COURT FILE NO.: CV-19-00630752-0000 DATE: 2020/12/07
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
BLOOR PARLIAMENT (BLOCK A) INVESTMENTS LIMITED and BLOOR PARLIAMENT (BLOCK B) INVESTMENTS LIMITED Applicants
- and -
SHERBOURNE RESIDENTIAL (CONCERT) LP, by its general partner SHERBOURNE RESIDENTIAL (CONCERT) GP INC. Respondent
Counsel: William A. Chalmers for the Applicants Eli D. Mogil and Brendan Smith for the Respondent
APPLICATION UNDER sub-rules 14.05(3)(d), 14.05(3)(g) and 14.05(3)(h) of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194
HEARD: December 1, 2020
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] The Applicants, Bloor Parliament (Block A) Investments Limited and Bloor Parliament (Block B) Investments Limited (collectively “Bloor Parliament”), and the Respondent, Sherbourne Residential (Concert) LP, a limited partnership whose general partner is Sherbourne Residential (Concert) GP Inc., are land developers.
[2] Bloor Parliament sold a property in downtown Toronto to Sherbourne Residential. The Agreement of Purchase and Sale had a holdback of $2 million of the purchase price with respect to Sherbourne Residential’s ultimate obligation to provide parkland to the City of Toronto or to make a cash-in-lieu payment.
[3] Bloor Parliament asserts that the holdback is now payable. More particularly, Bloor Parliament seeks: (a) a declaration that the conditions for the release of the Parkland Holdback by the Escrow Agent set out in Schedule “D” of the Agreement of Purchase and Sale and of the Escrow Agreement have been met; (b) a declaration that it is entitled to the Parkland Holdback forthwith; and (c) a mandatory order directing the Escrow Agent to forthwith release the Parkland Holdback.
[4] This is all denied and disputed by Sherbourne Residential. This Application is brought to determine whose assertion is correct.
[5] For the reasons that follow, I dismiss Bloor Parliament’s Application.
B. Facts
[6] Section 42 of the Planning Act provides that as a condition of development of land, a municipality may by by-law require land to be conveyed to the municipality for park purposes or as an alternative the developer may pay cash in lieu of a conveyance. Section 42 states:
Conveyance
(1) As a condition of development or redevelopment of land, the council of a local municipality may, by by-law applicable to the whole municipality or to any defined area or areas thereof, require that land in an amount not exceeding, in the case of land proposed for development or redevelopment for commercial or industrial purposes, 2 per cent and in all other cases 5 per cent of the land be conveyed to the municipality for park or other public recreational purposes.
Alternative requirement
(3) Subject to subsection (4), as an alternative to requiring the conveyance provided for in subsection (1), in the case of land proposed for development or redevelopment for residential purposes, the by-law may require that land be conveyed to the municipality for park or other public recreational purposes at a rate of one hectare for each 300 dwelling units proposed or at such lesser rate as may be specified in the by-law.
Official plan requirement
(4) The alternative requirement authorized by subsection (3) may not be provided for in a by-law passed under this section unless there is an official plan in effect in the local municipality that contains specific policies dealing with the provision of lands for park or other public recreational purposes and the use of the alternative requirement.
Payment in lieu
(6) If a rate authorized by subsection (1) applies, the council may require a payment in lieu, to the value of the land otherwise required to be conveyed.
Same
(6.0.1) If a rate authorized by subsection (3) applies, the council may require a payment in lieu, calculated by using a rate of one hectare for each 500 dwelling units proposed or such lesser rate as may be specified in the by-law.
[7] As appears from s. 42 of the Planning Act, parkland dedication requirements are established through the adoption of a parkland by-law by a local municipality. Under the statute, the standard rate for parkland dedication for residential development is subject to a maximum of 5% of the land area. Municipalities may establish an “alternative” parkland dedication rate at a maximum rate of 1 hectare (ha) per 300 dwelling units. If a municipality wishes to establish an alternative to the standard rate, it cannot do so unless there is an official plan in effect that contains “specific policies dealing with the provision of lands for park or other public recreational purposes. The Planning Act specified that if the municipality enacts a by-law establishing an alternative parkland dedication rate, the maximum rate chargeable is 1.0 ha/300 units or 1.0 ha/500 units in the case of a cash-in-lieu payment.
[8] The cash-in-lieu payment for the parkland dedication is made when the landowner applies for an above-grade building permit.
[9] Pursuant to an Agreement of Purchase and Sale dated February 7, 2018, Bloor Parliament sold a development property in downtown Toronto in the Bloor Street East and Sherbourne Street area to Concert Real Estate Corporation for a purchase price of $102.4 million, and Concert Real Estate assigned the Agreement of Purchase and Sale to Sherbourne Residential pursuant to an Assignment and Assumption Agreement made as of March 19, 2018.
[10] At the time when Bloor Parliament put its downtown Toronto property up for sale: (a) Policy 3.2.3.5 of the City of Toronto’s Official Plan contained policies dealing with the provision of lands for park or other public recreational purposes and a policy for a payment of cash in lieu; and (b) the City had enacted as a part of its Municipal Code, a by-law in compliance with Official Plan Policy 3.2.3.5. At the time when Bloor Parliament placed its property up for sale, it made the cash-in-lieu payment to the City and Bloor Parliament advertised the property as not requiring a parkland dedication or a cash-in-lieu payment.
[11] Policy 3.2.3.5 of the Official Plan and the compliant by-law authorized the use of an alternative residential parkland rate of 0.4 ha per 300 units. That rate was subject to a series of caps (maximums) on the dedication based on the size of the site; namely: (a) sites less than 1 ha. were subject to a maximum dedication of 10% of the site area; (b) sites between 1-5 ha. were subject to a 15% cap; and (c) sites greater than 20 ha. were subject to a 20% cap. In no case would the parkland dedication, cash in lieu, or combination thereof, be less than 5 per cent of the development site or the value of the development site, net of any conveyances for public road purposes.
[12] At the time when the parties were negotiating the Agreement of Purchase and Sale, it was public knowledge that the City was in the process of adopting new urban land planning policies that would have enabled the City to establish new parkland dedication requirements, for a geographic area of the City that included the subject property. In other words, it was public knowledge that the City was going to seek approval for a Secondary Official Plan to amend the existing Official Plan for the downtown part of the municipality.
[13] In the immediate case, to address the contingency or prospect that more money would be owed to the City to develop the lands, the parties negotiated and included Schedule “D” in the Agreement of Purchase and Sale. Schedule “D” provided for a $2.0 million Parkland Holdback. The holdback sum ($2 million) was part of the purchase price, and it was to be held in trust by an Escrow Agent as security for the potential Parkland Adjustment in accordance with the terms of Schedule “D”. Subsection 3.2 (b) of the Agreement of Purchase and Sale stated:
The Purchase Price shall be satisfied by the Purchaser as follows: […]
(b) as to the sum of $2,000,000 (the “Parkland Holdback”) by certified cheque, bank draft or by wire transfer to the Escrow Agent, in trust on Closing to be held in accordance with the terms of the Escrow Agreement as security for the potential Parkland Adjustment (as defined in Schedule “D”) in accordance with the terms of Schedule “D” [...]
[14] Schedule “D” of the Agreement of Purchase and Sale stated:
WHEREAS the Vendor and Purchaser acknowledge that there is the potential for the Existing Parkland Requirements to be increased beyond their current levels in the short term, and as such they recognize that this has the potential to increase the costs of the Development as currently contemplated. In order to account for this risk, the parties have agreed that they will enter into the Escrow Agreement to govern the Parkland Holdback in accordance with the provisions of this Schedule “D”;
NOW THEREFORE, in consideration of the mutual covenants and agreements set out in this Schedule and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties agree as follows:
Defined Terms:
"City" means the City of Toronto;
“Development" means with respect to the Block 1 Lands the development of a building having a maximum of 470 residential units with 38,700 square metres of residential gross floor area and 1,100 square metres of non-residential gross floor area and with respect to the Block 2 Lands a development containing 6 semi-detached units and 7 row house units for a total of 13 residential units with a total gross floor area of 2,130 square metres of gross floor area inclusive of 880 square metres of gross floor area in the existing semi-detached units;
“Existing Parkland Requirements" means any Parkland Dedication obligations applicable to the Lands as of the date of this Agreement under the in-force Official Plan and the in-force Parkland Dedication By-law as they both exist as of the date of this Agreement;
“Official Plan" means the Official Plan for the City as amended, superseded or replaced from time to time;
“Official Plan Amendment" means an amendment to the Official Plan adopted by the City after the date of this Agreement which provides for Proposed Parkland Requirements;
“Parkland Adjustment” means the value of any additional Parkland Dedication obligations (using the Purchase Price as the total value of the Lands with $87,400,000.00 attributable to the Block 1 Lands and $15,000,000.00 to the Block 2 Lands), in excess of the Existing Parkland Requirements, applicable to the Development under any Proposed Parkland Requirements;
“Parkland Dedication” means any requirement to convey parkland, or the payment of cash-in-lieu thereof, to the municipality under the Planning Act, or otherwise;
“Parkland Dedication By-law” means any by-law passed by the City pursuant to the Planning Act requiring the conveyance of parkland or cash in lieu thereof as a condition of development or redevelopment;
“Parkland Holdback” has the meaning given to it in Section 3.2(c) of the attached Agreement [of Purchase and Sale];
“Planning Act” means the Planning Act, R.S.O. 1990, c. P.13, as amended, superseded or replaced from time to time;
"Proposed Parkland Requirements” means any Parkland Dedication obligations applicable to the Lands pursuant to a Parkland Dedication By-law passed by the City after the date of this Agreement.
Parkland Holdback Provisions:
The Vendor and Purchaser acknowledge that the dedication of the Block 3 Park in accordance with the Section 37 Agreement will satisfy all of the Purchaser's and the Block 3 Owner’s Parkland Dedication obligations under the Existing Parkland Requirements.
The Purchaser acknowledges that the Vendor has no requirement to provide any additional contribution, over and above the Parkland Holdback, towards any parkland dedication or parkland cash in lieu payments whatsoever with respect to any lands governed by the Municipal Agreements except for the Parkland Dedication in accordance with the Existing Parkland Requirements.
It is acknowledged by the Vendor and the Purchaser, that the Parkland Holdback shall be released to the Vendor, less the value of the Parkland Adjustment, if any. forthwith upon the earlier of (i) twelve (12) months following Closing, and (ii) the determination of the Parkland Adjustment value in accordance with Section 4 of this Schedule “D". Notwithstanding the foregoing, if an Official Plan Amendment is adopted by the City within twelve (12) months following Closing, then the release of the Parkland Holdback shall be the earlier of: (a) five (5) years following Closing, and (b) the determination of the Parkland Adjustment value in accordance with Section 4 of this Schedule “D”.
The determination of the Parkland Adjustment shall be determined as follows upon the Proposed Parkland Requirements coming into full force and effect:
a. the value attributed to the additional Parkland Dedication obligations as agreed to by both Cynthia MacDougall of McCarthy Tetrault LLP and Kim Kovar of Aird & Beilis LLP, taking into account any applicable phasing provided for under such Proposed Parkland Requirements; or
b. in the event that Cynthia MacDougall and Kim Kovar are unable to mutually agree on the value of such additional Parkland Dedication obligations within 30 days of the Proposed Parkland Requirements coming into full force and effect, then they shall as soon as possible appoint a third person, expert in the area of municipal law and Parkland Dedications, to choose the correct value as chosen by either Cynthia MacDougall or Kim Kovar as the value to be used to ascertain the amount of the Parkland Adjustment and who shall be asked to do so within 30 days of being appointed.
- For greater certainty, the parties agree that:
a. there will be no Parkland Adjustment payable unless an Official Plan Amendment is adopted by the City within one year of Closing;
b. if an Official Plan Amendment is adopted within one year of Closing but is appealed, then no Parkland Adjustment will be payable unless such appeal is resolved and Proposed Parkland Requirements is passed by the City prior to the Purchaser obtaining an above-grade building permit for that part of the Development on the Block 1 Lands;
c. if an appeal of an Official Plan Amendment is resolved and Proposed Parkland Requirements is passed by the City prior to the Purchaser obtaining its above-grade building permit for the part of the Development on the Block 1 Lands, then the Parkland Adjustment will be determined based on the terms of the Proposed Parkland Requirements as they apply to the entire Development; and
d. without derogating from any of the other provisions of this Schedule “D””, if the Purchaser does not obtain an above-grade building permit for the part of the Development on the Block 1 Lands prior to the fifth anniversary of the Closing Date, then the Parkland Holdback will be released in full to the Vendor.
- Any Parkland Adjustment, as determined in accordance with Section 4 of this Schedule “D", shall be payable to the Purchaser from the Parkland Holdback in accordance with the terms of the Escrow Agreement.
[15] On March 19, 2018, the sale transaction closed. The parties and McCarthy Tétrault LLP, as Escrow Agent, entered into an Escrow Agreement in accordance with the Agreement of Purchase and Sale. Section 6.5 of the Escrow Agreement provides that the parties have the right to apply to a court with respect to any matter affecting the obligations of the Escrow Agent or otherwise relating to the Parkland Holdback.
[16] On April 17, 2018, the City Planning Staff in a public report recommended the adoption of Official Plan Amendment No. 406, otherwise known as the Downtown Secondary Plan. The draft plan included Policy 7.41 with respect to parkland dedication. Referring to Policy 7.41, the Staff Report stated:
Placeholder parkland dedication policies were included in the proposed Downtown Plan. These have been replaced with a new policy that identifies that an area-specific alternative parkland dedication by-law will be adopted for the Downtown. The by-law would be an amendment to the Municipal Code.
The new policy in the recommended Downtown Plan also clarifies that new developments will be expected to contribute parkland commensurate with the intensity of development, rather than the current requirement of a percentage of the size of a site that does not account for range of development intensity the Downtown is experiencing. The key principle that will be applied is that the more intense the development, the more parkland that will be required to be provided.
[17] On July 27, 2018, the City adopted new policies for the downtown core through the adoption of Official Plan Amendment No. 40. The Downtown Secondary Plan included Policy 7.41, which addressed the matter of a parkland dedication by-law to be adopted for the Downtown area, as follows:
7.41 The City will adopt by by-law for the Downtown area, an alternative requirement for parkland dedication at rates commensurate with the intensity of development. The rates established by by-law may be based on, but not limited to, densities, building types, heights and/or the number of units associated with development, and could also include separate rates for land and cash-in-lieu of parkland.
[18] On June 5, 2019, the Minister approved Official Plan Amendment No. 406 with 224 modifications, one of which was the removal of Policy 7.41 from the plan amendment. Thus, the current parkland by-law remains in effect.
[19] The current situation is that Sherbourne Residential has not applied for a building permit, but if it applied for one today, no additional payments for parkland dedication purposes would be required.
[20] In any event, Bloor Parliament submits that the Parkland Holdback should now be released to it because it submits that it is twelve months following the closing and an Official Plan Amendment has not been adopted within twelve months following the closing.
[21] The point of the spear of Bloor Parliament’s argument is that although the City did adopt an Official Plan Amendment within twelve months following the closing, it did not adopt the Official Plan Amendment defined by Schedule “D” of the Agreement of Purchase and Sale, which entails an Official Plan Amendment that prescribes or specifies increases in the Parkland Requirements. In this regard, Bloor Parliament submits that Policy 7.41 does not have any specifications at all, let alone specifications for an increased cash-in-lieu payment and it is not possible for Policy 7.41 to become the Official Plan defined by Schedule “D” of the Agreement of Purchase and Sale.
[22] Based on its interpretation of Schedule “D”, Bloor Parliament has asked that the Parkland Holdback of the purchase monies be released. However, Sherbourne Residential has refused to instruct the Escrow Agent to release the Parkland Holdback and the Escrow Agent has refused to release the Parkland Holdback.
C. Discussion and Analysis
[23] The parties agree that the resolution of the immediate case is a matter of contract interpretation, and they agree on the applicable legal principles of contract interpretation.
[24] The goal of contractual interpretation is to determine the intent of the parties and the scope of their understanding giving the words the parties used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract.[^1]
[25] Contract interpretation is an exercise in which certain principles or maxims are applied to the words of the written contract, considered in light of the factual matrix.[^2] The rules of contract interpretation direct a court to search for an interpretation from the whole of the contract that advances the intent of the parties at the time they signed the agreement.[^3] In searching for the intent of the parties at the time when they negotiated their contract, the court should give particular consideration to the words used by the parties, the context in which they are used and the purpose sought by the parties in using those words.[^4] Provisions should not be read in isolation but in harmony with the agreement as a whole.[^5] A contract is to be interpreted as a whole, 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.[^6]
[26] The factual nexus is objective evidence of the background facts at the time of the execution of the contract; i.e., knowledge that was or that reasonably ought to have been within the knowledge of the parties at or before the date of contracting, including anything that would have affected the way in which the language of the document would have been understood by a reasonable person.[^7]
[27] In interpreting the contract, the court must have regard to the objective evidence of the factual matrix, the context underlying the negotiation of the contract, but the court must not have regard to the subjective evidence of the intention of the contracting parties about the negotiations and what was intended by them.[^8] While evidence of the parties’ subjective intent is not admissible by the parol evidence rule, in interpreting a commercial contract, the court may have regard to the surrounding circumstances; that is, the factual background and the commercial purpose of the contract.[^9]
[28] The interpretative dispute in the immediate case concerns the provision in Schedule “D” that states: “there will be no Parkland Adjustment payable unless an Official Plan Amendment is adopted by the City within one year of Closing.”
[29] As noted above, notwithstanding that the closing occurred on March 19, 2018 and on July 27, 2018, the City of Toronto adopted a Secondary Official Plan that included Policy 7.41, Bloor Parliament submits that an Official Plan Amendment was not adopted by the City within one year of Closing.
[30] Bloor Parliament submits that Policy 7.41 was not “an Official Plan Amendment” because those words must be read incorporating by internal reference all of the other words of Schedule “D” and most particularly the words “any Official Plan” are circumscribed or constrained by the definitions and by the preamble of Schedule “D”, to which Bloor Parliament attributes considerable restrictive contractual weight. Bloor Parliament thus argues that Policy 7.41 is not an Official Plan Amendment because it does not expressly address the potential for an increased Parkland Dedication beyond those existing at the time of closing.
[31] Bloor Parliament submits that to determine whether Policy 7.41 is “an Official Plan Amendment” encompassed by Schedule “D”, one must consider not just whether it was an official plan amendment, but whether Policy 7.41 was an amendment to the Official Plan that provides for obligations pursuant to a Parkland Dedication By-law requiring the payment of additional cash in lieu above that payable under the existing Parkland Dedication By-law.
[32] In other words, Bloor Parliament submits that Policy 7.41 is not specific enough in providing for an increased parkland dedication payment to qualify as “an Official Plan Amendment” as it is defined in Schedule “D”.
[33] With respect, Bloor Parliament’s argument is not consistent with the principles of contract interpretation and rather it is an effort to avoid the plain and obvious meaning of Schedule “D”.
[34] Notwithstanding Bloor Parliament’s arguments to the contrary, Policy 7.41 does fall within the contractual intention of the parties as expressed in the language of Schedule “D” interpreted in the relevant factual nexus at the time of contracting. Bloor Parliament even concedes in its Reply Factum that Policy 7.41 “could have established the basis for a potential change to the alternative parkland dedication rate in the Downtown Plan area”. That concession is true and actually makes the point that Policy 7.41 in both letter and spirit and also operatively falls within the contractual intention of the parties.
[35] And it is of no matter that Policy 7.41 is not more specific in increasing the rate, which Bloor Parliament also concedes was what the City intended in adopting Policy 7.41. Bloor Parliament is simply wrong that Policy 7.41 is not a specific enough Official Plan Amendment to provide for an increased parkland dedication payment. As a matter of municipal and planning law that is certainly the case because the authorities hold that “the phrase “specific policies dealing with the use of the alternative requirement” in section 42(4) of the Planning Act does not require that an alternative rate be specified.[^10]
[36] Policy 7.41 provides guidelines, which is to say it provides “specific policies” as to how the alternative dedication rate would be established by indicating, to quote from the policy, that: “the rates established by by-law may be based on, but not limited to, densities, building types, heights and/or the number of units associated with development, and could also include separate rates for land and cash-in-lieu of parkland.”
[37] Thus, it is also true as a matter of contract interpretation that Policy 7.41 is specific enough to qualify as falling within Schedule “D”. To repeat, Policy 7.41 specifically provides that the rates established by by-law may be based on, but not limited to, densities, building types, heights and/or the number of units associated with development, and could also include separate rates for land and cash in lieu of parkland. Policy 7.41 is specific enough to signal the prospect that the landowner of the subject property of the Agreement of Purchase and Sale would be required to pay for an increased parkland dedication when it applied for a building permit.
[38] The truth of the prospect of an increased cash-in-lieu payment cannot be confirmed in the real world because the Minister struck Policy 7.41 from the adopted Official Plan, but had the policy not been struck, Policy 7.41 would undoubtedly have supported the City enacting a by-law imposing higher rates based on the intensity of the development in the downtown area.
[39] Bloor Parliament submits that it can be demonstrated that Policy 7.41 does not qualify as an Official Plan Amendment in accordance with Schedule “D” by asking the question: “What are the additional PARKLAND DEDICATION obligations in excess of the Existing PARKLAND REQUIREMENTS to convey parkland or the payment of cash-in-lieu thereof applicable to the Lands provided for by Policy 7.41?” which would yield the answer “none”.
[40] With respect, this is not the correct question because both as a matter of municipal and planning law and as a matter of contract interpretation, it would have been the by-law and not the policy that would prescribe the parkland dedication obligations. In the immediate case, as noted above, a by-law compliant with Policy 7.41 had the potential of increasing the cash-in-lieu obligations of Sherbourne Residential.
[41] It is of no moment to the interpretation of Schedule “D” that the Minister did not allow Policy 7.41 and therefore there is no Official Plan Amendment to support a parkland dedication by-law that would increase the expense of developing the property now owned by Sherbourne Residential. I say this circumstance, which was not part of the factual nexus at the time the parties were negotiating Schedule “D”, does not affect the interpretation and operation of Schedule “D” which was connected to the City approving an Amendment to its Official Plan within one year of the closing of the sale transaction which was the circumstance foreseen by the parties and which circumstance triggered the holdback provisions of Schedule “D”.
[42] Because it is not known whether Sherbourne Residential will apply for a building permit before five years from closing, i.e., by March 19, 2023, it is not known whether the holdback provisions of Schedule “D” will be triggered. It is known that if Sherbourne Residential delays until after March 19, 2023, it will not be able to rely on the holdback provisions. It is also known that in the short term there is little prospect that the holdback provisions of Schedule “D” are needed. The parties agreed that if Sherbourne Residential applied for a building permit today, no additional cash-in-lieu payment would be required. In the long term, i.e. up until March 19, 2023, however, there is the theoretical prospect that there might be a “Parkland Adjustment”. The prospect would materialize if before Sherbourne Residential applied for a building permit, the City adopted another amendment to its Official Plan that would support increased parkland obligations.
[43] But for present purposes, the point to keep in mind is that the parties agreed that if an Official Plan Amendment was adopted by the City within one year of closing, then the holdback provisions of Schedule “D” were triggered and whether or not there will be a Parkland Adjustment remains to be seen.
[44] Put shortly, Bloor Parliament’s interpretation of Schedule “D” is wrong, and it is not entitled to a declaration that the conditions for the release of the Parkland Holdback by the Escrow Agent as set out in Schedule “D” have been met.
D. Conclusion
[45] For the above reasons, the Application is dismissed. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Sherbourne Residential’s submissions within twenty days of the release of these Reasons for Decision followed by Bloor Parliament’s submissions within a further twenty days.
[^1]: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at para. 47; Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4 at paras. 64-65; Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21 at para. 27.
[^2]: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at para. 50.
[^3]: Unique Broadband Systems Inc. (Re), 2014 ONCA 538 at paras.83-90; Consolidated-Bathurst Export Ltd. v. Mutual Boiler & Machinery Insurance Co., [1980] 1 S.C.R. 888.
[^4]: Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 64.
[^5]: Scanlon v. Castlepoint Dev. Corp. (1993), 11 O.R. (3d) 744 (C.A.); Hillis Oil and Sales Limited v. Wynn's Canada, [1986] 1 S.C.R. 57; McClelland and Stewart Ltd. v. Mutual Life Assurance Co. of Canada, [1981] 2 S.C.R. 6.
[^6]: 2249778 Ontario Inc. v. Smith (c.o.b. Fratburger), 2014 ONCA 788 at para. 19.
[^7]: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at para. 58.
[^8]: GoodLife Fitness Centres Inc. v. Rock Developments Inc., 2019 ONCA 58; The Canada Trust Company v. Browne, 2012 ONCA 862 at para. 71; Salah v. Timothy's Coffees of the World Inc., 2010 ONCA 673 at para. 16.
[^9]: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at paras. 58-61; Canada Square Corp. v. VS Services Ltd. (1981), 34 O.R. (2d) 250 (C.A.); Reardon Smith Line v. Hansen-Tangen, [1976] 3 All E.R. 570 (H.L.); Prenn v. Simmonds, [1971] 3 All E.R. 240 (H.L.).
[^10]: Richmond Hill (Town) v. Elginbay Corporation, 2016 ONSC 1673, at para 32 (leave to appeal to Div. Ct.), 2016 ONSC 5560 (Div. Ct.), affd 2018 ONCA 72.
COURT FILE NO.: CV-19-00630752-0000 DATE: 2020/12/07
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
BLOOR PARLIAMENT (BLOCK A) INVESTMENTS LIMITED and BLOOR PARLIAMENT (BLOCK B) INVESTMENTS LIMITED Applicants
- and -
SHERBOURNE RESIDENTIAL (CONCERT) LP, by its general partner SHERBOURNE RESIDENTIAL (CONCERT) GP INC. Respondent
REASONS FOR DECISION
PERELL J.
Released: December 7, 2020