



COURT OF APPEAL FOR ONTARIO

CITATION: Global
    Learning Group Inc. v. Eskasoni First Nation, 2013 ONCA 325

DATE: 20130516

DOCKET: C56153

Rosenberg, Goudge and Tulloch JJ.A.

BETWEEN

Global Learning Group Inc.

Applicant (Respondent)

and

Eskasoni First Nation

Respondent (Appellant)

Maxime Faille, for the appellant

David Winer, for the respondent

Heard: April 29, 2013

On appeal from the judgment of Justice
Elizabeth M.

Stewart of the Superior Court of Justice, dated November 7, 2012.

Goudge
    J.A.:

[1]

The appellant is an Indian band within the meaning of the
Indian Act
,
    R.S.C. 1985, c. I-5.  The respondent provides fundraising services to clients
    such as the appellant.

[2]

On October 20, 2009, the respondent contracted with the appellant to
    solicit donations for the appellant.  The contract provided that the respondent
    would be paid a fee equal to 15 percent (including GST) of the gross amount of
    donations raised for the band in the timeframe being invoiced.

[3]

The dispute arose because the appellant, as an Indian band, is exempted
    by statute from payment of GST on services provided to it.  A service provider
    to the appellant is therefore not required to collect GST from it for remitting
    to the government.

[4]

This led to a difference between the parties on the meaning of the
    reimbursement provision in the contract, particularly including GST.

[5]

The appellant says that including GST refers to the amount for GST
    that a non-exempt client would be required to pay for equivalent services.  It
    says that this amount constitutes a deduction from the 15 percent that it is
    required to pay.  On the other hand, the respondent says that including GST
    means the GST payable on these services to this appellant, which, because of
    the exemption, is zero.

[6]

The respondent brought an application to resolve this dispute.  The
    application judge concluded that the contract was clear and unambiguous.  She
    agreed with the respondents interpretation, holding:

On its face, the contract required the Applicant to assume the
    risk and responsibility of remitting GST.  The fact that GST was determined to
    be inapplicable to the Respondent does not operate to reduce the fees to be
    paid by it or trigger a corresponding discount.

[7]

In the alternative, the application judge went on to consider the
    post-contract conduct of the parties which she viewed as supportive of the
    respondents interpretation, if one viewed the contract as ambiguous.

[8]

The appellant appeals to this court from the order of the application
    judge.  Both parties essentially reprise the arguments they made at first
    instance.

[9]

For several reasons, I would dismiss the appeal.

[10]

First,
    I do not think the words including GST can bear the meaning urged by the
    appellant.  Neither that phrase nor its contractual context refer in any way to
    the GST that a different, non-exempt client would have to pay for equivalent
    services.  Rather the phrase simply refers to the GST that this client has to
    pay for these services.  Given the appellants tax exempt status, that amount
    is zero.

[11]

Second,
    I do not think that the contested phrase including GST carries any
    implication of a discount to the appellant.  Whether the GST that a client has
    to pay is zero percent (as it is with the appellant), or five percent (as it
    would be for a non-exempt client), the contract obliges the appellant to pay a
    fee equal to 15 percent of donations, not some lesser amount.  The contract
    language clearly requires the appellant to pay a fee of 15 percent.  Moreover
    there is no suggestion in the factual context for the making of this contract,
    namely the factual matrix, that the parties contemplated that the appellants
    exemption from GST would provide it with any discount from 15 percent.

[12]

I
    would therefore conclude that the application judge was correct to find that
    the language of the contract is clear and that the respondent read it
    correctly.

[13]

It
    is therefore unnecessary to deal with the question of post-contract conduct and
    any possible ambiguity.

[14]

The
    appeal must be dismissed.

[15]

The
    parties may file written submissions on the issue of costs of no more than
    three pages within three weeks of the release of these reasons.

Released: May 16, 2013 (S.T.G.)

S.T. Goudge J.A.

I agree. M. Rosenberg J.A.

I agree. M. Tulloch J.A.


