2016 ONSC 689
COURT FILE NO.: CV-15-527463
DATE: 20160208
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PCL CONSTRUCTORS CANADA INC., Plaintiff
AND:
GLOBAL EVENTS MANAGEMENT GROUP INC., Defendant
BEFORE: Justice Glustein
COUNSEL: Krista Chaytor and Graham Brown, for the Plaintiff
Joel Verreault, for the Defendant
HEARD: January 27, 2016
REASONS FOR DECISION
Nature of motion and overview
[1] The plaintiff, PCL Constructors Canada Inc. (“PCL”), brings a motion for summary judgment against the defendant, Global Events Management Group Inc. (“Global” or “GEM”)[^1], for the return of PCL’s deposits of $70,210 USD (the “Deposits”) (in the equivalent Canadian funds under s. 121 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”)).
[2] PCL paid the Deposits to Global pursuant to an agreement between the parties set out in a “Booking Form” executed on April 8, 2013 (the “Contract”). Under the Contract, Global was to provide services described in more detail below, with PCL to pay the total amount of $140,420 USD.
[3] PCL paid the first deposit instalment of $35,105 USD on April 11, 2013 and paid the second deposit instalment of $35,105 USD on September 30, 2013. PCL has not paid the balance of $70,210 USD (the “Balance”) as it claims that Global has (i) breached the Contract and (ii) either anticipatorily repudiated or breached terms which PCL claims were amended by e-mail agreement on February 6, 2014 (the “Amended Terms”)[^2].
[4] The Balance was initially due on February 28, 2014 pursuant to the Contract, with the date for payment of the Balance changed in the Amended Terms to 15 days after the “Golf Day”[^3], which PCL submits was required to be at the golf course at the Augusta National Golf Club, home of “The Masters” golf tournament (“Augusta National”)[^4].
[5] Global refuses to return the Deposits. Consequently, PCL seeks the return of the Deposits.
[6] For the reasons I discuss below, I grant summary judgment.
Analysis
[7] At the hearing, Global submitted that there was a genuine issue requiring trial with respect to the following issues:
(i) whether Global was required under the Contract or the Amended Terms to provide the Golf Day at Augusta National in November 2013,
(ii) if Global was required under the Contract to provide the Golf Day at Augusta National, whether such contractual obligation was a fundamental term of the Contract or the Amended Terms,
(iii) whether Global breached the Contract by not scheduling the Golf Day at Augusta National in November 2013,
(iv) whether there was a contractual obligation on PCL to provide names and handicaps of golfers to play at Augusta National and, if so, whether PCL was in breach of that obligation,
(v) whether PCL was in breach of its obligation under the Contract to pay the Balance by February 28, 2014,
(vi) whether the February 2014 contractual amendments (previously defined as the “Amended Terms”) were valid,
(vii) if the Amended Terms were valid, whether the rescheduled Golf Day was to take place prior to the 2015 Masters, and,
(viii) whether Global’s failure to provide a Golf Day at Augusta National prior to the 2015 Masters constitutes an anticipatory repudiation or breach of the Amended Terms.
[8] I first review the applicable law for summary judgment and then apply those legal principles and the relevant evidence to each of the issues set out above.
i) The applicable law for summary judgment
[9] The parties agree that the applicable principles on summary judgment are set out in Hryniak v. Mauldin, 2014 SCC 7 (“Hryniak”) and Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (“Sweda Farms”), affirmed 2014 ONCA 878.
[10] In Hryniak, the applicable principles are as follows (Hryniak, at paras. 3, 47, 49, 50):
(i) A court shall grant summary judgment where there is no genuine issue requiring a trial; and
(ii) There is no genuine issue requiring a trial when the motions judge is able, on the motion, to reach a fair and just determination on the merits. This will be the case when (a) the judge is able to make the necessary findings of fact; (b) the judge is able to apply the law to the facts; and (c) the proceeding is a proportionate, more expeditious, and less expensive means to achieve a just result than going to trial.
[11] In Sweda Farms, Corbett J. reviewed the process by which the court considers whether summary judgment is appropriate. He stated (Sweda Farms, at para. 33):
The court on a motion for summary judgment should undertake the following analysis:
The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
If the court cannot grant judgment on the motion, the court should:
a. Decide those issues that can be decided in accordance with the principles described in 2) above;
b. Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;
c. In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.
[12] I now apply these principles to the issues raised by Global that I set out above, and consider the evidence relevant to those issues.
ii) Consideration of the issues raised by Global
[13] I consider each of the issues summarized at paragraph 7 above.
Issue 1: Whether Global was required to provide a Golf Day at Augusta National under the Contract or the Amended Terms
[14] PCL submitted that based on (i) the factual matrix surrounding the Contract and the Amended Terms and (ii) principles of contractual interpretation, Global was required to provide a Golf Day at Augusta National as a term of both the Contract and the Amended Terms.
[15] Global submitted that there was a genuine issue requiring trial that Global was only required to provide a Golf Day at any golf course in Augusta, Georgia. For the reasons that follow, I accept PCL’s position.
a) The relevant evidence related to the factual matrix surrounding the Contract
[16] The evidence of Ian Cantelon (“Cantelon”), PCL’s Regional Manager (Finance and Administration), was not subject to cross-examination and, as such, is not contested. Cantelon’s evidence demonstrates that from the outset of PCL’s discussions with Global, the Golf Day was to be at Augusta National.
[17] During March of 2013, Mr. Brad Nelson (“Nelson”), PCL’s former President and Chief Operating Officer, exchanged e-mails with Raj Sandhu (“Sandhu”), an employee of Global, about a package in which Global would arrange (i) accommodation, tickets, hospitality, and daily transportation for PCL employees and clients to attend at the 2014 Masters golf tournament (the “2014 Masters Trip”) and (ii) a Golf Day at Augusta National in November 2013 prior to the 2014 Masters Trip.
[18] Sandhu responded to Nelson’s inquiries about playing at Augusta National with an e-mail that “[the package] will include 3 golfers to play the course”. Nelson responded by e-mail that “if you can guarantee a Golf [sic] date at Augusta The [sic] first week of November (week of November 4th 2013) we will be in)” [Emphasis added].
[19] Cantelon’s uncontested evidence is that “PCL could have used one of several service providers for the Masters Trip … but opted to use GEM[^5] due to GEM’s guarantee that it could provide the Golf Day” at Augusta National in November 2013.
[20] When Nelson received a draft contract from Sandhu for the package which did not refer to the Golf Day, he wrote on April 2, 2013 to Sandhu and required that Global “Revise the “Package Details” to include three (3) golfers playing Augusta” [Emphasis in letter].
[21] Sandhu revised the draft contract and sent it back to Nelson “with changes made in bold” (as Sandhu stated in his e-mail) and, in particular, Sandhu included in the “package details” a line for “Golf Day (3 golfers) – November 2013” [Emphasis in original document]. This item remained in bold print in the signed Contract.
[22] Further, the evidence of Global’s Chief Executive Officer, Maher Jaber (“Jaber”), was that since Augusta National was a private club, Global could only secure a spot for three golfers since the member who would host the players would be part of the foursome. Jaber’s evidence was:
(i) “GEM will contact a few Augusta National Golf Club Members (“Member”) to see if anyone would be interested in hosting three (3) guests at the Golf Club”; and
(ii) if the guests are acceptable, “The Member will be the host, he will spend the entire day with the guests and he will be the fourth player in the golf foursome” [Emphasis added].
[23] There was no evidence that any other golf course in Augusta, Georgia would limit a foursome to only three non-member guests.
[24] Also, the evidence on cross-examination was that no special skills would be required to book a Golf Day at another golf course in Augusta, Georgia as anyone “could call some other course in Augusta and book … without any information”.
[25] Further, the uncontested evidence is that prior to the action Global never took the position that the Golf Day could be at another golf course in Augusta, Georgia.
[26] PCL and Global both referred to “the” course when discussing the 2014 Masters’ package. Nelson referred to “playing Augusta” or “playing at Augusta” in his communications with Sandhu. A limit of three non-member guests would apply only to the process referred to by Jaber in relation to Augusta National.
[27] The above factual matrix is consistent with an interpretation of the Contract, as set out below, that the “Golf Day (3 golfers) – November 2013” was to be played at Augusta National, not any random golf course in Augusta, Georgia, or any other golf course.
[28] A similar matrix existed when the Amended Terms were discussed after the Golf Day was not scheduled in November 2013. By e-mail, dated December 2, 2013, Cantelon asked Sandhu, “Have you made any progress for Brad and his guest to play Augusta?” [Emphasis added].
[29] When Cantelon responded to Sandhu with Nelson’s name and handicap on January 15, 2014, this was in response to Sandhu’s request for that information for golfers at Augusta National. Cantelon added that “Once we know the dates to select from, we can let you know who the other two golfers will be. We won’t know who the other two golfers will be until we know the dates to choose from”, again reflecting the intention that the Golf Day was at Augusta National.
b) The interpretation of “Golf Day (3 golfers) – November 2013” as a term in the Contract and the Amended Terms
[30] A contract must be interpreted by considering the whole of the agreement, in a manner that is reasonable. There is no genuine issue requiring a trial about the interpretation of the term “Golf Day (3 golfers) – November 2013” in the Contract. The reasonable interpretation is that Global was to provide a golf day for PCL for 3 golfers at Augusta National.
[31] The “Event” stated in the Contract is the “2014 Masters”. The “Package Details” set out in the Contract are:
(i) Four Day Entry Badge for 10 Guests – Thursday – Sunday
(ii) Hospitality for 10 Guests – Thursday-Sunday Professional Catering
(iii) Accommodation for 10 Guests in 2 Private Houses for 5 nights – Arrive April 9th, 2014 – Depart April 14th 2014 Daily Maid Service Included
(iv) Daily Transportation to and from Hospitality Facility/Housing
(v) Golf Day (3 golfers) – November 2013
[Emphasis in original].
[32] No reasonable interpretation of the above terms would permit Global to satisfy its obligations by providing a golf day at another golf course in Augusta, Georgia.
[33] None of the “Package Details” refer to Augusta National, so under Global’s interpretation, it would not have been required to provide entry badges, hospitality, accommodation, or transportation for The Masters golf tournament, an interpretation which would deprive the Contract of any commercial sense. PCL was not paying over $140,000 USD for access to a random golf tournament or a random golf day.
[34] All of the “package details” are in relation to the “Event” which is the 2014 Masters, so the Golf Day itself would reasonably refer to the same venue.
[35] Finally, under Global’s interpretation, there would be no reason to require Global to provide the Golf Day in Augusta, Georgia. Under Global’s interpretation, the lack of a reference to Augusta National would mean that Global could satisfy its package requirements by arranging a golf day at a local public golf course in Toronto. Again, such an interpretation defies commercial reasonableness.
[36] The Amended Terms did not change the interpretation. The parties agreed that (i) Global would transfer the package of services for the 2014 Masters Trip to the same services for a 2015 Masters Trip; and (ii) the Balance would be due 15 days after the Golf Day had been played (i.e., as the Golf Day term had already been agreed to by the parties in the Contract).
[37] For the above reasons, based on the factual matrix surrounding the negotiation of the Contract and the Amended Terms, the process at Augusta National (as set out by Global) that a member play with three guests in a foursome, and a review of the Contract and the Amended Terms, I find that the Golf Day in the Contract and Amended Terms was to be at Augusta National. There is no genuine issue requiring trial that the Golf Day requirement could be fulfilled by arranging a golf day at another golf course in Augusta, Georgia or any golf course other than Augusta National.
Issue 2: Whether the requirement for a Golf Day at Augusta National was a fundamental term of the Contract or the Amended Terms[^6]
[38] At the hearing, Global submitted that if there was a contractual requirement for the Golf Day at Augusta National under the Contract or the Amended Terms, there was a genuine issue requiring trial that (i) if the Contract or the Amended Terms required that the Golf Day would be at Augusta National, it was not a fundamental term; and (ii) if not a fundamental term, any breach of the term by Global was de minimis and would require PCL to engage and pay for the other services provided by Global, which related to the 2014 Masters Trip, i.e., providing travel packages for 10 PCL employees and clients to attend the April 2014 Masters golf tournament (and the 2015 Masters Trip as per the Amended Terms).
[39] I do not agree. The evidence was that the location of the Golf Day at Augusta National was a fundamental term of the Contract and the Amended Terms.
[40] As discussed above with respect to the factual matrix surrounding the Contract, it was of seminal importance that the Golf Day be played at Augusta National, the location of The Masters tournament. The evidence was not contested that PCL could have chosen one of several service providers for packages to attend The 2014 Masters, “but opted to use GEM due to GEM’s guarantee that it could provide the Golf Day” at Augusta National. Sandhu referred to the Golf Day to be played at “the” course, and Nelson insisted on a “guarantee” of a Golf Day “at Augusta”. Nelson refused to sign an agreement until the Golf Day requirement was added to the “Package Details” for the “2014 Masters” event. Sandhu made that change, noted in bold, on the Contract.
[41] On the evidence, there is no genuine issue requiring trial as to whether the location of the Golf Day at Augusta National was a fundamental term of the Contract or the Amended Terms. I rely on the assumption in Sweda Farms that the parties have placed before the court all evidence relevant to this issue and I find that it was a fundamental term.
Issue 3: Whether there is a genuine issue requiring trial that Global breached the Contract by failing to schedule the Golf Day at Augusta National in November 2013
[42] The uncontested evidence is that Global did not schedule the Golf Day at Augusta National in November 2013.
[43] The evidence is uncontested that PCL repeatedly followed up with Global as to Global’s efforts to schedule the Golf Day at Augusta National. In summary:
(i) In August 2013, PCL contacted Global about the issue. Sandhu told Cantelon that Augusta National was closed for the summer and that once Augusta National re-opened in October 2013, Global would finalize details of the Golf Day and provide available dates;
(ii) PCL was required to follow-up on October 15, 2013, as Global had not contacted PCL. Sandhu advised Cantelon that (a) Global continued to work on getting dates for the Golf Day; (b) PCL may only receive a one-week notice as to when the Golf Day would occur in November 2013; and (c) as a result, PCL should be ready to travel at a moment’s notice;
(iii) On October 30, 2013, PCL again contacted Global. Sandhu told Cantelon that Global was still working on a date to make the Golf Day happen. Sandhu asked Cantelon to provide Sandhu with the names of the proposed golfers and their handicaps; and,
(iv) On November 8, 2013, PCL again contacted Global about the Golf Day. Sandhu told Cantelon that he was still working on it.
[44] Michael Hurl (“Hurl”), Global’s Operations Manager, makes the bald assertion (without explanation) in his affidavit that “GEM made every effort to provide PCL with a Golf Day in November as promised”. I find that this evidence does not support a genuine issue requiring trial for the following reasons:
(i) While Hurl swore the evidence in his affidavit without any attribution of the source of his belief, he acknowledged in cross-examination that he had no direct knowledge of any efforts by Global to schedule the Golf Day at Augusta National. He stated that efforts were made by Jaber, but Jaber filed no evidence on this issue; and,
(ii) Global provided no answer to the undertaking to advise PCL as to who Jaber spoke to with respect to the Golf Day at Augusta National.
[45] Based on the above evidence, there is no genuine issue requiring trial. Global was in breach of the Contract by failing to schedule the Golf Day in November 2013.
Issue 4: Whether there was a contractual obligation on PCL to provide names and handicaps of golfers to play at Augusta National and, if so, whether PCL was in breach of that obligation
[46] Global submits that there is a genuine issue requiring trial that (i) PCL had a contractual obligation to provide names and handicaps of golfers to play at Augusta National; and (ii) PCL was in breach of that obligation by failing to do so. Consequently, Global submits that there is a genuine issue as to whether PCL was in breach of this purported obligation under the Contract, and that such a requirement was a condition precedent to Global obtaining dates.
[47] Consequently, Global submits there is a genuine issue requiring trial that it was not in breach of its obligation to provide the Golf Day at Augusta National in November 2013. I do not agree.
[48] Global’s evidence was that the first “step” in the process to schedule a golf day at Augusta National was for it to contact a member of the Augusta National Golf Club to gauge interest. There is no admissible evidence that Global did so (only indirect hearsay by Hurl with no response to the undertaking to obtain Jaber’s evidence). Consequently, Global’s failure to take the first required step cannot be excused by any purported failure of PCL to provide the names of golfers and their handicaps.
[49] The Contract does not provide for any requirement that PCL provide the names of proposed golfers or their handicaps, nor for any conditions precedent for the Golf Day that PCL’s guests be acceptable to a member of Augusta National. The Contract has an entire agreement clause which provides that:
This agreement constitutes the sole and exclusive Agreement between the parties and supersedes any and all prior oral written and all contemporaneous oral, Agreement, promises, or understandings among them, pertaining to the transactions contemplated in this agreement. The parties [sic] that no express or implied representations, warranties, or inducements have been made by any party to any other party except as set forth in this agreement.
[50] Consequently, Global cannot impose an obligation on PCL which is not in the Contract.
[51] Consistent with the interpretation of the Contract, there is no factual matrix supporting a requirement for approval of names or handicaps of proposed golfers. There is no evidence of such discussions in any of the e-mails and communications leading to the formation of the Contract.
[52] Further, Global never raised the issue in either of the two follow-up conversations relating to the Golf Day. Those conversations were initiated in response to PCL e-mails and calls in August 2013 and on October 15, 2013.
[53] It was only on October 30, 2013 that Sandhu asked for the names and handicaps of the proposed golfers. At that time, Sandhu did not state that it was a requirement for the Golf Day.
[54] Hurl asserts in his affidavit, without explanation, that (i) “The reason that there was no golf day in November 2013 was because of PCL’s actions and inaction which made it impossible for GEM to provide a Golf Day”; and (ii) “Each Augusta National Golf Course member that GEM contacted to be host to PCL wanted to know the names, personal information and golfing ability of the people who would be a guest”. However:
(i) Hurl had no direct knowledge of either allegation;
(ii) Hurl never told anyone at PCL about the importance of the handicap information or that the failure to provide it would impact Global’s ability to schedule the Golf Day at Augusta National; and
(iii) Global provided no answer to the undertaking to advise PCL as to who Jaber spoke to with respect to the Golf Day at Augusta National.
[55] Jaber acknowledged on his cross-examination that PCL was not in default of the Contract in February 2014 when the Amended Terms were renegotiated.
[56] There was also evidence that even if PCL had a contractual obligation to provide names and handicaps of the proposed golfers (which I find was not the case), PCL provided the name of Nelson and his handicap, while explicitly stating that PCL would forward the names of the other two golfers and their handicaps once Global proposed dates for the Golf Day. Global never took exception to that position by PCL.
[57] Based on the above evidence, a trial is not required to determine the issue of whether there is a contractual requirement that PCL provide the names and handicaps of proposed golfers, nor whether PCL was in breach of such a purported term in the Contract or the Amended Terms. There was no contractual requirement for PCL to do so, and in any event, PCL always reasonably complied with Global’s requests for the information. Global never took the position (even on cross-examination) that PCL was in breach of its obligations in February 2014 when the discussions leading to the Amended Terms took place.
Issue 5: Whether PCL was in breach of its obligation to pay the Balance
[58] Global submits that the Amended Terms were not an amendment to the Contract but, instead, an accommodation to PCL (in effect, a credit note) since PCL was about to default on the payment due of the Balance on February 28, 2014. Global submits that there is a genuine issue requiring trial that PCL breached its obligation to pay the Balance by not doing so by February 28, 2014.
[59] However, there is no genuine issue requiring trial on whether PCL was in breach of its obligation to pay the Balance. The evidence was uncontested that:
(i) Global never demanded payment of the Balance at any time, including under section 1 of the Contract (which required the Balance to be paid by February 28, 2014); and
(ii) Global never advised PCL that the Contract or Amended Terms had been breached by failure to pay the Balance.
[60] Further, the Amended Terms expressly extended PCL’s obligation to pay the Balance until 15 days after the Golf Day, which was to take place before the 2015 Masters. As I discuss below, those Amended Terms were valid and binding. Even if the Amended Terms were not binding, Global was already in breach of its obligation to provide the Golf Day at Augusta National, so PCL could not have been in breach of any obligation to pay the Balance by February 28, 2014.
Issue 6: Whether the February 2014 contractual amendments were valid
[61] Global submits that there is a genuine issue requiring trial that the Amended Terms were not valid because the Contract contained a provision that “The terms and conditions of this Agreement may not be modified without the express written consent of the Chief Executive Officer or General Counsel of Global Events Management Group Inc.”. I do not agree that this raises a genuine issue requiring trial.
[62] On the evidence before the court on this motion, there is no genuine issue requiring trial as to Hurl’s apparent authority under the indoor management rule to agree to any amendments. In particular, the evidence was uncontested that:
(i) Hurl made decisions on behalf of Global with respect to the Amended Terms;
(ii) Hurl specifically advised Cantelon that Hurl “would need to consult internally with other GEM senior management” before confirming that he could move the 2014 Masters Trip to 2015;
(iii) Hurl expressly advised Cantelon that “he had the necessary internal approval for the Masters Trip to be moved to 2015 and necessary internal approval for PCL not to have to pay any further sums until 15 days after the Golf Day occurs”;
(iv) On cross-examination, Jaber and Hurl acknowledged that they discussed the amendments;
(v) Hurl confirmed the Amended Terms by e-mail, dated February 4, 2014, to Cantelon, without reservation, that (a) “This is confirmation the 10 person package for The 2014 Masters from April 10th- April 13th 2014 will be transferred to The 2015 Masters April 9th-12th 2015”; and (b) “The 50% final payment due: February 28, 2014 will now be due fifteen days (15) after the Golf Day has been played”. Cantelon accepted the amendments by e-mail, dated February 6, 2014; and,
(vi) Global took steps after enactment of the Amended Terms in accordance with those terms.
[63] Consequently, regardless of the requirement for express written consent of Jaber, the doctrine of apparent authority applies. Hurl represented that he had the authority to bind Global to the amendments, and Global is bound by that representation (Molson Sports & Entertainment v. Quattro Communications Inc., 2007 CarswellOnt 1080 (S.C.J.), at para. 24).
[64] Further, even if the doctrine of apparent authority did not apply, Hurl made a negligent misrepresentation that he had authority when he knew or ought to have known that it was not accurate, and PCL reasonably relied on it to its detriment (Queen v. Cognos Inc., 1993 CanLII 146 (SCC), [1993] 1 S.C.R. 87, at para. 33). Consequently, Global would remain liable for any damages PCL incurred in relying on the amendments, i.e., to the extent Global now argues PCL was in breach by not paying the Balance on February 28, 2014[^7], PCL suffered damages because Hurl, on behalf of Global, represented that PCL was not required to pay the Balance until 15 days after the Golf Day to be rescheduled prior to the 2015 Masters.
[65] Finally, even if the Amended Terms were not valid, Global would still be in breach of the Contract and required to return the Deposits.
[66] Consequently, there is no genuine issue for trial with respect to the validity of the Amended Terms.
Issue 7: Whether the Golf Day was to occur prior to the 2015 Masters under the Amended Terms
[67] Under the Amended Terms, the Golf Day was to take place prior to the 2015 Masters. I do not accept Global’s submission that this is a genuine issue requiring trial.
[68] The factual matrix surrounding the Amended Terms and the requirement that PCL pay the Balance no later than 15 days after the Golf Day demonstrate that the Golf Day under the Amended Terms was to take place prior to the 2015 Masters.
[69] I first address the factual matrix of discussions leading to the Amended Terms.
[70] On December 2, 2013, PCL again contacted Global. Cantelon expressed his disappointment that the November 2013 Golf Day had passed and disappointment in Global’s efforts to make the Golf Day happen. Sandhu assured Cantelon that the Golf Day would still happen and that Global would provide three new dates for PCL. Those dates would have been before the 2014 Masters Trip.
[71] Cantelon followed up by e-mail on December 18, 2013, requesting an update. He received no response.
[72] On January 6, 2014, Cantelon requested an update. Sandhu told Cantelon that by the end of the following week (i.e., by January 17, 2014), Global would provide three dates for Nelson to choose on which PCL could attend the Golf Day.
[73] On January 15, 2014, Cantelon followed up again with PCL. Sandhu told Cantelon that he was still organizing the Golf Day and requested the handicaps of the golfers who would participate.
[74] On January 17, 2014, Cantelon e-mailed Sandhu asking for dates. Sandhu advised Cantelon that he was still working on getting dates but that he needed approvals for Global’s decisions, and that Hurl was working on planning the event. Sandhu advised Cantelon to contact Hurl on a going-forward basis.
[75] Cantelon followed up with Hurl several times in late January, but Hurl advised Cantelon that he was busy with Super Bowl event-planning.
[76] Cantelon spoke with Hurl on February 3, 2014. Hurl stated that Global had “dropped the ball” on organizing the Golf Day. Hurl acknowledged that the Golf Day was to occur before the Masters Trip. Hurl offered to move the 2014 Masters Trip to 2015 so that Global would have more time to provide the Golf Day.
[77] Consequently, the factual matrix reflects Global’s acknowledgement that the 2014 Masters Trip would be moved to 2015 so that Global could arrange the Golf Day before that trip.
[78] Further, the amendment to the contractual requirement to pay the Balance by February 28, 2014 was only to a date 15 days after the Golf Day. If the Golf Day could be planned at any time after the 2015 Masters Trip, then Global would not have been able to collect the Balance prior to providing the 2015 Masters Trip and incurring the attendant expenses for tickets, hospitality, accommodation, and transportation. Such an interpretation would be (i) commercially illogical for Global, and (ii) inconsistent with the requirement in the Contract that PCL pay the Balance after the Golf Day scheduled for November 2013, before Global incurred its significant expenses for the same services for the 2014 Masters Trip it was to arrange.
[79] There is no genuine issue requiring trial on this issue. The factual matrix and principles of contractual interpretation establish that Global’s obligation was to provide the Golf Day before the 2015 Masters Trip.
Issue 8: Whether Global’s inability to provide a Golf Day at Augusta National prior to the 2015 Masters constitutes an anticipatory repudiation or breach of the Amended Terms
[80] The evidence is uncontested that Global advised PCL that it would not be able to provide the Golf Day at Augusta National prior to the 2015 Masters. Consequently, Global’s conduct was either an anticipatory repudiation or breach of the Amended Terms. I reject Global’s submission that this is a genuine issue requiring trial.
[81] After the Amended Terms, Cantelon again followed up repeatedly between March and June 2014 to see if Global had done any work to find available dates for the Golf Day. Each time, Hurl responded and advised Cantelon that Global was still working on providing the Golf Day.
[82] On August 8, 2014, Cantelon sent an e-mail to Hurl noting that 16 months had passed since the original contract and Global had still not secured available dates for the Golf Day. Hurl responded by voicemail that Global continued to work on finding available dates.
[83] Cantelon followed up again by e-mail and conversations in October, 2014.
[84] In January 2015, Cantelon again wrote to Hurl about the Golf Day. Cantelon requested an in-person meeting. Hurl advised that he was busy with “Super Bowl operations” and Hurl and Cantelon exchanged e-mails to schedule a call on January 19, 2015.
[85] On January 19, 2015, Cantelon and Ms. Sherry Filardi (“Filardi”), the Events Coordinator of PCL, spoke with Hurl, who acknowledged that Global was again “dropping the ball” on Golf Day. While Hurl maintained that providing the Golf Day was still possible, he proposed three additional options:
(i) The parties would proceed with the 2015 Masters Trip in April 2015 as scheduled and Global would continue to work on finding available dates for the Golf Day after the 2015 Masters Trip;
(ii) The parties would agree to suspend the 2015 Masters Trip until 2016 and Global would continue to work on finding dates for the Golf Day before the Masters Trip in 2016; and,
(iii) The Masters Trip would be transferred to the Canadian Open, and a golf day occur at Glen Abbey Golf Course instead of Augusta National.
[86] The parties had some further discussions including whether the whole package could be transferred to the Canadian Open if PCL left the Deposits with Global but did not pay the Balance. Global was not prepared to accept that proposal, and responded that the Deposits alone could only pay for attendance at the Canadian Open without a golf day.
[87] On January 27, 2015, Cantelon told Hurl that (i) PCL was not interested in any of the proposed alternatives; and (ii) PCL insisted on available dates for the Golf Day by February 8, 2015 failing which PCL expected a full refund of the Deposits. Hurl told Cantelon he would need to “review that internally” and would respond later in the day. Hurl did not respond as promised.
[88] On February 12, 2015, Cantelon telephoned Hurl and advised that PCL required a return of the Deposits. Hurl again did not respond until Cantelon followed up on February 20, 2015. At that time, Global advised that it would not return the Deposits and would only provide one of the three alternatives it had offered on January 19, 2015.
[89] The above evidence is uncontested.
[90] Consequently, there is no genuine issue requiring trial with respect to anticipatory repudiation. Global’s words and conduct show an intention not to be bound by the Amended Terms (Remedy Drug Store Inc. v. Farnham, 2015 ONCA 576 (“Remedy Drug Store”), at para. 42).
[91] A reasonable person would conclude that the breaching party (Global) no longer intended to be bound by the Amended Terms (Remedy Drug Store, at paras. 45-46).
[92] Finally, the surrounding circumstances (the nature of the contract, the attendant circumstances, and the motives which prompted the breach) demonstrate that Global’s intention was to repudiate the Amended Terms (Remedy Drug Store, at para. 46).
[93] Based on the law as set out in Remedy Drug Store and the uncontested evidence set out above, Global anticipatorily repudiated the Amended Terms when it advised PCL on February 20, 2015 that it would not provide the services bargained for with PCL. In effect, Global advised PCL that Global would breach the Amended Terms or not be bound by those terms.
[94] Considered another way, Global was in breach of the Amended Terms when it failed to deliver the Golf Day at Augusta National prior to the 2015 Masters Trip.
[95] If the innocent party elects to disaffirm a contract on the basis of an anticipatory repudiation, the innocent party may commence an action for breach (John D. McCamus, “The Law of Contracts 2nd Ed.” Irwin Law, 2012 (“McCamus”), at 689).
[96] Similarly, Epstein J.A. stated, in Remedy Drug Store, that “anticipatory repudiation is essentially the same as repudiation simpliciter – the only difference is timing” (Remedy Drug Store, at para. 42).
[97] When confronted by an anticipatory repudiation, the innocent party has a right to elect to terminate the agreement or accept the repudiation as discharging the agreement. The effect of exercising the right to disaffirm the agreement relieves the party of any further obligation to perform the agreement and enables the innocent party to immediately pursue remedies available for the breach of contract constituted by the anticipatory repudiation (McCamus, at 686).
[98] By demanding a refund of the Deposits on February 12, 2015 (after Global advised that it no longer intended to be bound by the Amended Terms), PCL accepted the repudiation and disaffirmed the Amended Terms.
[99] As Global is considered to have indicated an anticipated repudiation of the Amended Terms, PCL is entitled to the value of the benefits it conferred on Global (the defaulting party) (McCamus, at 683-84).
[100] Consequently, there is no genuine issue requiring trial with respect to Global’s anticipatory breach or breach of the Amended Terms.
iii) Conclusion on summary judgment issues raised by Global
[101] For the above reasons, I find that none of the proposed issues raised by Global raises a genuine question requiring trial. Summary judgment is appropriate under Hryniak and Sweda Farms since (i) I am able to make the necessary findings of fact; (ii) I am able to apply the law to the facts; and (iii) summary judgment is a proportionate, more expeditious, and less expensive means to achieve a just result than going to trial, all based on the assumption that the parties have placed before the court, in some form, all of the evidence that will be available at trial.
[102] Under s. 121 of the CJA, payment of the Deposits must be made in an amount of Canadian currency sufficient to purchase the US Dollar amount of the Deposits at a bank in Ontario listed in Schedule 1 to the Bank Act at the close of business on the first day on which the bank quotes a Canadian dollar rate for purchase of the foreign currency before the day payment of the obligation is received by PCL.
iv) A note on whether the contract is void ab initio under the [Travel Industry Act, 2002, S.O. 2002, c. 30, Sched. D](https://www.canlii.org/en/on/laws/stat/so-2002-c-30-sch-d/latest/so-2002-c-30-sch-d.html) (“TIA”)
[103] PCL raised this argument in its factum. PCL provided authority that a commercial entreprise could receive compensation under the TIA. Consequently, PCL submitted that s. 4 of the TIA applied and the Contract was void ab initio.
[104] Global responded by providing an authority that while PCL could receive compensation under the TIA, it is not a “consumer” under the TIA and, as such, the Contract is not void ab initio.
[105] Given my findings above that there is no genuine issue requiring trial and PCL is entitled to the return of the Deposits, I do not address the issue under the TIA.
Order and costs
[106] For the above reasons, I grant the motion for summary judgment and order Global to return the Deposits of $70,210 USD. Under s. 121 of the CJA, I order that payment of the Deposits be made in an amount of Canadian currency sufficient to purchase the US Dollar amount of the Deposits at a bank in Ontario listed in Schedule 1 to the Bank Act at the close of business on the first day on which the bank quotes a Canadian dollar rate for purchase of the foreign currency before the day payment of the obligation is received by PCL.
[107] Given the importance of the motion, the multiple affidavits filed by PCL, the thorough factum and brief of authorities filed, and PCL’s important cross-examinations of Jaber and Hurl, I fix costs on a partial indemnity scale at $20,000 (inclusive of taxes and disbursements), payable by Global to PCL within 30 days of this order.
GLUSTEIN J.
Date: 20160208
[^1]: In some of the affidavit material, the defendant is referred to as GEM. While I use “Global” to describe the defendant in these Reasons for Decision, I have maintained references to GEM when that term is used in the motion material. [^2]: Global submits that there is a genuine issue requiring trial that the Amended Terms are not a contractual obligation, a submission I reject as I set out below. [^3]: In these reasons, I use the defined term “Golf Day” as an abbreviation of the stated requirement in the Contract for Global to provide a “Golf Day (3 golfers) – November 2013” and as later amended by the Amended Terms. As I discuss below, I find that the Golf Day was to be played at Augusta National and to take place pursuant to the Contract before the 2014 Masters Trip (or before the 2015 Masters Trip under the Amended Terms). [^4]: I agree with PCL’s submission for the reasons I set out below. [^5]: See footnote 1 – GEM is used in the affidavit material as an abbreviation for the defendant, Global Events Management Group, Inc. [^6]: The issue of whether the requirement for the Golf Day at Augusta National under the Amended Terms is a fundamental obligation arises if the Amended Terms are a contractual obligation of Global. Global submits that there is a genuine issue requiring trial that the Amended Terms are not a contractual obligation, a submission I reject as I set out below. [^7]: (a position I do not accept as I have found Global was in breach and the Contract was amended)