



COURT OF APPEAL FOR ONTARIO

CITATION: Siskinds LLP
    v. Canadian Imperial Bank of Commerce, 2015 ONCA 265

DATE: 20150417

DOCKET: C58998

Hoy A.C.J.O., Cronk and Watt JJ.A.

BETWEEN

Siskinds LLP

Plaintiff (Appellant)

and

Canadian Imperial Bank of Commerce

Defendant (Respondent)

Earl A. Cherniak and Jason Squire, for the plaintiff (appellant)

Paul H. Le Vay and Justin Safayeni, for the defendant (respondent)

Heard: April 13, 2015

On appeal from the judgment of Justice D. M. Brown of the
    Superior Court of Justice, dated May 28, 2014.

ENDORSEMENT

[1]

The appellant, Siskinds LLP, performed collection work on behalf of the
    respondent, Canadian Imperial Bank of Commerce, under the terms of a written
    agreement. The respondent terminated the agreement. The parties disagreed about
    the interpretation of a provision in the agreement providing that upon
    termination, the appellant could invoice the respondent for Services performed
    up to the date of termination of the Agreement. The motion judge agreed with
    the interpretation advanced by the respondent and dismissed the appellants
    motion for partial summary judgment, granted the respondents cross-motion for
    summary judgment, and dismissed the appellants action.

[2]

The appellant argues that the motion judge committed reviewable error in
    interpreting the agreement.

[3]

We disagree.

[4]

In essence, the appellant simply disagrees with the motion judges
    interpretation and invites this court to adopt a different one.  Deference is
    owed to the motion judges interpretation of the agreement:
Sattva Capital
    Corp. v. Creston Moly Corp.
, 2014 SCC 53 (CanLII), at para. 52.  The
    motion judge made no palpable and overriding error. The key facts were not in
    dispute. The motion judge considered and applied properly the applicable
    principles of contract interpretation as well as the factors relevant to the
    application of those principles to the provision at issue.

[5]

Nor has the appellant identified any extricable question of law in the
    motion judges analysis. The appellant submits, for example, that the motion
    judge erred in law by regarding the characteristics of [the] work/commission
    payment profile between the parties as irrelevant to the interpretation of
    the contractual provision at issue.

[6]

Again, we disagree.

[7]

The motion judges impugned comment must be read in context. When the
    entirety of his reasons are considered, as they must be, it is apparent that
    the motion judge appreciated and took account of the nature of the commission
    arrangement between the parties, the timing of the work performed referable to
    the timing of debt recoveries, and the basis of the historical billing
    arrangement between the parties. As we read his reasons, having considered
    these factors, the motion judge simply concluded that they were not controlling
    of the meaning to be accorded to the words used by the parties in the
    agreement. We see no error of law in this conclusion.

[8]

At the end of the day, the motion judge was faced with competing
    interpretations of the disputed contractual provision. He rejected the
    interpretation urged by the appellant for clear and cogent reasons. He held,
    among other matters, that the appellants proposed interpretation would require
    a radical change in the methodology for calculating [the appellants]
    compensation that was nether specified in or contemplated by the agreement.
    Nor was it consistent with the language of the provision as a whole or the
    historical commission structure and pattern of dealings between the parties. We
    agree.

[9]

Finally, we are not persuaded that
Bhasin v. Hrynew
, 2014 SCC
    71, [2014] 3 SCR 495, which was decided after the motion judge released his
    judgment and recognized a general duty of honesty in contractual performance, assists
    the appellant.
Bhasin
does not affect the interpretation of the
    provision at issue.

[10]

In
    these circumstances, there is no basis to interfere with the motion judges
    carefully reasoned judgment.

[11]

The
    appeal is dismissed. The respondent is entitled to its costs of the appeal, in
    the agreed amount of $20,000, inclusive of disbursements and HST.

Alexandra
    Hoy A.C.J.O.

E.A. Cronk J.A.

David Watt J.A.


