

(ii) The exercise of ascertaining whether a contract was made on behalf of an undisclosed principal necessarily requires an inquiry into the circumstances surrounding the making of the contract.[^6] So, the argument advanced by the moving parties concerning agents contracting for undisclosed principals contained within itself the implicit need to consider extrinsic evidence as part of the interpretation exercise; and,

(iii) Finally, the Statement of Agreed Facts submitted by the parties to the Master placed before her evidence about the contracting practices of the parties with sub-trades, specifically the number of contracts Panterra, as owner, had entered into as compared with the number entered into by Pegah. The Master considered that evidence: Reasons, paras. 42 to 44. I have difficulty understanding how a party can complain about extrinsic evidence considered by the trier of fact – as the Receiver did in paragraph 56 of its Factum - when it was privy to such an agreed statement of facts intended to be used by the trier of fact.[^7]

[28] Second, although the section of her Reasons in which the Master considered the issue of ambiguity focused on the amendment made to section GC 3.1, it is apparent from the remainder of her Reasons that the Master viewed two other amendments to the Standard Contract – sections A-16 and 1-5/GC-10 – as also creating ambiguities which called into question the nature of the relationship between Panterra and Pegah.[^8]

[29] Third, the moving parties made much of the Master’s characterization of certain headings in the Contract as “labels” to show that she had minimized the importance of the contractual language selected by the parties. With respect, that misreads the Master’s Reasons. The Master focused on the legal effect of the substance of the amending language chosen by the contracting parties, not its form:

26. The issue is whether the contract, as modified, transformed the structure from one of owner and construction manager to one of owner and general contractor. It is a matter of substance over form.

The Master was correct in so doing. Of course, the defined terms and headings chosen by the parties usually carry great weight in any interpretation exercise. Where, however, the parties have made a number of amendments to a standard form contract, the significance of the standard defined terms and headings may diminish because the substance of the amendments may undercut or modify the importance of the standard defined terms and headings. Put another way, the more the parties alter the language of a standard form contract, the greater the risk that the standard form defined terms or headings will play a less determinative role in the interpretation exercise.

[30] Fourth, as mentioned, the Statement of Agreed Facts placed before the Master evidence about how many contracts Panterra, as owner, had entered into with trades and how many such contracts Pegah had entered into. That was evidence about how the parties had performed the Contract. Evidence of post-contracting performance of contractual obligations may be admitted as an aid to the interpretation of a provision if the provision is ambiguous. The Master heard evidence from Pegah and sub-trades that Pegah had contracted directly with sub-trades, received invoices from the sub-trades and received from the sub-trades requests for payment.[^9] The evidence from the sub-trades was that they understood their contracts were with Pegah, not with the owner, Panterra.[^10] Ample evidence existed to support the Master’s finding that:

The evidence shows that all trade contracts for items included in the contract budget were entered into directly between Pegah and the trades. Not a single contract with a trade was entered into with Pegah as agent for the owner. The one contract where Panterra entered into a direct trade contract was for an item that was added later, outside the budget. (Reasons, para. 58)

[31] Fifth, the moving parties submitted that the Master failed to consider the effect of section GC 4.12 of the Contract under which Panterra and Pegah were to open a joint account from which trades would be paid. Although the Master did not refer specifically to that contractual provision in her Reasons that omission, in and of itself, is insufficient to find that she failed to take into account relevant evidence. Some allowance must be given to lower courts to exercise a “courage of selection” when it comes to what evidence finds its way into their reasons, otherwise reasons would become unduly long. More to the point, the Master decided that who bore the contractual liability for payment to the sub-trades was the important factor: Reasons, paras. 54 and 61. One can infer from her Reasons that the mechanics of how those payments were made bore less significance than the contractual liability for making such payments.

C. Second Ground of Opposition: The master erred in her consideration of the issue of which party assumed financial risk in interpreting the contract.

[32] The moving parties submitted that the Master erred in her findings about the effect of their addition to the Standard Contract of Article A-16 which placed on Pegah some financial responsibility for costs incurred in excess of the budget price. The Receiver contended that the Master re-wrote a contractual agreement between two sophisticated parties and failed to hold Pegah to its “autonomous bargain” with Panterra.

[33] I see no merit in this argument. The Master did not interfere with the bargain struck between the parties regarding the financial responsibility, inter se, for cost overruns. What the Master concerned herself with, most properly, was the legal implication for third parties of the addition made by Panterra and Pegah to a Standard Contract used by the construction industry. The Master was required to do so because the interpretation exercise was taking place within the larger context of the calculation of the statutory holdback required by the Construction Lien Act for the protection of sub-trades. Whether a contract resulted in one counter-party acting as owner’s agent or general contractor would affect statutory obligations vis-à-vis third parties to the contract.

[34] It was open to Panterra and Pegah to use, without alteration, the standard form industry contract which clearly defined their respective status in the larger context of the calculation of statutory holdbacks. They did not do so. Instead, the parties made several alterations and additions to the Standard Contract. Those alterations necessarily required the Master to consider their effect on the responsibility for holdback obligations. The Master did not “re-write” the parties’ contract: she identified the material alterations made by the parties to the Standard Contract, including the shift of some financial responsibility for cost overruns on to Pegah, and then considered the legal impact of those alterations on the “status” of the counter-parties within the larger CLA matrix.

D. Third Ground of Opposition: The master erred in considering external notions of industry standards to rewrite the Contract.

[35] The moving parties took issue with the Master making use of an article written by David Bristow, Q.C., about the differences between construction management contracts and general contractor contracts. Again, I see no merit in this argument.

[36] There is no doubt that the Master used that article, but she did so in her Reasons after considering the factors identified by this Court in Centrum Renovations & Repair Inc. v. Ditta[^11] in determining whether there existed a relationship of owner-construction manager or owner-general contractor. Although Centrum involved a situation where no written contract existed between the parties, it was open to the Master to turn to the analysis in that case for assistance in understanding the significance of the material additions and alterations which Panterra and Pegah had made to the Standard Contract.

[37] Moreover, the portions of Mr. Bristow’s article which the Master reproduced in her Reasons strike me as simply making common sense observations about the language of the Standard Contract – e.g. it is the owner, not the construction manager, who carries the financial risk of the project because that, in substance, is what the unaltered Standard Contract states. When taken in context, I see no reversible error in the Master having referred to that article.

E. Fourth Ground of Opposition: The master erred in allowing evidence of the plaintiff’s subjective view about the contractual arrangement to “creep into her reasoning”.

[38] In their Factum Romspen and 1746288 submitted that the Master had erred by allowing the subjective view of Pegah and other witnesses “to creep into her reasoning”. I do not accept that submission. In paragraph 34 of her Reasons the Master stated that she had “disregarded subjective evidence of intention of all witnesses. My findings as to the parties’ intentions are based on the written contract and their conduct as they performed the contract”. I see nothing in the balance of her Reasons to indicate that she departed from that finding.

V. Summary and Costs

[39] The Master was called upon to interpret, in the context of a dispute about how to calculate the amounts of statutory holdbacks in favour of third parties, a standard form construction industry contract to which Panterra and Pegah had made material additions and amendments. For the reasons set out above, I conclude that the Master made no reversible error in her contractual interpretation. I dismiss the two motions to oppose confirmation of her Interim Report and I confirm that Interim Report.

[40] I would encourage the parties to try to settle the costs of these motions. If they cannot, Pegah may serve and file with my office written cost submissions, together with a Bill of Costs, by July 9, 2014. The moving parties may serve and file with my office responding written cost submissions by July 18, 2014. The costs submissions shall not exceed three pages in length, excluding the Bill of Costs.

D. M. Brown J.

Date: June 30, 2014

[^1]: (1992), 8 C.L.R. (2d) 132 (Ont. Gen. Div.); see also, Celebrity Flooring Systems Ltd. v. One Shaftesbury Community (2006), 55 C.L.R. (3d) 184 (S.C.J.), para. 100.
[^2]: Kirsh and Alter: A Guide to Construction Liens in Ontario, Third Edition (LexisNexis Canada: Toronto, 2011), pp. 75-76.
[^3]: Plan Group v. Bell Canada (2008), 2009 ONCA 548, 96 O.R. (3d) 81 (C.A.) paras. 30 and 31.
[^4]: (2006), 65 C.L.R. (3d) 270 (Ont. S.C.J.)
[^5]: Ontario (Minister of Transportation) v. 407 ETR Concession Co., 2005 CarswellOnt 36 (S.C.J.), para. 40; Geoff Hall, Canadian Contractual Interpretation Law, Second Edition (Toronto: LexisNexis, 2012), §2.8.4
[^6]: Swift v. Eleven Eleven Architecture Inc., 2014 ABCA 49, paras. 41 and 42.
[^7]: In her Reasons Master Albert indicated that the argument on the issue of the admissibility of extrinsic evidence took place on May 14, 2013. Transcripts of the proceedings on that day were not placed in the record before me. As a result, I have drawn the inference that the Statement of Agreed Facts was placed in evidence before the Master without objection.
[^8]: For example, in paragraph 58 of her Reasons the Master stated: “Article 3.1 is ambiguous because it contemplates two structures simultaneously.”
[^9]: Factum of Pegah, para. 57.
[^10]: Honarparvar evidence, Transcript, p. 263; Pirocchi evidence, Transcript, pp. 4-11.
[^11]: Centrum, supra., para. 6.