COURT OF APPEAL FOR ONTARIO

CITATION: RBC Dominion Securities Inc. v. Crew Gold
    Corporation,

2017 ONCA 648

DATE: 20170810

DOCKET: C62781

Weiler, van Rensburg and Huscroft JJ.A.

BETWEEN

RBC Dominion Securities Inc. and Royal Bank of
    Canada Europe Limited

Plaintiffs (Appellants)

and

Crew Gold Corporation

Defendant (Respondent)

Jeremy Devereux and Michael Bookman, for the appellants

Alistair Crawley and Natalia Vandervoort, for the
    respondent

Heard: June 9, 2017

On appeal from the judgment of Justice Arthur M. Gans of
    the Superior Court of Justice, dated September 13, 2016, with reasons reported
    at 2016 ONSC 5529, [2016] O.J. No. 4862.

van Rensburg J.A.:

I.

Overview

[1]

This is an appeal in a contract interpretation
    case.

[2]

The central facts are not in dispute. The
    appellants,
RBC Dominion Securities Inc. and Royal Bank of Canada Europe
    Limited
(together RBC), sued the respondent, Crew Gold
    Corporation (Crew), for a fee, described as a Success Fee, that they argued
    was owed to them under an engagement letter for the provision of investment
    banking services (the Agreement). RBC provided services under the Agreement
    to assist Crew in developing and implementing strategic alternatives. The
    Agreement provided for service fees based on specific work performed by RBC,
    and for a Success Fee, payable on completion of a Transaction, as defined by
    the Agreement.

[3]

In the course of the Agreement, Crew, then a
    public company, was the subject of a takeover, an event that was not
    anticipated by either party. The sole issue at trial was whether, under the
    Agreement, RBC was entitled to a Success Fee in respect of any or all of the
    transactions involved in the takeover even though it played no part in the
    transactions. The trial judge found that RBC was not entitled to a Success Fee
    under the Agreement and dismissed RBCs action.

[4]

RBC appeals, asserting that the trial judge made
    extricable errors of law in his interpretation of the Agreement. I find no such
    errors, and for the reasons that follow, would dismiss the appeal.

II.

Facts

[5]

Crew was a gold mining company whose principal asset was a gold mine in
    West Africa. At all material times, Crews shares were publically traded on the
    Toronto and Oslo Stock Exchanges (the TSE and the Oslo Bors).

[6]

In October 2008, the mine was not yielding sufficient net revenue to
    service Crews significant debt obligations. Crews board of directors (the Crew
    Board) retained RBC as a financial advisor for a term of 18 months to develop,
    evaluate and potentially assist the company in implementing strategic transaction
    alternatives based on its valuation of the company (the 2008 Engagement). After
    RBC presented its strategic alternatives to Crew, RBC invoiced the company and
    was paid US$95,000 for its work under the 2008 Engagement.

[7]

In late November 2008, using a Norwegian securities firm, Crew undertook
    a rights offering on the Oslo Bors to meet its cash flow needs.

[8]

In March 2009, RBC made a further presentation to the Crew Board on Crews
    strategic alternatives in light of the rights offering and improved market
    conditions. These generally contemplated either an
en bloc
sale of
    shares for cash or shares, or the disposition of Crew assets or some form of
    strategic partnership (the RBC Alternatives). In October 2009, RBC made another
    presentation to the Crew Board, outlining, among other things, its strategies
    for implementing one of the RBC Alternatives.

[9]

The parties entered into the Agreement in mid-December, dated as of
    October 20, 2009. The term of RBCs engagement under the Agreement was until
    the earliest of the closing of the Transaction, the termination of the engagement
    by either party upon written notice, and 12 months after the Agreements commencement.

[10]

The relevant terms of the Agreement are as follows:

·

Crew
    engaged RBC as its financial advisor in connection with a potential
    transaction (the Transaction) involving the direct or indirect sale or
    disposition of the Company.

·

The
    Transaction may involve (i) a sale of all or a substantial portion of the
    shares, business or assets of the Company to a third party, (ii) an investment
    by a third party in the Company that results in a change of control of the
    Company or (iii) an amalgamation, arrangement or other business transaction
    involving the Company and a third party to effect such sale or disposition.

·

RBC
    agreed to provide services in connection with a Transaction, which included
    financial analysis and advice on structuring, planning and negotiating a
    Transaction; if requested, the furnishing of fairness opinions; assistance in
    preparing a confidential information memorandum (CIM) for prospective investors;
    and managing the sale process, including contacting prospective purchasers,
    evaluating offers, and assisting in the completion of a Transaction.

·

The
    fees for RBCs services consisted of a Work Fee of US$25,000 per month for each
    month that RBC was actively involved in assisting in the execution of the
    Transaction; an Announcement Fee/Opinion Fee of US$750,000 payable on the
    earlier of the public announcement of the Transaction or the delivery of a
    fairness opinion; an Additional Opinion Fee of US$125,000 payable upon the delivery
    of each additional fairness opinion provided by RBC (after its initial opinion);
    and a Success Fee.

·

The
    Success Fee was to be calculated as the greater of US$2,000,000, and 0.95% of
    the Transaction Proceeds up to US$325,000,000 plus 1.75% of the Transaction
    Proceeds in excess of US$325,000,000, against which was to be credited 100% of
    the other fees paid or payable under the Agreement.

·

Transaction
    Proceeds included all amounts received by the Company or any affiliate or
    shareholder of the Company from the purchaser.

·

RBC
    was entitled to the Success Fee if a Transaction [was] completed involving any
    party, whether or not solicited by RBC, pursuant to an agreement to effect or
    otherwise complete a Transaction entered into during the term of its engagement
    or for a period of twelve months after termination of its engagement (the
    tail provision).

[11]

While the Agreement was in force, Crew concluded a restructuring
    agreement with its debenture holders that closed in December 2009, and was also
    handled by the Norwegian securities firm. As a result of the restructuring, the
    debenture holders came to own 95% of Crews issued and outstanding equity. GLG
    Partners (GLG), a London-based hedge fund and former debenture holder, became
    Crews largest shareholder, with a control block of approximately 31.6% of Crews
    shares, and appointed three new directors to the Crew Board.

[12]

RBC made another presentation to the Crew Board on December 15, 2009
    regarding the RBC Alternatives. RBC asserted that the time was right to engage
    in a broad solicitation of potential bidders under RBCs stewardship. At a
    meeting on January 22, 2010, the Crew Board approved by resolution the
    implementation of the RBC plan involving the marketing and sale or partial sale
    of the Company. In December 2009 and January 2010, RBC worked on numerous
    tasks to prepare a sale process, including the preparation of a draft CIM and
    identifying potential bidders to purchase GLGs control block.

[13]

RBC and Crew were aware that GLG could sell its interest to a third
    party without their involvement. Neither contemplated, however, that a serious
    purchaser would conclude an agreement without some form of due diligence, which
    would require a CIM and standstill agreement.

[14]

In fact, Endeavour Financial Corporation (Endeavour), a
    Vancouver-based investment bank, was in serious discussions with GLG to buy its
    control block, and was prepared to buy the block without reliance on the RBC/Crew-controlled
    due diligence process and without the execution of a CIM. In January 2010, Endeavour
    purchased GLGs shares and that of another institutional investor through one
    of its subsidiaries on the Oslo Bors, bringing its holdings in Crew to just
    under 38%. Endeavour was not on RBCs list of potential bidders and RBC played
    no part in brokering the deal.

[15]

Immediately after the Endeavour purchase, OAO Severstal (Severstal), a
    Russian mining company, began to significantly increase its holdings in Crew. As
    the trial judge described it, the race was then on between Endeavour and Severstal
    for the ultimate control and ownership of Crew. By early April 2010, each had
    increased its absolute position  Severstal owned almost 27% and Endeavour
    owned almost 43% of the company. In July 2010, Severstal had increased its
    shareholdings in Crew to just over 50%. Endeavour then sold its interest in
    Crew to Severstal in mid-September. Severstal eventually acquired the remaining
    Crew shares in January 2011 through a plan of arrangement.

[16]

While the takeover was unfolding, RBC offered to assist the Crew Board, but
    the offer was refused. Instead, Crew engaged Genuity Capital Markets to assist
    it in the takeover matters. On April 29, 2010, Crew terminated the Agreement. RBC
    immediately invoiced Crew for the Work Fee covering a six-month period, ending
    January 2010, which Crew paid.

[17]

In late August 2010, RBC sent the first in a series of Success Fee
    invoices to Crew, claiming an amount in excess of US$5,700,000, calculated on
    amounts paid by Severstal and Endeavour for the shares they acquired in the
    open market or by agreement with institutional vendors in 2010. Later, after Severstal
    purchased Endeavours block, RBC sent an amended invoice for the Success Fee for
    in excess of US$7,200,000.

[18]

As the trial judge explained, with the exception of the acquisition of
    the last remaining shares, each of the trades leading up to the takeover by
    Severstal, including those obtained by Endeavour, was through an open market
    transaction concluded on the Oslo Bors, and none of the transactions triggered
    Canadian or Norwegian takeover laws.

[19]

After Crew refused to pay the Success Fee invoices, RBC started the
    underlying action.

III.

The Trial Judges Reasons

[20]

The trial judge rejected RBCs claim. After
    setting out the facts, he turned to consider the positions of the parties.

[21]

RBC argued that the language of the Agreement
    was so broad and general as to permit the claim even though RBC was not involved
    in Endeavours or Severstals purchases of Crew shares. RBC argued that
    Severstals activities between February and December 2010 in purchasing the
    entirety of Crews shares and thereafter taking the company private amounted to
    the sale of all of the Companys shares to a third party. Alternatively, RBC
    argued that the separate purchases by Endeavour and Severstal amounted to the
    sale of a substantial portion of the shares of the Company to a third party.
    RBC relied on what it asserted was the expanded definition of Transaction in
    the definition of Transaction Proceeds to argue that these purchases
    constituted Transactions under the Agreement. RBC also asserted that, unlike
    the other fees payable under the Agreement, there was nothing to tie the
    Success Fee to services provided by RBC; and that the payment of the Service
    Fee depended only on the closing of a Transaction. Finally, RBC relied on the
    tail provision in support of the argument that it was entitled to a Success Fee
    so long as a Transaction was concluded within 12 months of the termination of
    the Agreement, regardless of RBCs contribution.

[22]

Crew argued that, for a Transaction to have
    taken place, RBC had to be involved in some manner and that a Success Fee was
    only payable as a consequence of the provision of financial advisory services. For
    a fee to be payable upon the closing of the Transaction, the Transaction must
    arise from the work effort of RBC. The description of services contained in the
    RBC proposals tabled before and after the execution of the Agreement
    underscored the notion RBC would be controlling any process connected to a
    Transaction, and that the Success Fee was payable as a function of the services
    performed. Crew also argued that RBCs interpretation, which would require it
    to pay a Success Fee upon the conclusion of any transaction between a third
    party and Crews shareholders who were disposing of a control block, made no
    commercial sense.

[23]

After setting out the relevant principles of contractual interpretation,
    which were not in dispute, the trial judge interpreted the Agreement.

[24]

First, he noted there was no ambiguity in the language used in respect
    of the terms Transaction or Success Fee. He held that, in interpreting the
    term Transaction and determining the intention of the parties at the time the
    Agreement was drawn, it was too limiting to simply have regard to the preamble
    and the extended definition found in Transaction Proceeds, as proposed by
    RBC, and that regard must be had to the Agreement as a whole.

[25]

The trial judge held that the Agreement was intended to speak to the
    rights and obligations of the parties in engaging RBC as the financial advisor
    in connection with a potential transaction involving the direct or indirect
    sale or disposition of the Company. The Agreement described a range of
    services RBC was to provide, which anticipated RBCs involvement in the Transaction.
    Under the Agreement, according to the trial judge, RBC was to be the composer,
    arranger and orchestrator  if not the orchestra leader  of the Transaction,
    in all its facets, for which it was to be paid a series of fees for services
    rendered.

[26]

The trial judge concluded that RBC was not intended to receive a Success
    Fee unless there was some causal link between its activities and the completed transaction,
    even though RBC was not required to introduce the successful purchaser to the
    transaction and even though RBCs involvement was not required to be a material
    cause of the transaction. The trial judge rejected RBCs submission that the
    wording of Transaction Proceeds expanded the definition of Transaction,
    concluding instead that it described the amounts to be included for Success Fee
    calculation purposes.

[27]

The trial judge then reviewed the factual matrix. He found that the
    entire thrust of RBCs strategy after the debt restructuring was to maximize
    shareholder value by creating and rolling out an RBC Alternative, namely a
    process for the sale of Crews assets or control shares. RBCs presentations all
    emphasized some form of an
en bloc
sale of assets or shares through a
    process orchestrated by RBC. RBC never spoke of the possibility of a third
    party purchase. Further, it was not on anyones radar that any one of the RBC
    Alternatives would include a purchase of control through the acquisition of
    sufficient shares on the Oslo Bors, or that any purchaser would acquire a
    significant interest in Crew without a due diligence inquiry, which would have
    involved RBC.

[28]

The trial judge offered an alternative ground for his
    interpretation of the Agreement that was not argued by the parties. The
    Agreement provided for the
negotiation of an additional fee in the event
    that there was an investment by a third party in the Company that does not
    result in a change of control. The trial judge characterized the share purchases
    by Severstal and Endeavour in the first six months of 2010 to be a substantial
    portion of Crews outstanding shares, but concluded that these purchases did not
    amount to a change of control. Therefore, RBC would not be entitled to a
    Success Fee on the purchases that took place in the lead up to an actual change
    of control. I note here that Crew
does not necessarily agree
    with this characterization and does not seek to uphold the trial judges
    decision on this basis.

IV.

Standard of Review

[29]

The primary goal of contractual interpretation
    is to determine the objective intent of the parties at the time the contract
    was drawn. Contractual interpretation involves the application of contractual
    interpretation principles to the words of the contract, considered in light of
    the factual matrix, and is therefore a question of mixed fact and law, which is
    entitled to deference absent a palpable and overriding error:
Sattva
    Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014]
    2 S.C.R. 633, at paras. 50, 55. The palpable and overriding error test is met
    if the trial judge misapprehended the evidence in that the findings are
    clearly wrong, unreasonable or not reasonably supported by the evidence:
L.(H.)
    v. Canada (Attorney General)
, 2005 SCC 25, [2005] 1
    S.C.R. 401, at paras. 55-56.

[30]

Where an extricable error of law can be
    identified independent of the trial judges application of the law to the
    facts, the error is to be reviewed on a standard of correctness. Extricable
    errors of law made in the course of contractual interpretation may include the
    application of an incorrect principle, the failure to consider a required
    element of a legal test, or the failure to consider a relevant factor:
Sattva
, at para. 53, citing
King v. Operating Engineers
    Training Institute of Manitoba Inc.
, 2011 MBCA 80, 270
    Man. R. (2d) 63, at para. 21. The circumstances in which a question of law can
    be extricated from the interpretation process will be rare:
Sattva
, at para. 55.

V.

Issues

[31]

RBC contends that, although the trial judge
    correctly identified the proper principles of contractual interpretation, he
    did not apply these principles and, as such, committed errors of law. RBC
    argues that there were three categories of extricable errors of law in the
    trial judges interpretation of the Agreement, which can be broadly described
    as follows:

1.

The trial judge failed to consider the plain
    words of the Agreement in the context of the contract as a whole, and in a
    manner that gives meaning to all of its terms and that avoids an interpretation
    that would render one or more of its terms ineffective.

2.

The trial judge failed to correctly consider the objective evidence
    of the surrounding circumstances and relied on his findings as to the parties
    subjective intentions or the lack thereof, and allowed those findings to
    overwhelm the wording of the Agreement.

3.

The trial judge failed to consider the
    commercial reasonableness of the interpretation of the Agreement advanced by
    RBC.

[32]

Within these three categories, RBC seeks to
    identify specific errors. I will address each category in turn.

VI.

Discussion

(1)

Alleged Failure to Consider the Plain Words of
    the Agreement in the Context of the Contract as a Whole

[33]

RBC contends that the trial judge failed to
    determine the meaning of the words in the Agreement by construing the contract
    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:
Salah
    v. Timothys Coffees of the World Inc.
, 2010 ONCA 673,
    268 O.A.C. 279, at para. 16.

[34]

Here RBC relies on many of the same arguments it
    advanced at trial  essentially that Transaction is broadly defined in the
    Agreement; that the purchases by Endeavor and Severstal fell within the
    enumerated examples of Transaction in the Agreement, as Endeavors purchased a
    substantial portion of Crews shares and Severstals purchases resulted in a
    change of control; and that the definition contained no express requirement
    for the involvement of Crew or RBC in the Transaction.

[35]

As well, RBC says the trial judge ignored the
    fact that, while the other fees under the Agreement are expressly linked to
    services provided by RBC, the Success Fee is payable upon the closing of the
    Transaction. RBC contends that this distinction supports the conclusion that a
    causal link between its services and a Transaction was not necessary for
    entitlement to a Success Fee. RBC also argues that the trial judge disregarded
    the broad definition of Transaction Proceeds, which it says does not exclude
    the sale of Crew shares from qualifying as a Transaction simply on the basis
    that the shares were purchased on a stock exchange.

[36]

All of these arguments were addressed by the
    trial judge at paras. 56 to 61 of his reasons. As the trial judge observed, the
    specific words RBC relied on had to be considered in the context of the
    Agreement as a whole. In rejecting its proposed interpretation, the trial judge
    did not, as RBC alleges, fail to apply proper contract interpretation
    principles; rather, the trial judge applied the principles, just not in the
    manner proposed by RBC.

[37]

The trial judges interpretation of the Success
    Fee requirement as being linked to some action on the part of RBC is a
    reasonable interpretation borne out by a consideration of the Agreement as a
    whole.

[38]

As the trial judge observed, the Success Fee was
    payable in the context of RBCs engagement as a financial advisor to Crew in
    connection with a potential Transaction. The range of services to be provided
    by RBC covered the entire sale process, whatever form that took, and the
    Agreement anticipated RBCs involvement in the Transaction. In exchange for
    these services, RBC was to receive a variety of fees. RBC was unable to provide
    most of the anticipated advisory services because of the intervention of the
    takeover and the way it took place. Indeed, the Agreement was terminated only a
    few months after it had been concluded and, at that point, RBC was only on the
    cusp of providing services with respect to the RBC Alternatives.

[39]

The Transaction was the culmination of RBCs
    financial advisory services, and the provision of a very large Success Fee to
    be paid on completion of the Transaction was presumably meant to reward RBC for
its success
in completing
    the Transaction and implied that there must be a connection between the
    services provided by RBC and the Transaction. Indeed,
all
of the fees payable under the
    Agreement, including the Success Fee, are stated to be for its services
    hereunder. This contemplates a nexus between RBCs services and all of the
    fees payable to RBC under the Agreement, including the Success Fee.

[40]

RBCs approach to interpreting the Agreement is too
    narrow  focusing on the terms Transaction and Transaction Proceeds,
    without considering the nature and substance of the Agreement as a whole. In my
    view, there would have been an extricable error of law if the trial judge had
    adopted the approach advocated by RBC and read the provision[s] of [the]
    contract in isolation rather than construe[d] the contract as a whole:
1298417
    Ontario Ltd. v. Lakeshore (Town)
, 2014 ONCA 802, 122 O.R.
    (3d) 401, at para. 8.

[41]

In addition to the arguments set out above, RBC
    claims that the trial judge ignored the tail provision, which provided that RBC
    would be entitled to a Success Fee even if RBC did not solicit the Transaction
    and where the agreement to effect the Transaction was entered into in the 12-month
    period after the termination of the engagement (in other words, at a time when
    RBC had no obligation to provide Crew with services under the Agreement). RBC
    says the tail provision expressly contemplates that RBC will be paid for a
    Transaction in respect of which it did not provide services, and that the trial
    judge failed to deal with this provision.

[42]

I agree with Crew that, while the trial judge
    might have fleshed out in greater detail his analysis of this provision and its
    impact on the interpretation of the Agreement, he adverted to the wording of
    the tail provision at para. 60 of his reasons, where he stated that a causal
    link was required even though RBC was not required to introduce the successful
    purchaser to the transaction, and even though RBCs involvement was not
    required to be a material cause. As well, his reasons as a whole reject the
    interpretation advanced by RBC. The tail provision simply provides for the
    payment of a Success Fee if a mandate is carried out after the Agreement has been
    terminated. This interpretation of the tail provision is not inconsistent with
    the requirement that the Transaction in respect of which a Success Fee is
    payable relate to work performed by RBC before the Agreement was terminated. Nor
    is this interpretation inconsistent with the evidence of Patrick Meier, relied
    on by RBC, who testified about the commercial purpose of the clause.

[43]

Finally, RBC argues that the trial judge failed
    to recognize and apply the case law holding that a contract may call for
    payment based solely on the occurrence of an event, without the
    service-provider having to demonstrate that it caused or contributed to the
    event. RBC says that the Agreement is similar to that in
Galan v.
    Alenkno
, [1950] O.R. 397 (C.A.) where the plaintiff was
    entitled to a commission on any sale effected during the currency of its
    authority, including sales that occurred without the plaintiffs intervention
    or assistance.

[44]

To the contrary, the trial judge did not dismiss
    out of hand RBCs claim for a Success Fee because RBC had not provided services
    in respect of the transactions that occurred. Rather, he interpreted the
    Agreement to determine whether a Success Fee was payable in such circumstances,
    and concluded that in respect of
this
Agreement, a causal link was required before a Success Fee was
    payable. Similarly, the fact that there are reported cases involving contracts
    that anticipate a fee being paid on the occurrence of an event, without the
    provision of services in respect of the transaction, does not assist: See, for
    example,
Re Hemosol Corp
., 37 C.B.R. (5th)
    128. As RBCs counsel submitted in argument, these cases simply stand for the
    principle that each contract must be interpreted according to its own terms and
    factual context.

(2)

Alleged Reliance on the Parties Subjective
    Intentions and Failure to Consider the Objective Surrounding Circumstances

[45]

In
Dumbrell v. The Regional Group of Companies
    Inc
., 2007 ONCA 59, 85 O.R. (3d) 616, at para. 50,
    Doherty J.A. emphasized that, when interpreting written contracts in the
    context of commercial relationships, it is not helpful to frame the analysis in
    terms of the subjective intention of the parties at the time the contract was
    drawn. The purpose of the interpretation of a contract is not to discover how
    the parties understood the language of the text they adopted, but to determine
    the meaning of the contract against its objective contextual scheme. The focus
    must be on the intent expressed in the written words. The
court must
    consider, among other things, the contract as a whole, the factual matrix
    underlying it, and the need to avoid commercial absurdity. But the court does
    not consider the subjective intention of the parties:
Downey v. Ecore International Inc.
,
2012 ONCA 480
,
294 O.A.C. 200
, at
    paras. 37-38 and
Salah
,
    at para. 16.

[46]

RBC argues that the trial judge based his
    decision that RBC was not entitled to a Success Fee unless there was some
    causal link between its activities and the Transaction, in large part on his
    findings as to the parties subjective intentions, or lack of thereof, and that
    he allowed evidence of subjective intention to overwhelm his interpretation of
    the plain meaning of the Agreement. RBC contends that the trial judge did not
    limit himself to the parties
objective
intentions as expressed in the words of the contract, as required.

[47]

There is no indication in the trial judges reasons
    that he relied on any evidence of the parties subjective intentions in
    interpreting the Agreement. The passages RBC relies on (which appear to be
    every occasion where the trial judge uses the words intention or intended)
    simply do not support this argument. An example is para. 57, where the trial
    judge stated that it was his view that the Agreement
was intended to
speak to the rights and
    obligations of the parties in engaging RBC as Crews financial advisor, and
    that the words in the Agreement
were intended to
describe the services RBC would undertake. The trial judge here was
    doing no more than determining, based on his review of the Agreement, what was
    objectively intended by the Agreement, or the intent expressed in the written
    words. There is no reference to either Crews or RBCs
subjective
intentions.

[48]

Nor is the trial judges description of the
    takeover as not on anyones radar a statement of the parties subjective
    intentions. This was simply a statement of an obvious background fact. The
    parties agreed that the takeover was an unexpected event they had not
    contemplated when they entered into the Agreement. And there is no indication,
    as argued by RBC, that the trial judge dismissed its claim simply because it
    arose from an unanticipated transaction (which RBC contends is an absence of
    subjective intentions). Rather, the trial judge was interpreting the Agreement
    to determine whether the unanticipated transaction was a Transaction that would
    give rise to the payment of a Success Fee under the Agreement.

[49]

Finally, RBC argues that the trial judge erred
    in interpreting the contract by relying on the parties conduct following the
    execution of the contract. RBC points to the trial judges reference to the
    conduct of the parties after learning of GLGs intention to sell its shares in
    Crew at paras. 70 and 71 of his reasons  namely, that RBC attempted to ensure
    that either GLGs shares were sold to a compliant buyer or that a standstill
    agreement would be concluded. RBC contends that this contravened this courts
    caution that evidence of subsequent conduct should be admitted only if the
    contract remains ambiguous after considering its text and its factual matrix:
Shewchuk
    v. Blackmont Capital Inc.
, 2016 ONCA 912, 404 D.L.R. (4th)
    512, at para. 46.

[50]

I disagree that, in interpreting the contract, the
    trial judge relied on the subsequent conduct of the parties. These observations
    were made after he had interpreted the Agreement. They were not part of his
    analysis of the meaning of the Agreement but confirmatory of his conclusions. The
    trial judge specifically stated that this was not part of the classical
    factual matrix and was consonant with [his] conclusion on the intention of
    the parties at the time the Agreement was executed.

[51]

There is simply no merit to this ground of
    appeal. The trial judge did not make findings as to the parties subjective
    intentions in entering the Agreement, nor did he allow evidence of subjective
    intention to oust the plain words of the Agreement, as alleged by RBC.

(3)

Commercial Common Sense

[52]

RBC contends that the trial judge adopted an
    interpretation of the Agreement that was not in accordance with sound
    commercial principles and good business sense:
Kentucky Fried
    Chicken v. Scotts Food Services Inc
. (1998), 41 B.L.R.
    (2d) 42 (Ont. C.A.), at para. 27.
In particular,
RBC
    argues that the trial judge failed to recognize the business reasons for
    allocating risk in contracts by providing for payment based on the occurrence
    of an event rather than services rendered, and that the trial judge failed to
    appreciate that it would be impracticable to require RBC to demonstrate the
    extent to which it caused or contributed to a transaction.

[53]

RBC relies principally on the evidence of its witness, Patrick
    Meier, RBCs lead investment banker on the Crew mandate, who provided an
    explanation of the commercial purposes for transaction-based fees in investment
    banking contracts. In
Kentucky Fried Chicken
,

however, this court cautioned that the construction of contracts in
    accordance with sound commercial principles and good business sense must be
    done objectively rather than from the perspective of the contracting parties.
    Further, Mr. Meiers evidence did not fully support RBCs interpretation. He
    acknowledged under cross-examination that some connection to the services provided
    would be required before a Success Fee would be payable.

[54]

Simply because the trial judge did not analyze
    the parties arguments on this point under a separate heading does not mean
    that he ignored the commercial realities in interpreting the Agreement. Considerations
    of commercial reasonableness permeate his reasons. The objective evidence of
    the circumstances or factual matrix in this case was that both parties had a
    plan to embark on a sale process, which they were unable to complete because of
    the unanticipated takeover. The trial judge made a specific finding on the
    evidence that was available to him (and which has not been argued or demonstrated
    to be a palpable and overriding error) that the parties anticipated a sale
    process. The expectation was that RBC would have provided services in
    connection to the process culminating in the closing of a Transaction to
    warrant payment of a Success Fee.

[55]

I agree with Crew that the interpretation
    adopted by the trial judge was not commercially unreasonable and made
    commercial sense. Although the words of the Agreement might bear the
    interpretation RBC proposes, the interpretation advocated by RBC would have resulted
    in a significant windfall, with RBC receiving a very large Success Fee where
    there was no association between any services it provided Crew and the transactions,
    and where Crew was not in a position to avail itself of RBCs services.

[56]

RBC also argues that the trial judge failed to
    recognize the commercial sense in the allocation of risk in contracts that call
    for payment upon the occurrence of an event, such as in the real estate
    context. I agree with Crew that the commercial context here is very different
    from an exclusive listing agreement in the real estate agency context. Here, the
    Crew Board retained RBC to assist the company in pursuing specific strategic
    alternatives to maximize shareholder value. In my view, the requirement to pay
    the significant fee claimed by RBC in respect of the transactions that occurred,
    which did not relate in any way to RBCs financial services would be
    commercially unreasonable.

VII.

Conclusion and Disposition

[57]

For these reasons I would dismiss the appeal. I
    would award Crew its costs fixed at $40,000, inclusive of HST and
    disbursements.

K. van Rensburg J.A.

I agree K.M. Weiler
    J.A.

I agree Grant Huscroft
    J.A.

Released: August 10, 2017


COURT OF APPEAL FOR ONTARIO

CITATION: Waterstone Properties Corporation v. Caledon
    (Town),

2017 ONCA 623

DATE: 20170801

DOCKET: C62685 and C62686

Hourigan, Benotto and Roberts JJ.A.

BETWEEN

Waterstone Properties Corporation and Wyndcliffe
Developments Inc.

Applicants
(Appellants)

and

The Corporation of the Town of Caledon

Respondent
(Respondent on Appeal)

and

BETWEEN

The Corporation of the Town of Caledon

Applicant
(Respondent on Appeal)

and

Waterstone Properties Corporation and Wyndcliffe
Developments Inc.

Respondents
(Appellants on Appeal)

Milton A. Davis and Ronald D. Davis, for the appellants

Signe Leisk and Michael Mahoney, for the respondent

Heard: May 24, 2017

On appeal from the orders of Justice Robert F. Goldstein
    of the Superior Court of Justice, dated August 26, 2016, with reasons reported
    at
2016 ONSC 5394
.

Roberts J.A.:

A.

Overview

[1]

The
    appellants appeal from the dismissal of their application and the granting of
    the respondents application for a declaration that the respondent is the
    beneficial and legal owner of a 2.8-acre park known as the Kingsview Parkette
    (the Parkette), which is located in the Town of Caledon (the Town).

[2]

The appellant,
Waterstone Properties
    Corporation (Waterstone), and its predecessors in title are related companies,
    and held paper title to the Parkette.  They are in the business of land
    development.  In 1972 and again in 1973, members of this group of companies
    entered into subdivision agreements with the Town.  Among other terms, the
    subdivision agreements provided that the Parkette would be deeded to the Town
    for use as a park.

[3]

While
    the Parkette was never formally transferred to or registered on title in the
    Towns name, there is no dispute that, since 1974, the Town has had possession
    of the Parkette and that, since 1977 or 1979, the Town has used and operated
    the Parkette as a public park.

[4]

In
    1995, the original owner of the Parkette, Sorrento Limited Partnership
    (Sorrento), another related company, demanded that the Town return the
    Parkette and release any claim that it had to it.  Sorrento relied on the
    re-conveyance provisions under the 1972 subdivision agreement.  The Town
    refused to do so, maintaining that the 1973 subdivision agreement superseded
    the 1972 subdivision agreement.

[5]

On
    March 26, 1999, the Parkette was administratively converted into the Land
    Titles system in the name of Great Georgian Realty Group (Great Georgian) as
    owner.

[6]

On May
    7, 2013, the Parkette was transferred into the name of the appellant, Waterstone.

[7]

On
    September 17, 2014, in an attempt to resolve the matter, the Town offered to
    purchase the Parkette.  The Town subsequently changed its position.  On May 8,
    2015, the Town asserted outright ownership of the Parkette and demanded a deed
    for nil consideration.

[8]

The
    appellants and the Town then commenced separate applications, each seeking a
    declaration of ownership of the Parkette.

[9]

The
    application judge dismissed the appellants application, declared the Town the
    legal and beneficial owner of the Parkette, and made an order directing the Land
    Registrar to correct the parcel register to reflect the Towns ownership, on
    the following bases:

i.

the 1973 subdivision agreement superseded the
    1972 subdivision agreement with respect to the conveyance of the Parkette; and
    the inclusion of the conveyance of the Parkette in the 1973 subdivision
    agreement was not a mistake;

ii.

the 1973 subdivision agreement created a
    constructive trust in favour of the Town as beneficial owner of the Parkette;

iii.

the administrative transfer of the Parkette into
    the Land Titles system in 1999 did not extinguish the Towns beneficial
    ownership of the Parkette;

iv.

in the alternative, the Town had acquired
    ownership of the Parkette by application of the doctrines of adverse possession
    and dedication and acceptance.

B.

Issues

[10]

The appellants have raised
    numerous grounds of appeal.  However, for the purpose of disposing of this
    appeal, it is necessary to consider only the following:

1.
Did the application judge err in determining that the 1973 subdivision
    agreement superseded the 1972 subdivision agreement with respect to the provisions
    governing the conveyance of the Parkette to the Town, including that the conveyance
    of the Parkette in the 1973 subdivision agreement was not a mistake?

2.
Did the administrative transfer of the Parkette into the Land
    Titles system in 1999 extinguish the Towns beneficial ownership of the
    Parkette?

3.  Is any claim that the Town may have to the
    Parkette statute-barred under ss. 4 or 5 of the
Real Property
    Limitations Act
?

4.  Did the application judge err in determining
    that the Parkette was conveyed to the Town in accordance with the doctrine of
    dedication and acceptance?

[11]

For the reasons that
    follow, I am of the view that the application judge did not err in his
    determination of the above issues, and I would dismiss the appeal.

C.

Analysis

(1)

Did the 1973
    subdivision agreement supersede the 1972 subdivision agreement with respect to
    the Parkette?

[12]

In 1972, Sorrento and
    other related companies entered into a subdivision agreement with the Town with
    respect to land located in Plans 870, 887 and 930.  Schedule F of the 1972 subdivision
    agreement provided that the Parkette would be conveyed to the Town for use as
    parkland.  Under the 1972 subdivision agreement, the Town could be required to
    re-convey the Parkette if the following circumstances were met:  land to the
    north of the Parkette was developed; and another area of parkland was deeded to
    the Town.

[13]

The 1972 subdivision agreement
    was registered on the parcels of land to be developed in Plans 870, 887 and
    930, but not on the Parkette, which is located in Plan 990.  There is no
    dispute that the subdivision, which was the subject of the 1972 subdivision
    agreement, was developed but that title for the Parkette was not conveyed to
    the Town.

[14]

In March 1973, Sorrento
    transferred the land in Plan 990 to Great Georgian, a partnership that included
    Sorrento.  Subsequent to this transfer, in December 1973, Great Georgian
    entered into a subdivision agreement with the Town with respect to land
    situated in Plans 994 and 990.  The 1973 subdivision agreement also provided
    for the conveyance of the Parkette to the Town.  However, the agreement did not
    provide that the Town could be required to re-convey the Parkette.  The 1973
    subdivision agreement was registered on the title to the parcels of land to be
    developed in Plans 994 and 990, including the Parkette.

[15]

The appellants acknowledge
    the contradiction between the 1972 and 1973 subdivision agreements regarding
    the terms about the conveyance of the Parkette.  They submit that the inclusion
    of the Parkette in the lands to be conveyed to the Town in the 1973 subdivision
    agreement was a mistake.  According to the appellants, the application judge
    erred in failing to find that the 1972 subdivision agreement should prevail
    over the 1973 subdivision agreement.  They argue that the 1972 re-conveyance
    provisions in relation to the Parkette are still in force and can be invoked by
    the appellants to require the Town to re-convey the Parkette.

[16]

I disagree.

[17]

The application judge held
    that the 1972 and 1973 subdivision agreements were clear and unambiguous.  In
    particular, he found that the 1973 subdivision agreement plainly did not
    include a re-conveyance provision, which was not in dispute.  He rejected the
    appellants submission and evidence that the inclusion of the Parkette in the
    1973 agreement was an error.  These conclusions were open to him on the evidentiary
    record before him.

[18]

The application judges
    interpretation of the meaning of the 1972 and 1973 subdivision agreements is
    subject to deference; absent extricable error, this court cannot intervene:
Sattva Capital Corp. v. Creston Moly
    Corp.
,
2014 SCC 53
, [2014]
    2 S.C.R. 633, at paras. 50-55.  I see no error and therefore no basis to
    interfere with the application judges interpretation of the subdivision
    agreements.

[19]

Accordingly, I would
    dismiss this ground of appeal.

(2)

Did the administrative conveyance of the
    Parkette into Land Titles extinguish the Towns equitable interest?

[20]

That the 1973 subdivision agreement
    prevails with respect to the conveyance of the Parkette to the Town also disposes
    of the appellants argument that the administrative conveyance of the Parkette
    into Land Titles extinguished the Towns interest in the Parkette.  The
    appellants arguments depend on the enforceability of the re-conveyance clause
    under the 1972 subdivision agreement, which the application judge determined
    was superseded by the terms of the 1973 subdivision agreement.  By virtue of those
    conveyance provisions, the Town acquired a beneficial interest in the Parkette
    of which the appellants had actual notice.

[21]

Under the 1973 subdivision agreement,
    title to the Parkette should have been transferred to the Town:  the Town had
    performed everything it was required to do under the agreement and the
    agreement was fully implemented.  Indeed, there is no dispute that Sorrento
    delivered the deed to the Parkette to the Town in December 1973. That the deed
    was subsequently lost and title was mistakenly not registered in the Towns
    name does not affect the Towns equitable interest in the Parkette.

[22]

The appellants argue that
    the administrative conveyance of the Parkette into Land Titles extinguished any
    interest that the Town may have had in the Parkette.  The difficulty with the
    appellants argument is that it ignores the uncontroverted fact that they and
    their predecessors in title had actual notice of the Towns equitable interest
    in the Parkette.

[23]

It is well-established that the
Land Titles Act
has not abolished the equitable
    doctrine of actual notice.

[24]

In rejecting the argument that the
Land Titles Act
in Ontario abrogated the principle
    of actual notice, Spence J. in
United Trust Co. v. Dominion Stores Ltd. et al
, [1977] 2 S.C.R. 915, at p. 952,
    stated for the majority:

However, in Ontario, only a few years after the enactment of
    the
Land Titles Act
, the courts have expressed a disinclination to
    imply such an extinction of the doctrine of actual notice. There is no doubt
    that such doctrine as to all contractual relations and particularly the law of
    real property has been firmly based in our laws since the beginning of equity.
    It was the view of those courts, and it is my view, that such a cardinal
    principle of property law cannot be considered to have been abrogated unless
    the legislative enactment is in the clearest and most unequivocal of terms.

[25]

It is thus clear that in Ontario the
    doctrine of actual notice is applicable even if the lands in question are in
    the Land Titles system.

[26]

In consequence, as a result of their having
    actual notice, notwithstanding that the appellants subsequently disputed the
    Towns interest, the administrative conveyance of the Parkette into the Land
    Titles system was subject to the Towns interest:
United Trust v. Dominion Stores et al
.

[27]

Accordingly, I would dismiss this
    ground of appeal.

(3)

Is any claim that the
    Town may have to the Parkette statute-barred under ss. 4 or 5 of the
Real Property Limitations Act
?

[28]

The appellants submit that
    any claim under the 1973 subdivision agreement, or any other claim that the
    Town may have had in relation to the Parkette, was extinguished well before the
    Town commenced its present application in 2015.  Specifically, the appellants
    argue that the Towns claim was subject to the ten-year limitation period under
    s. 4 of the
Real
    Property Limitations Act
, R.S.O. 1990, c. L.15 (
RPLA
).

[29]

According to the
    appellants submissions, the limitation period with respect to the Towns claim
    began to run, at the earliest, shortly after the completion of the 1973
    subdivision agreement, when the Town should have realized that the Parkette had
    not been conveyed to it, or, at the latest, in 1995, when Sorrento demanded
    re-conveyance of and asserted ownership over the Parkette.  As a result, the
    Towns claim is statute-barred.
[1]

[30]

For the reasons that
    follow, I would reject this ground of appeal.

[31]

I agree that the Towns claim
    to the Parkette is subject to the ten-year limitation period under s. 4 of the
RPLA
.  Section 4 creates a ten-year
    limitation period for an action to recover land.  It provides as follows:

No person shall
make an entry or distress, or
bring an action to recover any land
or
    rent,
but within ten years next after the time at which the right
to
    make such entry or distress, or
to bring such action, first accrued
to
    some person through whom the person making or bringing it claims, or if the
    right did not accrue to any person through whom that person claims, then within
    ten years next after the time at which the right to make such entry or
    distress, or to bring such action, first accrued
to the person making or
    bringing it
.  [Emphasis added.]

[32]

The words action to
    recover any land in s. 4 of the
RPLA

are not limited to claims for possession of land or to
    regain something a plaintiff has lost.  Rather, to recover any land means
    simply to obtain any land by judgment of the Court and thus these words also
    encompass claims for a declaration in respect of land and claims to the
    ownership of land advanced by way of resulting or constructive trust:
Hartman Estate v. Hartfam Holdings
    Ltd.
,
    [2006] O.J. No. 69, at para. 56;
McConnell v. Huxtable
, 2014 ONCA 86, 118 O.R. (3d) 561, at
    paras. 38-39.

[33]

However, I am not
    persuaded that the ten-year limitation period applicable to the Towns claim to
    the Parkette ever started to run, as provided for under s. 5(1) of the
RPLA
.  Section 5(1) reads as follows:

5(1)
Where the person claiming such land
or rent, or some person through whom that person claims,
has, in respect of
    the estate or interest claimed, been in possession
or in receipt of the
    profits
of the land
, or in respect of the rent,
and has, while
    entitled thereto, been dispossessed, or has discontinued such possession
or
    receipt,
the right to
make an entry or distress or
bring an action to
    recover the land shall be deemed to have first accrued at the time of the
    dispossession or discontinuance of possession
, or at the last time at which
    any such profits or rents were so received.   [Emphasis added.]

[34]

Under s. 5(1) of the
RPLA
, possession can operate to postpone
    the commencement of the limitation period:  if the claimant has been in
    possession of the land, s. 5(1) postpones the commencement of the limitation
    period to the time of dispossession or discontinuance:
Hartman
, at para. 34.  Here, there is no
    evidence that the Town was ever dispossessed or discontinued in its possession
    of the Parkette.

[35]

On the contrary, it is
    common ground that the Town has been in continuous physical possession of the
    Parkette since 1974.  Although there was evidence of various discussions
    between the Town and the appellants concerning their respective claims of ownership,
    the Town never returned possession of the Parkette to the appellants.  Indeed,
    the Towns refusal to do so prompted the commencement of Sorrentos application
    in 1997 and then ultimately culminated in the present proceedings.

[36]

The appellants submit that
    s. 5(1) of the
RPLA

has no application
    to the present case because the conditions precedent contained in that
    provision are not met.  Specifically, they submit, the Town was never in
    possession of the Parkette while entitled thereto or at all because the Town
    had no right to possession other than with the appellants consent.

[37]

I disagree.  The
    appellants argument again rests on the operation of the re-conveyance clause
    under the 1972 subdivision agreement.  For the reasons already stated, I agree with
    the application judges conclusion that the unconditional conveyance of the
    Parkette to the Town under the 1973 subdivision agreement supersedes the
    re-conveyance clause under the 1972 subdivision agreement.  There is no dispute
    that the 1973 subdivision agreement was implemented.  As a result, as
    beneficial owner, the Town has been and remains entitled to possession of the
    Parkette.  Further, as explained above, the Towns possession of the Parkette has
    not been interfered with or discontinued.

[38]

Accordingly, the Towns
    claim to the Parkette is not statute-barred.

(4)

Does the doctrine of
    dedication and acceptance apply?

[39]

As an alternative
    conclusion, the application judge determined that the Town is entitled to
    ownership of the Parkette by application of the doctrine of dedication and
    acceptance.  In particular, the application judge found that the Parkette had
    been dedicated by its owners, and accepted and developed by the Town, for
    public use as a park.

[40]

The appellants do not
    dispute that, for almost 40 years, the public has been using the Parkette as a
    park with no interference or obstruction.  However, the appellants submit that
    the application judge erred in determining that the doctrine of dedication and
    acceptance applies because of the re-conveyance provision of the 1972
    agreement.  They argue that this provision establishes that there was no
    intention to dedicate the Parkette as a public park.

[41]

I would reject this
    submission.

[42]

For the reasons already
    noted, I would uphold the application judges determination that the 1973
    agreement superseded the 1972 agreement in relation to the conveyance of the
    Parkette.

[43]

The appellants concede, in
    para. 128 of their factum, that if the 1972 agreement does not apply, the 1973
    agreement could be read to show an intention to dedicate the Parkette to the
    Town.

[44]

I agree.

[45]

In paragraphs 95 to 99 of
    his reasons, the application judge correctly cites the leading authorities on
    the doctrine of dedication and acceptance with respect to public recreational
    land.  He properly sets out the two criteria that must be shown in order for
    the doctrine to apply, namely, that there was an actual intention to dedicate
    the land by the owner; and, that it must appear that the intention was carried
    out in that the land was open to the public for use, and the public accepted
    it:  see
Gibbs v.
    Grand Bend (Village)
(1995), 26 O.R. (3d) 644 (C.A.);
Wright v. Long Branch (Village)
, [1959] S.C.R. 418,
    citing with approval at p. 423,
Re Lorne Park Road
(1914), 33 O.L.R. 51 (C.A.).

[46]

In his reasons, the
    application judge made numerous findings of fact supporting his conclusion
    that, despite the Parkette never having been deeded to the Town, Waterstones
    predecessors had dedicated the Parkette as parkland for public use.   These
    findings include: neither Sorrento nor Great Georgian objected to the land
    being zoned for recreational purposes; Great Georgian registered the plan of
    subdivision for Plan 990 on title showing the Parkette as parkland; and neither
    Great Georgian nor Sorrento nor any other successor in title asserted a right
    to the Parkette until at least 1995.

[47]

The application judge
    found that nearly four decades of public use of the Parkette as a park
    constituted acceptance by the public.  Since 1977, the Town has consistently been
    responsible for maintaining the land as a park available for public use, for
    instance, by the installation of playground equipment that the application
    judge found was clearly listed in the park inventory.  The record also suggests
    the owner paid no taxes on the property for these decades, save for in 2013 and
    2014 as a result of assessments that the Town indicates arose automatically
    from the 2013 transfer of title to Waterstone.  Taken together, these facts distinguish
    this case from this courts decision in
Cooks Road Maintenance Assn. v. Crowhill Estates
(2001), 196 D.L.R. (4th)
    35 (Ont. C.A.).

[48]

Citing the reasons of
    Brooke J.A. in
Gibbs
, at p. 680, the
    application judge observed that [o]pen and unobstructed use by the public for
    a substantial period of time is, as a rule, the evidence from which a trier of
    fact may infer both dedication and acceptance and that [o]nce a dedication is
    complete, neither the owners nor their successors in title could revoke it. See
    also
Lehtiniemi v.
    Mattawan (Municipality)
, 2016 ONCA 940, [2016] O.J. No. 6473, at para. 19.

[49]

These findings were open
    to the application judge on the record before him.  I see no error in the
    application judges conclusion that the doctrine of dedication and acceptance
    applies and that the Town is therefore entitled to ownership of the Parkette.

(5)

Other issues

[50]

Given my proposed
    disposition of the above issues, it is not necessary to deal with the other
    grounds of appeal.

D.

Disposition

[51]

Accordingly, I would
    dismiss the appeal.

[52]

As agreed, the respondent,
    as the successful party on appeal, is entitled to costs in the amount of $42,000,
    inclusive of disbursements and HST.

Released: August 1, 2017

L.B. Roberts J.A.

I agree C.W. Hourigan J.A.

I agree M.L. Benotto J.A.

[1]
It does not appear that this specific argument was ever advanced before the
    application judge.  Rather, as indicated in the application judges reasons,
    the limitation period argument was limited to the issue of adverse possession.
    Ordinarily, this court would not entertain an argument raised for the first
    time on appeal.  However, the respondent Town made no objection to it and
    provided a response.  Moreover, although minimal, there is a sufficient
    evidentiary foundation to allow this court to dispose of this ground of appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: Westmount-Keele Limited v. Royal Host Hotels and
    Resorts Real Estate Investment Trust, 2017 ONCA 673

DATE: 20170828

DOCKET: C63494

Laskin, Juriansz and Miller JJ.A.

BETWEEN

Westmount-Keele Limited

Plaintiff

(Appellant)

and

Royal Host Hotels and Resorts Real Estate
    Investment Trust and

North York (Keele St.) Purchaseco. Inc.

Defendants

(Respondents)

Kris Borg-Olivier, for the plaintiff (appellant)

Jason Woycheshyn and Gannon Beaulne, for the defendants
    (respondents)

Heard: August 25, 2017

On appeal from the judgment of Justice Sidney Lederman of
    the Superior Court of Justice, dated February 8, 2017.

APPEAL BOOK ENDORSEMENT

[1]

Westmount makes two submissions. Its first submission is that the motion
    judge erred in granting an amendment to the statement of defence to permit the
    defendants to plead a limitation defence. In our view the order granting the amendment
    is an interlocutory order and therefore this court has no jurisdiction to hear
    the appeal from that order.

[2]

Westmounts second submission is that the motion judge erred in granting
    summary judgment dismissing its claim for economic damages. Westmount contends
    that the motion judge erred by failing to consider whether the respondents
    breach of its obligation to properly quantify its post-closing costs could
    reasonably be foreseen to have impeded Westmounts ability to obtain financing
    for phase II of the development. Westmount says that because of the
    respondents breach the vendor take-back remained on title and the respondent
    could reasonably have contemplated that the phase II development would have
    failed for lack of financing.

[3]

We do not accept this submission.

[4]

The motion judge affectively addressed Westmounts submission at para.
    65 and 67 of his reasons. The relevant record, much of which is in the respondents
    extract book, supports the motion judges analysis and conclusion.

[5]

The appeal is dismissed with costs of $20,000 all in.