COURT FILE NO.: CV-17-569880 DATE: 20181121 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N :
JONATHAN PERSAUD AND FLEETFIND TECHNOLOGIES INC. Plaintiffs
– and –
SOLAR POWER NETWORKS INC. Defendant
Counsel: Jeffrey Larry and Alysha Shore for the Plaintiffs Nathaniel Read-Ellis for the Defendant
HEARD: July 18, 2018
Favreau J.
Introduction
[1] The plaintiffs bring a motion for summary judgment in relation to unpaid commissions.
[2] There is no dispute between the parties that the plaintiffs were entitled to the payment of commissions. However, the issue is the scope of those commissions, and in particular whether the agreement between the parties was meant to memorialize the payment of commissions already paid or whether it was meant to provide for the future payment of commissions.
Factual Background
Parties
[3] The plaintiff Jonathan Persaud is the principal of the plaintiff Fleetfind Technologies Inc. ("Fleetwood"). Fleetfind is in the business of providing consulting services to technology companies.
[4] The defendant, Solar Power Network Inc. ("SPN") is a renewable energy company that specializes in developing and installing solar panels on the rooftops of commercial, institutional and industrial buildings. SPN operates in Ontario and Japan. Peter Goodman is the principal of SPN.
[5] Much of SPN’s business in Ontario comes from Feed-In-Tariff contracts ("FIT contracts").
[6] FIT contracts were developed by the Ontario government to allow alternative energy companies to connect to Ontario's power grid and to sell the energy generated at specified rates. FIT contracts provide for the sale of energy at fixed, above-market rates over a 20 year term. There have been five different phases of the FIT program in Ontario, with the fixed energy rates going down in each phase. As of recently, no new FIT contracts are being awarded.
[7] As part of its business model, SPN entered into leases for rooftop solar projects. The leases were used to apply for FIT contracts. Each FIT contract was awarded for a specific site and cannot be transferred to a different site.
Agreements between the parties
[8] Mr. Persaud and Mr. Goodman knew each other from a previous working relationship with Telus Mobility. In 2010, Mr. Persaud approached Mr. Goodman to seek out business opportunities. Mr. Goodman informed Mr. Persaud that he had just acquired SPN. Mr. Persaud and Mr. Goodman then explored ways in which Mr. Persaud, through Fleetfind, could perform services for SPN.
[9] As of 2011, Mr. Persaud started working at SPN as a Vice-President of Sales. In that capacity, Mr. Persaud's role was to seek out sites for solar power projects on behalf of SPN. Specifically, Mr. Persaud found property owners willing to let SPN build solar energy projects on their rooftops, and negotiated leases with the owners. Once a lease was negotiated, SPN was in a position to apply for a FIT contract, after which the solar energy projects could be built and then connected to Ontario’s power grid.
[10] Through the FIT contracts, each lease was a potential source of revenue for SPN. However, SPN only receives revenue from the sites if SPN is able to obtain a FIT contract for the site, the project is built, and the project is connected to the power grid.
[11] Initially, the compensation to be received by Mr. Persaud, through Fleetfind, for his services was not reduced to writing. Mr. Persaud's evidence on the motion is that, in the beginning, his base compensation was $11,000 per month for the first three months, and that his compensation then increased to $15,000 per month. Mr. Persaud's evidence is also that he was to be entitled to a bonus and that he was to participate in SPN's stock option plan.
[12] In the context of their working relationship and in these proceedings, the parties described the value of each lease by reference to the total number of megawatts (“MW”) the project at the site was expected to generate over its lifetime. The parties agree that, prior to Mr. Persaud’s work for SPN, the company had obtained leases for approximately 10 MW of power, and that, by the end of September 2011, after Mr. Persaud started working for the company, SPN obtained leases for an additional 50 MW, for a total of 60 MW.
[13] Mr. Persaud claims that, in late 2011, Mr. Goodman expressed great satisfaction with his work, and advised Mr. Persaud that he wanted to reward him with a commission of $2,000,000. Mr. Persaud's evidence is that this amount was meant to make up for the fact that SPN had not yet paid a bonus or given stock options to the plaintiffs. The $2,000,000 was meant to represent 3.3 cents per watt for the 60 MW of leases SPN had obtained up to that point. Mr. Persaud claims that he reached an agreement with Mr. Goodman for payment of the commission on these terms in late 2011. However, at that time, the parties did not reduce their agreement to writing.
[14] In January 2012, Mr. Persaud's role at SPN changed. At that point, SPN wanted to focus on building the projects for which it had acquired contracts. Mr. Persaud took on the role of Vice- President of Engineering for the purpose of assisting with this aspect of SPN's work. Again, Mr. Persaud's compensation changed. It was agreed that he would receive $15,000 per month plus a bonus and stock options.
[15] By late June of 2012, the parties finally reduced their agreements to writing.
[16] On June 30, 2012, the parties signed a contract titled "Amended and Restated Contractor Agreement" ("Commission Agreement"). This agreement provided for the payment of commissions to Fleetfind. The terms and meaning of this agreement are the subject of the dispute between the parties on the motion, and are reviewed in detail in the Analysis section below.
[17] At the same time, the parties signed a contract titled "Contractor Agreement", under which Mr. Persaud was to serve as SPN's Vice President of Engineering through Fleetfind. The contract stated that Mr. Persaud was to receive $15,000 per month, a bonus targeted at $180,000 per year and participation in stock options with an expected value of $2,000,000 per year.
[18] Between 2012 and 2015, Mr. Persaud continued to work for SPN in a number of different capacities. By 2014, he was the Chief Operating Officer of SPN Japan, which provided him with a salary of $240,000 per year and other compensation.
[19] In 2015, SPN started missing payments owed to the plaintiffs. Mr. Persaud and Fleetfind terminated its relationship with SPN in August 2016.
Claim by the plaintiffs and procedural background
[20] In 2017, the plaintiffs commenced this action against SPN, seeking damages for unpaid commissions, unpaid salary and undelivered stock options.
[21] On June 29, 2017, the parties entered into a partial judgment on consent in relation to the unpaid salary. SPN agreed to pay the plaintiffs a total of $464,759.14, with 50% of that amount to be paid by July 31, 2017 and the balance to be paid by September 30, 2017. At the time of the argument of the motion for summary judgment, SPN had only paid the plaintiffs a total of $73,000.
[22] On this motion, the plaintiffs only seek summary judgment in relation to the unpaid commissions. The plaintiffs claim $1,639,675.20, on the basis that the commissions were to be $2,000,000, and that SPN has already paid $360.324.79 in commissions to date.
Positions of the Parties
[23] The plaintiffs assert that the Commission Agreement was meant to compensate them for the work performed by Mr. Persaud in obtaining the 50 MW of leases in his capacity as Vice President of Sales. They claim that it was always intended that Mr. Persaud was to receive $2,000,000 in commissions, and that the Commission Agreement simply represents the mechanism for making those payments. Under the Commission Agreement, the plaintiffs were to be paid 3.3 cents per watt for each site connected to the power grid. These amounts were to be paid on any FIT contract connected to the power grid, regardless of whether Mr. Persaud was involved in obtaining the contract, until Mr. Persaud received a total of $2,000,000. The plaintiffs claim that the language of the agreement and the communications between the parties around the time the agreement was made support this position.
[24] The defendant argues that I should dismiss the motion because the plaintiffs seek partial summary judgment, and that this is not an appropriate case for partial summary judgment. Alternatively, the defendant takes the position that the plaintiffs' entitlement to commissions was meant to end when Mr. Persaud stopped working as Vice President of Sales, and that, at the very least, the commission agreement was never meant to give the plaintiffs commissions in relation to leases with which Mr. Persaud had no involvement, entered into after SPN reached 60 MW of leases and Mr. Persaud started working as Vice President of Engineering.
Test on a Motion for Summary Judgment
[25] Under Rule 20.04(2) of the Rules of Civil Procedure, summary judgment is to be granted if the Court is satisfied that there is no genuine issue requiring a trial.
[26] As set out in Hryniak v. Mauldin, 2014 SCC 7, at para. 49:
[T]here will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. This is the case when the process: "(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result."
[27] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based on the evidence before him or her without using the fact-finding powers in Rule 20.04(2.1). If there appears to be a genuine issue requiring a trial, Rule 20.04(2.1) permits the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the "interest of justice" for these powers to be exercised only at trial: Hryniak, at para. 66. The motion judge is also permitted to use the expanded powers under Rule 20.04(2.2) to direct a procedure such as a mini-trial, rather than a full trial.
[28] The responding party may not rely on the prospect of additional evidence that may be tendered at trial; the respondent must put his or her best foot forward on the motion for summary judgment: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (Ont. S.C.J.), at para. 26, aff'd 2014 ONCA 878 (Ont. C.A.), leave to appeal to SCC refused, [2015] S.C.C.A. No. 97 (S.C.C.).
[29] As held by Perell J. in Levac v. James, 2016 ONSC 7727, at para. 132:
Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., [1998] O.J. No. 3240 (Ont. C.A.); Bluestone v. Enroute Restaurants Inc., (1994), 18 O.R. (3d) 481 (Ont. C.A.); Papaschase Indian Band No. 136 v. Canada (Attorney General), 2008 SCC 14, [2008] 1 S.C.R. 372 (S.C.C.) at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) (3d) 225 (Ont. Gen. Div.), aff'd [1007] O.J. No. 3754 (Ont. C.A.).
[30] Post-Hryniak, the Court of Appeal for Ontario has cautioned against granting partial summary judgment except where there is "no risk of duplicative or inconsistent findings at trial and that granting summary judgment [is] advisable in the context of the litigation as a whole": Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922 at para. 4. In Hamilton (City) v. Their + Curran Architects Inc., 2015 ONCA 64, at para. 22, the Court of Appeal held that "a summary judgment motion judge commits an error in principle when he or she fails to assess the advisability of the summary judgment process in the context of the litigation as a whole". More recently, in Butera v. Chown, Cairns LLP, 2017 ONCA 783, at paras. 29 to 34, the Court of Appeal emphasized that motions for partial summary judgment can cause undue delay and expense, holding that a "motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner".
Issues
[31] The issues to be decided in this case are as follows:
a. Is this a motion for partial summary judgment and, if so, is this an appropriate case for partial summary judgment? b. What is the scope of the plaintiffs' entitlement to commissions? c. What are the plaintiffs' damages?
Partial Summary Judgment
[32] As reviewed above, the Court of Appeal has cautioned against motions for partial summary judgment. Such motions are only appropriate where there is no risk of inconsistent findings at trial and where it is cost effective to decide a specific aspect of a claim by way of summary judgment.
[33] In its factum and at the beginning of the hearing of the motion, SPN argued that the motion should be dismissed on the basis that the plaintiffs only seek a determination of the issue of commissions, which leaves the issue of stock options still to be decided at trial.
[34] In response, the plaintiffs have indicated that they are abandoning the claim for stock options.
[35] Under the circumstances, the motion is not in fact a motion for partial summary judgment. The parties have previously resolved the issue of Mr. Persaud's unpaid salary and, therefore, with the abandonment of the issue of stock options, the claim for unpaid commissions is the only issue left to be decided. In other words, granting the plaintiffs’ motion would resolve all outstanding issue in this action.
Scope of Commissions
[36] The determination of the motion depends on the interpretation of the Commission Agreement.
[37] As held by the Supreme Court of Canada in Sattva Capital Corp. v. Creston Molly Corp., 2014 SCC 53, at para. 47, the overriding concern when interpreting a contract is to determine the intention of the parties. In doing so, the Court's task is to "read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of the formation of the contract".
[38] In Weyerhaeuser Company Limited v. Ontario (Attorney General), 2017 ONCA 1007, at para. 65, the Court of Appeal for Ontario set out a number guiding principles that flow from Sattva:
65 The general principles guiding adjudicators about "how" to interpret a commercial contract were summarized in Sattva, at para. 47, and by this court in two 2007 decisions - Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, 85 O.R. (3d) 254, at para. 24, and Dumbrell v. The Regional Group of Companies Inc., 2007 ONCA 59, 85 O.R. (3d) 616, at paras. 52-56. When interpreting a contract, an adjudicator should:
(i) determine the intention of the parties in accordance with the language they have used in the written document, based upon the "cardinal presumption" that they have intended what they have said;
(ii) read the text of the written agreement as a whole, giving the words used their ordinary and grammatical meaning, in a manner that gives meaning to all of its terms and avoids an interpretation that would render one or more of its terms ineffective;
(iii) read the contract in the context of the surrounding circumstances known to the parties at the time of the formation of the contract. The surrounding circumstances, or factual matrix, include facts that were known or reasonably capable of being known by the parties when they entered into the written agreement, such as facts concerning the genesis of the agreement, its purpose, and the commercial context in which the agreement was made. However, the factual matrix cannot include evidence about the subjective intention of the parties; and
(iv) read the text in a fashion that accords with sound commercial principles and good business sense, avoiding a commercially absurd result, objectively assessed.
[39] In Sattva, at paras. 57 and 58, the Supreme Court explained the proper use and limits of evidence surrounding the circumstances of the formation of the contract:
57 While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement (Hayes Forest Services, at para. 14; and Hall, at p. 30). The goal of examining such evidence is to deepen a decision-maker's understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997), 101 B.C.A.C. 62).
58 The nature of the evidence that can be relied upon under the rubric of "surrounding circumstances" will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract (King, at paras. 66 and 70), that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann, "absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man" (Investors Compensation Scheme, at p. 114). Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact.
[40] As indicated above, the Commission Agreement was signed by the parties on June 30, 2012.
[41] The agreement opens with the following statement:
The AMENDED AND RESTATED CONTRACTOR AGREEMENT is effective from and after February 1, 2011.
[42] The agreement sets out the base fees as $11,000 per month from February 1, 2011 to April 31, 2012, and $15,000 per month from May 1, 2011 to April 31, 2012.
[43] The commission to be paid is described as follows:
$0.03333333/w (AC) to be paid to the Contractor for the first 60MW of sites up to a maximum of $2.0 million. Payment for a site is due to the Contractor once reaches COD and (x) SPN starts receiving payments from the relevant LDC with respect to such site or (y) the sale of such site by SPN to a third party purchaser is completed. Current sites (i.e. with FIT contracts) and payment amounts that will be due per site are listed in Schedule "D", which will be updated as addition sites obtain FIT contracts and until payment of the full $2.0 is made to the Contractor.
[44] The acronym “COD” refers to the site being connected to the power grid. The Acronym “LDC” refers to the local distribution carrier, which is the entity responsible for paying SPN for the power generated by a project.
[45] The term of the agreement is for 12 months from February 1, 2011 to January 31, 2012 "unless otherwise agreed by the parties - See Addendum below".
[46] The Addendum referred to above provides as follows:
Notwithstanding any other provision hereof, compensation arrangements set out in item 6) above and as set out in Schedule "D" from time to time under this Contractor Agreement survive any other termination hereunder and remain in full force and effect until payment in full is made by SPN to the Contractor in accordance with the terms of this Contactor Agreement.
[47] The parties take dramatically different positions with respect to the plaintiffs' commission entitlement under the Commission Agreement. The plaintiffs say that they are entitled to a commission on all sites that end up being connected to the power grid or sold to third parties regardless of when the lease was originally obtained and regardless of whether Mr. Persaud had any involvement in obtaining the lease until they are paid a full $2,000,000. In contrast, the defendant argues that it is only obligated to pay a commission on sites where the lease was obtained by September 30, 2011 and where commercial operation was achieved prior to January 21, 2012. Alternatively, the defendant argues that, at the very least, the plaintiffs were never to receive any commissions after the relationship between the parties was terminated in 2016.
[48] In my view, both of the interpretations advocated by the parties fail to look at the contract as a whole, giving the words their ordinary meaning, and with appropriate regard to the surrounding circumstances.
[49] The defendant argues that the Commission Agreement was essentially meant to memorialize the prior relationship between the parties, and that by the time it was executed, this relationship was superseded by Mr. Persaud's role as Vice President of Engineering as set out in the Contractor Agreement. At most, by the time the agreement was signed on June 30, 2012, there may have been some amounts still owing to the plaintiffs flowing from the first 60 MW of leases SPN had entered into that were connected to the grid or sold to third parties by January 31, 2012. But if those first 60 MW of leases had not yet started generating any money by January 31, 2012, no commissions were to be paid to the plaintiffs.
[50] In my view, the defendant's proposed interpretation focuses on isolated aspects of the agreement without proper regard to the agreement as a whole, in particular the Addendum, and without proper regard to the surrounding circumstances.
[51] The defendant focuses on the fact that the term of the agreement is described as ending on January 31, 2012, in support of its argument that the plaintiffs were not to receive commissions for sites that had not yet been connected to the grid or sold by that time. However, this position ignores the fact that the Addendum explicitly provides that the commission provision of the agreement is to survive any termination of the agreement until the amounts owed are paid in full. In addition, the commission provision does not set any time limits on when sites are to be connected or transferred to third parties for the commission to be payable. Rather, the only apparent time limit is the reference to the “first 60MW”. After that, the provision states that “[p]ayment of a site is due to the Contractor once reaches COD and (x) SPN starts receiving payments from the relevant LCD with respect to such site or (y) the sale of such site by SPN to a third party purchaser is completed”. Therefore, while the term of Mr. Persaud’s role as Vice President of Sales came to an end on January 31, 2012, it is clear from the provision dealing with his commission and the Addendum that the payment of commissions is to continue until all amounts due have been paid.
[52] Accordingly, the plain language of the contract belies the defendant's position that its obligations to pay commissions were at an end once Mr. Persaud started working as the Vice-President of Engineering.
[53] In addition to the plain language in this section, in my view, the defendant is not assisted by the fact that the Commission Agreement was signed on the same day as the Contractor Agreement. There must have been some utility in signing both agreements on June 30, 2012. Looking at both agreements together, it becomes apparent that the Commission Agreement is meant to compensate Mr. Persaud and his company for services provided in the past and the Contractor Agreement is meant to compensate him for ongoing and future services. This interpretation is supported by the fact that the defendant did make payments to Mr. Persaud after June 30, 2012, under the Commission Agreement. While the defendant argues that these were gratuitous payments, the much more plausible explanation for such payments is that they were consistent with the parties' intentions as set out in the Commission Agreement that the defendant's obligations to pay commissions would survive the termination of the services to be provided by Mr. Persaud under the Commission Agreement.
[54] Looking at the surrounding circumstances reinforces this interpretation. The value of Mr. Persaud's services under the Commission Agreement would not come to fruition until a FIT contract was obtained and the solar energy project was either connected to the grid or sold to a third party. Accordingly, it makes sense that the payment of commissions was deferred to a point in time when the projects actually started to generate money. Furthermore, given the time lag between the signing of the leases and when sites would start generating money, it makes sense that the payment of commissions would not occur until sometime after Mr. Persaud's work as Vice- President of Sales was completed. Under the circumstances, there is no rational reason for the payment of commissions to end on January 31, 2012; such a date is arbitrary given the intent to reward Mr. Persaud for the work he had done getting the leases in place.
[55] As an alternative to the January 31, 2012 end date, the defendant argues that it was never intended that the plaintiffs would continue to receive commissions after the termination of their relationship with the defendant. Again, nothing in the wording of the Agreement supports this view. The Addendum makes clear that the defendant’s obligation to pay commissions was to continue until all amounts due under that provision are fully paid.
[56] The defendant also argues that the economics of FIT contracts changed, and that this supports its view that the obligation to pay commissions is time limited. Again, the wording of the Commission Agreement simply does not support this view. While it may have turned out that the economics changed, and that the price of energy in the successive phases of FIT contracts went down, that is not an issue the parties addressed in the Commission Agreement. It may be unfortunate for the defendant, but not a consideration that allows me to impose a time limit on the defendant’s obligations in the absence of such time limits in the agreement itself.
[57] Having said this, in my view, the plaintiffs' position that they are entitled to $2,000,000 regardless of when the lease was entered into is an overreach. For one, the agreement makes reference to "up to $2,000,000", thereby contemplating that they would not necessarily receive the full $2,000,000. Secondly, the wording of the agreement is more consistent with an interpretation that would allow the plaintiffs to receive a commission on the first 60 MW of sites for which SPN obtained a lease if the projects on those sites end up generating revenue, rather than an interpretation that would give a commission to the plaintiffs on the first 60 MW of sites to generate some kind of financial return regardless of Mr. Persaud’s involvement. The provision dealing with the calculation of commissions makes reference to "the first 60MW of sites up to a maximum of $2,000,000". As reviewed above, by the time Mr. Persaud changed roles, SPN had 60 MW of leases, clearly suggesting that the plaintiffs were to receive commissions only on those projects and only if those projects ended up generating revenue. In cases in which the first 60 MW of sites do not end up generating any revenue, no commission would be payable. This gives meaning to the use of the words "up to a maximum" and it also reflects the intention to reward the plaintiffs for work Mr. Persaud did before he switched roles at SPN. In this respect, I note that the provision dealing with commissions does not say “the first 60 MW of sites to generate revenue”; it simply says “the first 60 MW of sites”. To read in “to generate revenue” would render the words “up to a maximum of $2,000,000” meaningless. In addition, it would mean that Mr. Persaud would receive a commission for work he did not do or for getting leases on sites that ultimately do not generate any revenue.
[58] The plaintiffs rely on Mr. Persaud's belief that he was to receive $2,000,000 in payments for the first 60 MW of projects to generate revenue regardless of his involvement in those projects, arguing that his understanding is reflected in a number of email exchanges between Mr. Persaud and Mr. Goodman. The surrounding circumstances are meant to assist in understanding the parties' intentions. However, one party's subjective intention is not meant to supersede the plain language in the agreement. Similarly, any intentions reflected in email communications that predate the signing of the agreement are not helpful if the language of the agreement itself is unambiguous. In any event, the Commission Agreement includes an entire agreement clause that explicitly states that the agreement supersedes any prior agreements. To the extent that the plaintiffs rely on a number of emails that postdate the signing of the agreement, these are generally emails from Mr. Persaud to Mr. Goldman or others in which he sets out his understanding or expectations; however, in the absence of a response, they do not reflect an agreement to modify the Commission Agreement on the defendants’ part.
[59] The plaintiffs also argue that the defendant did pay commissions on a couple of sites for leases obtained after Mr. Persaud’s role as Vice-President of Sales and that this shows that their interpretation is correct. In this respect, I accept the defendant’s explanation that Mr. Persaud invoiced for the commissions and the defendant may have made errors in making those payments. In any event, the fact that the defendant made two or three such payments does not lead to a different interpretation of the agreement.
[60] In my view, neither of the parties' positions is supported by the wording of the contract or the circumstances surrounding the formation of the contract. Rather, I find that the plaintiffs are entitled to commissions on the first 60 MW of sites on which SPN obtained leases. The commissions are payable only if and when those projects are connected to the power grid and SPN either receives payments from a LCD or completes the sale of the site to a third party, up to a maximum of $2,000,000. If some of the sites amongst the first 60 MW of sites for which SPN has obtained leases never come to fruition, then the plaintiffs are not to receive a commission for those projects nor are they to receive commissions for any projects beyond the first 60 MW of sites on which SPN obtained leases. This may mean that the plaintiffs end up being paid far less than $2,000,000 in commissions, but this is consistent with the language and the intent of the agreement.
Damages
[61] My finding regarding the plaintiffs’ entitlement to commissions is set out in paragraph 60 of these reasons.
[62] In advance of the motion, neither party provided evidence that would allow me to calculate the plaintiffs' damages. By the time of the motion, SPN had produced a chart setting out all projects and their status. However, the chart was not attached to an affidavit and it appears that the chart is subject to ongoing updates as more projects come to fruition.
[63] Accordingly, I am not confident that I can calculate the plaintiffs' damages. I expect that, with my findings on this motion, the parties should be able to calculate the plaintiff's entitlement to damages which will be ongoing until the status of all projects that fall under the first 60 MW umbrella is ascertained.
[64] If the parties have any difficulties calculating damages, my assistant can be contacted to arrange for further submissions on the issue.
Conclusion
[65] I am satisfied that this is an appropriate case for summary judgment and that there is no genuine issue for trial. As reviewed above, with the plaintiffs' abandonment of the claim for stock options, the only claim left is the claim for unpaid commissions, and therefore this is not a motion for partial summary judgment. In respect of the claim for unpaid commissions, the issue turns primarily on matters of contractual interpretation which are appropriate for summary judgment.
[66] For the reasons above, I am satisfied that the defendant breached the Commission Agreement and that the plaintiffs are entitled to damages in accordance with my direction at paragraph 60 of these reasons. Again, if the parties have any difficulties agreeing on damages, my assistant can be contacted to arrange for further submissions on the issue.
[67] I encourage the parties to reach agreement on costs. If they are not able to do so, the plaintiffs are to send submissions not exceeding five pages to my attention within 10 days of the release of these reasons, and the defendant is to send submissions not exceeding five pages 10 days thereafter.
FAVREAU J.