



COURT OF APPEAL FOR ONTARIO

CITATION:
Horn
    Ventures International Inc. v. Xylem Canada Company (ITT  Canada Ltd.),
    2021 ONCA 341

DATE: 20210521

DOCKET: C68682

Huscroft, Paciocco and Jamal JJ.A.

BETWEEN

Horn Ventures International Inc.

Applicant (Respondent)

and

Xylem Canada Company (Formerly ITT Canada Ltd.)

Respondent (Appellant)

Scott Kugler, Jennifer Danahy, and Cathleen Brennan, for
    the appellant

Kyle Armagon, for the respondent

Heard: May 12, 2021 by video conference

On appeal from the order of Justice Grant R. Dow of the Superior
    Court of Justice, dated September 9, 2020.

REASONS FOR DECISION

[1]

The appellant argues that the application judge erred in declaring that
    an obligation to purchase set out in the parties 1996 lease remains in effect
    through subsequent lease renewals.

[2]

We disagree.

[3]

The application judge was required to interpret a series of contractual
    documents in order to determine the nature of the parties agreement. As the
    Supreme Court of Canada explained in
Sattva Capital Corp. v. Creston Moly
    Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, contractual interpretation
    involves issues of mixed fact and law. The application judges decision is
    entitled to deference, in the absence of a palpable and overriding error.

[4]

We see no such error.

[5]

It was open to the application judge to conclude that the respondents
    Obligation to Purchase following environmental remediation by the appellant
    established a deferred purchase agreement and that this agreement was renewed
    by the subsequent lease renewals. The application judge considered the relevant
    authorities. His decision is entitled to deference and there is no basis for
    this court to interfere with it.

[6]

The appeal is dismissed. The respondent is entitled to costs in the
    agreed amount of $20,000, all inclusive.

Grant Huscroft J.A.

David M. Paciocco J.A.

M. Jamal J.A.


