



COURT OF APPEAL
    FOR ONTARIO

CITATION: Shaun Developments Inc. v. Shamsipour, 2018 ONCA
    707

DATE: 20180829

DOCKET: C65010

Lauwers, Miller and Nordheimer JJ.A.

BETWEEN

Shaun Developments Inc.

Plaintiff (Respondent)

and

Ali Reza Shamsipour,
    Mohsen Zadegan and Mansour Shamsipour

Defendants (Appellants)

David Taub and Ellad Gersh, for the appellants

Michael Kestenberg and Thomas Slahta, for the respondent

Heard: August 27, 2018

On appeal from the judgment of Justice Peter Cavanagh of
    the Superior Court of Justice, dated January 18, 2018, with reasons reported at
    2018 ONSC 440.

REASONS FOR DECISION

[1]

The defendants appeal from the judgment of the motion judge who dismissed
    the defendants motion for summary judgment to dismiss the plaintiffs action but
    granted the plaintiffs motion for summary judgment for a declaration that
    three agreements of purchase and sale between the parties were valid and
    enforceable. At the conclusion of the hearing, we dismissed the appeal with
    reasons to follow. We now provide those reasons.

[2]

This case concerns three inter-connected agreements of purchase and sale
    (the Agreements), that were made between the respondent, as purchaser, and
    one of each of the appellants, as vendors, in respect of three contiguous properties,
    all located in the City of Toronto.

[3]

The Agreements were conditional upon the respondent receiving in writing
    the "final, unappealable and official Order" made by the Ontario
    Municipal Board ("OMB") granting an appeal heard on August 26, 2015
    (the "OMB Appeal") and approving a proposed development of the three
    properties, defined in the Agreements as the "OMB Decision". This
    condition was contained in the section of the Agreements entitled "OMB
    Condition.

[4]

Handwritten changes were made to the Agreements that required the
    respondent to either deliver notice in writing that the OMB Condition was
    fulfilled, or to waive the OMB Condition, within 7 days of the
    "verdict" (the term used in two of the Agreements) or the official
    verdict (the term used in the third Agreement). The terms "verdict"
    and "official verdict" were not defined in the Agreements.

[5]

The OMB released its decision on March 15, 2016, in which it granted the
    appeal and approved the proposed development. The formal Order was withheld
    pending completion of both the site plan process and approval of the form of zoning
    by-law amendment by the City Solicitor.

[6]

Thereafter, the City of Toronto requested a reconsideration of that
    approval which was dismissed by the Board in written reasons issued on June 28,
    2016 (the "OMB Dismissal").

[7]

The parties agree that the "OMB Decision", within the meaning
    of the Agreements, was not issued because there was not, as yet, a final,
    unappealable and official Order.

[8]

The issue on appeal is the correct interpretation of the handwritten terms
    "verdict" and "official verdict" in the Agreements, more
    specifically, whether those terms have the same meaning as the defined term OMB
    Decision. If the meaning is the same, then this appeal must fail and the
    motion judges conclusion that the Agreements are valid and enforceable is to
    be upheld. If the meaning of those terms is different, then the appeal must
    succeed.

[9]

The motion judge, in careful and detailed reasons, determined that the terms
    "verdict" and "official verdict" had the same meaning as
    the term OMB Decision. The appellants contend that the motion judge erred in
    that conclusion. In particular, they contend that the fact that different terms
    were used presumptively suggests that different meanings were intended by the
    parties.

[10]

We
    agree with the conclusion reached by the motion judge. We agree with his
    conclusion that, on a fair and purposive reading of the Agreements, the parties
    intended that these terms have the same meaning. The whole purpose of the
    Agreements was to permit the respondent to make a final decision on whether to
    be bound by the Agreements depending on the final conclusion reached by the OMB
    regarding the proposed development. The respondent required a final order in
    that regard before making its decision.

[11]

The
    appellants rely on certain authorities, notably
Heritage Capital Corp. v.
    Equitable Trust Co
.,
2016 SCC 19, [2016] 1 S.C.R. 306, that [m]eaning
    must be given to the choice to use one term in one clause and a different term
    in a different clause of the same agreement (para. 47).

[12]

That
    principle is not inviolate. Its application depends on the circumstances of the
    case, the nature of the differences between the terms, and any possible reason
    for the use of different terms. In this case, it is of particular significance
    that the terms verdict and official verdict were made in handwritten
    changes to the formal agreements. The changes were made by the parties, without
    the assistance of their lawyers, who had drafted the formal agreements. In
    those circumstances, the fact that different terms were used is not surprising.
    It does not change the reality, as found by the motion judge, that the
    intention of the parties was clear. What was central to the Agreements was the
    receipt of a final decision of the OMB, and the parties agree that no such
    final decision was ever received before this dispute arose.

[13]

In
    the end result, we agree with the motion judge when he said, at para. 69:

In my
    view, the provisions in the agreements with respect to the closing dates which
    specifically provide that closing is "subject to the Buyer accepting the
    OMB Decision" are consistent with an interpretation of the agreements
    under which the terms "verdict" and "official verdict" of
    the OMB are given the same meaning as the term "OMB Decision".

[14]

We
    do not accept the appellants submission that this conclusion leads to a
    commercial absurdity. To the contrary, the interpretation accords with the
    clear intention of the parties through the Agreements.

Conclusion

[15]

The
    appeal from the judgment of the motion judge is dismissed. In accordance with
    the agreement of the parties, the appellants will pay to the respondent costs
    of the appeal fixed at $20,000 plus disbursements and HST.

P.
    Lauwers J.A.

B.W.
    Miller J.A.

I.V.B.
    Nordheimer J.A.


