





CITATION:
Canadian Tire
          Corporation Limited v. Concord
Adex
Investments Limited, 2011 ONCA 354



DATE: 20110509



DOCKET: C53177



COURT OF APPEAL FOR ONTARIO



Rosenberg, Simmons and Blair JJ.A.



BETWEEN



Canadian Tire
          Corporation Limited



Applicant/Appellant



and



Concord Adex
          Investments Limited, Concord Discovery Limited Partnership,
          Concord North York Limited Partnership, Concord North York
          Limited, The Crestmark Developments Limited
          Partnership and The Crestmark Developments Limited




Respondents/Respondents



Michael R. Kestenberg, for the appellant



Michael T.
Tamblyn
and Anthony
Scane
, for the respondents



Heard:
May 2, 2011



On appeal from the judgment of Justice John R. R. Jennings of
          the Superior Court of Justice dated December 21, 2010.



ENDORSEMENT



[1]

The appellant appeals from a
    judgment dismissing its request for rectification  based on mutual mistake 
    of a definition contained in an Agreement of Purchase and Sale under which the
    appellant was the vendor and the respondents were purchasers.

[2]

Under the terms of the Agreement
    of Purchase and Sale, in the event the Gross Floor Area (GFA) of the
    purchased lands was subsequently increased by by-law beyond the GFA of the
    purchased lands as of the execution date of the Agreement of Purchase and Sale,
    the respondent agreed to pay the appellant additional consideration for the
    purchase of the lands.
[1]


[3]

GFA is defined in the Agreement
    of Purchase and Sale as having the meaning ascribed to the terms residential
    gross floor area and non-residential gross floor area as applicable in [City
    of Toronto] By-law No. 438/86, as amended to the date of this Agreement.

[4]

Despite this definition of GFA, it
    is undisputed that the numeric references in the Agreement of Purchase and Sale
    to the GFA as of its date of execution were the same as the numeric references
    to the maximum GFA in a site specific by-law pertaining to the lands  and that
    those numbers were calculated using the definition of Floor Area, Gross in a
    predecessor North York By-law.

[5]

The application judge dismissed
    the appellants request to rectify the definition of GFA as set out in the Agreement
    of Purchase and Sale to correspond with the definition in the site specific
    By-law because he found that although agreeing on the base square footage that
    was said to be calculated under the site specific By-law, [the parties]
    intended to provide for variation under the definition in the By-law contained
    in the contract.

[6]

The appellant contends that the
    trial judge erred in this finding and asks that we grant its application for
    rectification.

[7]

In our view, this is not a case
    for rectification.  Even if the trial
    judge erred in finding that it was the
appellants
intention that GFA be defined by reference to City of Toronto By-law 438/86,
    there was compelling evidence to support his finding that it was the
respondents
intention that the City of
    Toronto By-law definition be used to determine whether there was an increase in
    GFA beyond the
specified GFA as of the date of execution
    of the agreement of purchase and sale.  Counsel for the respondent made the respondents intention clear in a
    meeting at which the definition of GFA was discussed.  Rectification based on mutual mistake is not
    available in these circumstances.


[8]

The fact that the respondents may have mistakenly believed
    that the GFA specified as of the date of execution of the agreement of purchase
    and sale was calculated using the City of Toronto By-law does not alter this
    result. They agreed to a price adjustment premised on using the City of Toronto
    By-law definition of gross floor area.

[9]

The appeal is therefore dismissed
    with costs fixed in the amount of $31,000 inclusive of all applicable taxes, as
    agreed by the parties.

M. Rosenberg J.A.

Janet Simmons J.A.

R.A. Blair J.A.






[1]


This
    agreement was carried forward into the terms of a free-standing agreement
    signed on the date of closing.


