



COURT OF APPEAL FOR ONTARIO

CITATION: Raki Holdings Inc. v. Lionheart
    Enterprises Inc., 2019 ONCA 786

DATE: 20191002

DOCKET: C66178

Sharpe, Hourigan and Jamal JJ.A.

BETWEEN

Raki
    Holdings Inc.

Applicant
(Respondent)

and

Lionheart Enterprises Inc. and
    583753 Ontario Inc.

Respondents
(Appellants)

James M. Wortzman and Karey A. Dhirani,
    for the appellants

Neil G. Wilson and Wei Jiang, for the
    respondents

Heard and released orally: September 30, 2019

On
    appeal from the judgment of Justice Gregory M. Mulligan of the Superior Court
    of Justice, dated October 26, 2018.

REASONS FOR DECISION

[1]

The sole issue on this appeal is whether the
    application judge erred in interpreting the following clause in two agreements
    between the appellant as vendor and the respondents as purchasers of
    development lands:

(c) Net Developable Area refers to the Gross
    Area of the property less those lands designated by the Town, the Region or the
    Toronto and Region Conservation Authority as: Environmental Protection Area 1
    lands, Environmental Protection Area 2 lands, Buffer Areas, Zones of Influence,
    Ecological Corridors and Linkages, including but not limited to valley lands,
    wetlands, woodlots, open space lands
(save and except tableland used for
    storm water management ponds)
and Ecological Restoration Areas, Natural
    Heritage System as defined by Minister of Natural Resources and/or the Toronto
    and Region Conservation Authority, Protected Countryside as set out in the
    Greenbelt Plan (as established by the Province of Ontario) which is currently
    estimated to be 59.90 acres. [Emphasis added.]

[2]

The issue is whether the words in parenthesis
    that have the effect of including table land used for storm water management
    ponds in the definition of Net Developable Area apply to lands defined as Protected
    Countryside as set out in the Greenbelt Plan.

[3]

The application judge held that they did not,
    and we see no error in his finding. We agree with the submission of the
    respondent that to achieve the interpretation sought by the appellant it would
    be necessary to rewrite the agreement between the parties and move the words in
    parenthesis from where they are to end of the clause.

[4]

The central point made by appellant before us is
    that the Greenbelt lands were designated as open space lands by the town and
    that they therefore fall within the exception. We do not accept that
    submission.

[5]

The terms open space lands and Greenbelt
    lands have distinct meanings and are subject to different planning controls. At
    the time of closing, the Greenbelt lands had not been designated as open space
    lands. Moreover, the parties were aware that it might be possible to put the
    storm water management ponds on the Greenbelt lands. The exception in the
    agreement did not apply to the Greenbelt Plans at the time of closing and that
    did not change when the town subsequently designated the lands as open space.

[6]

Accordingly, the appeal is dismissed. In
    accordance with the agreement between the parties, costs payable by the
    appellants to the respondents fixed at $35,000, inclusive of disbursements and
    taxes.

Robert J. Sharpe J.A.

C.W. Hourigan J.A.

M. Jamal J.A.


