



COURT OF APPEAL FOR ONTARIO

CITATION:
Camsal Inc. v. Penner International Inc., 2022 ONCA 20

DATE: 20220113

DOCKET: C69252

Huscroft, Trotter and Coroza
    JJ.A.

BETWEEN

Camsal Inc.

Applicant (Respondent)

and

Penner International Inc.

Respondent (Appellant)

Michael McWilliams and Tamara Watson,
    for the appellant

Jordan Diacur and Michael Bordin, for
    the respondent

Michael Beeforth, for the interveners 213748
    Ontario Inc. o/a Peace Transportation, 2232665 Ontario Inc. o/a DAlliance
    Motors and Roadish Transport Inc.

Heard: January 11, 2022 by
    video conference

On appeal from the order of Justice Antonio
    Skarica of the Superior Court of Justice, dated February 24, 2021.

REASONS FOR DECISION

[1]

The appellant argues that the application judge
    erred in finding that the respondent was free to sell the property in question
    to a third party despite the right of first refusal the appellant had pursuant
    to the terms of its lease of that property. The appellant argues, further, that
    the application judge erred by implying a term into the right of first refusal
    limiting it to a single use.

[2]

We disagree.

[3]

We see no extricable error in the application
    judges analysis. Thus, in the absence of a palpable and overriding error, his
    interpretation of the lease is entitled to deference:
Sattva Capital Corp.
    v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633. The appellant has
    failed to establish any such error.

[4]

By its terms, the right of first refusal
    permitted the appellant to submit an offer to purchase the property upon the
    same terms and conditions as any offer received by the respondent. The
    application judge found that the respondent duly informed the appellant of the
    offer it had received from the interveners. The appellant then submitted an
    offer to purchase on identical terms, including a buyers financing condition,
    which gave the appellant 30 days to obtain suitable financing. Twenty-nine days
    later, the appellant sought a two-month extension of the buyers condition. The
    respondent refused. The appellant then advised the respondent that it would not
    be waiving the condition and requested the return of its deposit. Consequently,
    the agreement of purchase and sale expired in accordance with its terms.

[5]

The application judge applied the proper
    interpretive principles and read the contract as a whole. The application judge
    did not imply any terms into the right of first refusal. He interpreted the
    right of first refusal as being exercisable only once. This interpretation is
    commercially reasonable and there is no basis for this court to interfere with
    it. Whether the appellant had notice of the subsequent unconditional agreement
    of purchase and sale entered into by the respondent is irrelevant, as the right
    of first refusal was already spent.

[6]

The appeal is dismissed. The respondent is
    entitled to costs in the agreed amount of $16,000, all inclusive. No costs
    order is made concerning the interveners.

Grant
    Huscroft J.A.

Gary Trotter
    J.A.

S.
    Coroza J.A.


