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Contracts - Interpretation - Ambiguity. Baker v. Van Dolder’s Home Team Inc.
In Baker v. Van Dolder’s Home Team Inc. (Ont CA, 2026) the Ontario Court of Appeal considered two consolidated wrongful dismissal appeals, these relating to the rule that specific contractual termination provisions that fail to be ESA-compliant are void - and that common law pay in lieu of notice principles are thus re-instated.
Here the court attempts to resolve some difficulties that this area of law has experienced, emphasizing that one must not be over-eager to find 'ambiguity' [see para 32]:[1] In 2018, this court observed that, despite a myriad of cases considering whether termination clauses are compliant with the Employment Standards Act 2000, S.O. 2000, c. 41 (the “ESA”), “[i]t is fair to say that not all of the cases can be easily reconciled”: see Amberber v. IBM Canada Ltd., 2018 ONCA 571, 424 D.L.R. (4th) 169, at para. 42. At around the same time, a leading practitioner in the field delivered a much blunter assessment, arguing that “[c]ounsel can do little more than guess at the answers to the central questions of when a termination clause will be upheld as valid and enforceable, and as displacing the employee’s common law entitlement to reasonable notice or pay in lieu thereof”: see Stephen J. Moreau, “Fixing the Broken Law of Termination Clauses” (2020) 22:2 C.L.E.L.J. 143, at p. 143. One of Moreau’s chief complaints was that virtually identical termination clauses might in one case be found to be inconsistent with the ESA and therefore void, but in another be found to be valid and enforceable. He explains, “[t]he case law has often divided sharply on what can only be described as the most pedantic or trivial of grounds … [t]he failure to insert, or not insert, a word has often been fatal”: Moreau, at p. 149.
[2] The two orders under appeal suggest that the uncertainty in the jurisprudence governing termination provisions in employment contracts has yet to be satisfactorily resolved. The impugned language in the without cause termination provisions in the two contracts at issue were virtually identical. Yet in Baker v. Van Dolder’s Home Team Inc., 2025 ONSC 952 (“Baker v. Van Dolder”), the inclusion of the words “at any time” was held to be inconsistent with the ESA, rendering the termination clause unenforceable, whereas in Li v. Wayfair Canada ULC., 2025 ONSC 2959, 99 C.C.E.L. (4th) 242 (“Li v. Wayfair”), a provision permitting without cause termination “at any time and for any reason” was held to be valid and enforceable.
[3] These appeals provide an opportunity to clarify the relevant legal principles governing the interpretation of termination provisions in employment contracts. This will not only assist trial courts which must determine the enforceability of such provisions but, more importantly, serve the mutual interest of the parties to such agreements, who might thereby be spared the necessity of litigating an issue of considerable consequence at a time when employees are particularly vulnerable.
[4] The interpretive framework I set out below, far from being novel, is an elaboration of established principles endorsed by this court as well as the Supreme Court of Canada on numerous occasions. These established principles begin with the recognition that employment contracts must be interpreted differently than other commercial agreements so as to further employment law principles, most notably the desirability of protecting the interests of vulnerable employees. At the same time, determining the meaning of an employment contract is still an exercise in contractual interpretation, with the goal being to understand the objective intentions of the parties as expressed in the wording of the contract as a whole, understood in light of the relevant surrounding circumstances.
[5] Applying this interpretive framework to the termination provisions in the two contracts at issue in these appeals, I find that the wording of the provisions, considered in the context of each contract as a whole and the relevant surrounding circumstances, reflects an objective intention to comply with the minimum standards in the ESA applicable upon the termination of employment. That interpretation is consistent with employment law principles – it protects employees by giving effect to the terms they would reasonably be understood to have agreed to. ....
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A. Governing interpretive principles
[28] It has long been recognized that a contract of employment “has many characteristics that set it apart from the ordinary commercial contract”: Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701, at para. 91. These characteristics include the importance of employment to an individual’s dignity and sense of self-worth; the pronounced power imbalance between employers and employees; and the fact that individual employees generally lack bargaining power vis-à-vis their employer in negotiating more favourable contract terms, especially concerning tenure: see Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986, at pp. 1002-03; Wallace, at paras. 90-94; Ceccol v. Ontario Gymnastic Federation (2001), 2001 CanLII 8589 (ON CA), 55 O.R. (3d) 614 (C.A.), at paras. 47-48; and Wood, at paras. 25-28.
[29] Employees are most vulnerable and in need of protection at the point at which the employment relationship ruptures: Wallace, at para. 95. Given this need, courts have given prominence to the remedial nature of the ESA, s. 5 of which prevents parties from contracting out of its standards, and have favoured interpretations of termination provisions in employment contracts which encourage employers to draft agreements that comply with it. This is because “[i]f the only consequence employers suffer for drafting a termination clause that fails to comply with the ESA is an order that they comply, then they will have little or no incentive to draft a lawful termination clause at the beginning of the employment relationship”: Wood, at para. 28, citing Machtinger, at p. 1004. Although parties may agree to termination without reasonable notice as required at common law, they may not agree to do so in a way that limits the employer’s obligations under the ESA. A termination clause will rebut the presumption of reasonable notice at common law and comply with the ESA only if its wording is clear and, if a termination clause could reasonably be interpreted in more than one way, courts should prefer the interpretation that gives the greater benefit to the employee: Wood, at paras. 20, 28; Ceccol, at para. 49.
[30] At the same time, the determination of the meaning of an employment contract is still an exercise in contractual interpretation. The modern approach to contractual interpretation has shifted away from technical and legalistic formulations and towards a “practical, common-sense approach” that focuses on the objective intention of the parties in light of the words used and the surrounding circumstances: Sattva, at paras. 47, 49, 56-58. The overriding concern is to ascertain “what the parties would have reasonably understood their words to mean and to ensure the parties’ objective intention is not thwarted by strict rules of interpretation…”: Earthco, at para. 95. To achieve this objective, courts must “read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract”: Sattva, at para. 47.
[31] The requirement that contracts must be interpreted in light of their surrounding circumstances is important. It is premised on the fact that contractual intention cannot be properly ascertained by looking at words in isolation, since “words alone do not have an immutable or absolute meaning”: Sattva, at para. 47; Earthco, at para. 64. Thus, while “the meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean”: Sattva, at para. 48, citing Investors Compensation Scheme Ltd. v. West Bromwich Building Society, [1998] 1 All E.R. 98 (H.L.), at p. 115. Moreover, courts should avoid a legalistic “magic words” approach whereby the use of certain words considered in isolation will necessarily determine the legal effect of a contractual provision: see Earthco, at para. 98.
[32] A further important interpretive principle is that a contractual provision is not ambiguous merely because it is possible to identify multiple potential or hypothetical interpretations. Genuine ambiguity only arises where there are two or more reasonable but differing interpretations considered in the context of the entire contract: Amberber, at paras. 43-45; Bertsch v. Datastealth Inc., 2025 ONCA 379, at paras. 9-11; see also Emond v. Trillium Mutual Insurance Co., 2026 SCC 3, 509 D.L.R. (4th) 583, at paras. 37-47. Moreover, courts should not strive to find an ambiguity where none reasonably exists: Amberber, at para. 65. At paras 33-80 the court successively walks through the wording of the two involved contracts and interprets them as ESA-compliant, chastising the lower court for failing to read the contract 'as a whole' (specifically, these broad encompassing terms such as 'at any time' or 'for any reason' are always limited by a presumption of ESA-compliance):[53] I conclude that there is no conflict between the inclusion of the Impugned Words in the Without Cause Provision and statutory provisions in the ESA or other statutes which limit when or why an employer can terminate a contract of employment. The motion judge’s finding to the contrary proceeded on the basis of an error in principle, namely, reading the words literally and in isolation without regard to the parties’ objective mutual intentions. With respect, his analysis strained to find an ambiguity where none existed. I would therefore set aside his finding and instead find that the Without Cause Provision in Mr. Baker’s employment contract is compliant with the ESA.
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[61] Just as courts have frequently found without cause provisions with the wording “at any time” to be enforceable, many Ontario judges have enforced provisions containing the words “for any reason” (or analogous phrases like “at its sole discretion”): see e.g., Oudin v. Centre Francophone de Toronto, 2016 ONCA 514, 34 C.C.E.L. (4th) 271, at paras. 2, 10, leave to appeal refused, [2016] S.C.C.A. No. 391; Dimson v. KTI Kanatek Technologies Inc., 2013 ONCA 454, 10 C.C.E.L. (4th) 309, at paras. 5, 7; Clarke v. Insight Components (Canada) Inc., 2008 ONCA 837, 70 C.C.E.L. (3d) 13, at paras. 1, 6; Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967, 79 C.C.E.L. (4th) 224, at paras. 57, 94; Raposo v. CA Canada Company, 2018 ONSC 4226, 49 C.C.E.L. (4th) 329, at paras. 10, 46; Simpson v. Global Warranty Management Corporation, 2014 ONSC 724, at paras. 8, 75, 77, aff’d 2014 ONSC 6916 (Div. Ct.); and Nikolic v. Computer Associates, [2000] O.T.C. 458 (S.C.), at paras. 4, 19.
[62] The words “for any reason” simply mean that a termination will be consistent with the contract and therefore legally effective regardless of the reason for the termination. Putting it another way, the employer is not required to give the employee a reason for terminating the employment contract. They simply need to provide the employee with their contractual entitlement on termination, express or implied, which must, at a minimum be the ESA entitlements. But the fact that the employer is not required to give a reason for terminating a contract without cause does not mean that the employer could plausibly maintain that the contract somehow purported to exempt it from prohibitions on termination found in the ESA, such as ss. 53 and 74.
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V. Conclusion
[83] For the above reasons, the termination provisions in both employment contracts reflect an objective intention to provide Mr. Baker and Mr. Li with the minimum statutory entitlements set out in the ESA. The provisions are thus valid and enforceable.
[84] Because this result rebuts the presumption of common law reasonable notice to which Mr. Baker and Mr. Li would otherwise have been entitled, it might be thought to be a harsh outcome that fails to give effect to the remedial purpose of the ESA. But this cannot be the case because the ESA itself contemplates that the presumption of reasonable notice is a mere common law principle that can be excluded by express contractual terms to the contrary. If the minimum entitlements under the ESA are for any reason deemed to be insufficient or inadequate substitutes for common law reasonable notice, that is a matter for the legislature rather than the courts. The proper judicial role is to focus “on what the parties objectively intended and what they reasonably understood their words to mean” (Earthco, at para. 64), rather than straining to find ambiguity where none exists, on the assumption that such an approach will somehow benefit employees.
[85] In any event, it is far from obvious that such a search for ambiguity will actually benefit employees in the long run. This is because formalistic or technical interpretations of contractual language without regard to the intentions of the parties leads to indeterminacy and inconsistent results: see Earthco, at para. 96. Very few employees possess the resources required to undertake litigation to resolve such ambiguity. . Emond v. Trillium Mutual Insurance Co.
In Emond v. Trillium Mutual Insurance Co. (SCC, 2026) the Supreme Court of Canada dismissed an appeal, here brought against an order in the Ontario Court of Appeal that "ordered that the cost of replacement payable under the insurance contract does not include the compliance costs" with building requirements imposed by the local conservation authority.
The court considers the resolution of contractual ambiguity, here in an insurance context:(3) Resolving Ambiguity
[48] In the face of ambiguity, the court cannot rely on the language alone. Instead, it must move to a second stage and employ other rules of contractual interpretation to resolve that ambiguity (Ledcor, at para. 50).
[49] These rules include, but are not limited to: that the interpretation should be consistent with the reasonable expectations of the parties; it should not give rise to results that are unrealistic or that the parties would not have contemplated in the commercial atmosphere in which the insurance contract was formed; and it should be consistent with the interpretations of similar insurance policies (Ledcor, at para. 50).
[50] If ambiguity still remains after the two first stages, the court must have resort to the contra proferentem rule at a third stage, which provides that the ambiguity must be resolved in a manner favourable to the insured (Ledcor, at para. 51). In the context of insurance policies, contra proferentem means that interpretations that result in broader coverage, narrower exclusions and broader exceptions to exclusions are favoured at this stage (para. 51). This rule recognizes the “unequal bargaining power at work in insurance contracts” (Scalera, at para. 70). The insurer is the drafter of the contractual language and bears responsibility for residual ambiguity. . Joannides v. Delaney
In Joannides v. Delaney (Ont CA, 2024) the Ontario Court of Appeal dismisses an easement appeal, where two easements were set out in several documents.
Here the court considers the present of latent ambiguities in the reasment document, and their effects:[1] This appeal involves the interpretation of two easements. The first easement is a 15-foot wide right-of-way (the “Right-of-Way”) that crosses the servient tenement lands, owned by the Joannides (the “appellants”), and connects the dominant tenement lands, owned by Delaneys (the “respondents”), to a municipal roadway. The second easement (the “Right-of-Access”) provides the respondents with access to a well located on the appellants’ property.
[2] The appellants, applicants in the court below, brought an application in the Superior Court of Justice for, inter alia: 1) a declaration that the Right-of-Way does not include any purpose other than ingress and egress, and specifically does not permit the “turnaround of vehicular activity upon the Right-of-Way”; and 2) a declaration that the Right-of-Access is null, void and expunged.
[3] The respondents, applicants by counter-application, sought, inter alia: 1) a declaration that the respondents enjoy an indefeasible right to the Right-of-Way; 2) a declaration that one of the instruments setting out the details of the Right-of-Way be amended nunc pro tunc to correct an apparent drafting error; 3) an interim and permanent injunction that the appellants keep the Right-of-Way free from all obstructions and vehicles; and 4) general and punitive damages in the amount of $100,000.
[4] The central dispute between the parties is over the respondents’ use of what was referred to in the evidence as the turnaround, located on the Right-of-Way.
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REASONS BELOW
[20] The application judge found that the disputed turnaround area is included in the Right-of-Way, writing this, at paras. 46-47 of his reasons:The plain language of the grant of easement is clear that it includes Part 30 for the purpose of ingress and egress. Next, the grant makes reference to Plan 28R-3352, and it shows Part 30 going to the waterfront, and that it includes the ‘turnaround’. Mr. Arthur Hudson [a predecessor of the appellant] believed the Right-of-Way extended to the water.
The Court accepts the Respondent’s [i.e., the Delaneys’] argument that had the intention been to exclude the ‘turnaround’ from the Right-of-Way, one would reasonably expect that Part 30 would have been split in two or more parts, so that the ‘turnaround’ and the ‘well’ would have been shown as their own Parts separate from the Right-of-Way. [21] In arriving at this conclusion, the application judge found the January 1980 Agreement to include a latent ambiguity when it, and the 1964 Agreement, were applied to the Reference Plan in light of the grant of easement. The application judge’s reasons were somewhat imprecise as to which instrument gave rise to the Right-of-Way. While the application judge suggested the January 1980 Agreement was ambiguous when applied to the Reference Plan, considering the “grant of easement” in the September 1980 Indenture, he recognized that, prior to 1980, the Right-of-Way was “set out” in the 1961 Grant.
[22] This imprecision, however, does not necessarily compromise the application judge’s conclusion. The issue in this case is not whether the Right-of-Way exists or when it came into existence; the easement was already running with the land by the time the January 1980 Agreement came into effect, per the 1961 Grant. The issue is whether the application judge erred in finding that the January 1980 Agreement, and the 1964 Agreement, reveal an ambiguity when applied to the land itself considering the existing easement.
[23] As this court explained in Gibbs v. Grand Bend (Village) (1995), 1996 CanLII 2835 (ON CA), 26 O.R. (3d) 644 (Ont. C.A.), at p. 658, the finding of a latent ambiguity allows judges to rely on extrinsic evidence, including evidence of subsequent conduct, to assist in their interpretation of an agreement: See also Arthur Anderson Inc. v. Toronto Dominion Bank (1994), 1994 CanLII 729 (ON CA), 17 O.R. (3d) 363 (Ont. C.A.), at p. 372, leave to appeal refused, [1994] S.C.C.A. No. 189. According to the application judge, ambiguity arises from the two possible interpretations of the January 1980 Agreement: 1) one that would allow the servient tenement owners (the appellants) to park on the ‘turnaround’, even if doing so blocked ingress and egress by the respondents; and 2) another which would permit the appellants to park on the ‘turnaround,’ but not in a way that would restrict ingress and egress. The extrinsic evidence that led the application judge to conclude that the Right-of-Way was intended to include the turnaround for the purpose of ingress and egress was, among other things, that “for 18 years before the 1980 grant and for 16 years after, the ‘turnaround’ was kept clear to permit use by the [respondents]”. According to the application judge, this evidence supported the position that the turnaround cannot be obstructed.
[24] As discussed above, the application judge further found that there was a drafting error in the September 1980 Indenture. Specifically, he found that the Instrument omitted Part 35, which is to the west of and adjacent to Part 30, from the description of the Right-of-Way, which he found to be “necessary to permit access to and from the [respondents’] Lands.” Thus, pursuant to ss. 159 and 160 of the Land Titles Act, R.S.O. 1990, c. L. 5, he amended the September 1980 Indenture nunc pro tunc to include Part 35.
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(1) Latent Ambiguity: Using Extrinsic and Subsequent Conduct Evidence
[35] The application judge did not err in his finding of a latent ambiguity. It was therefore open to him to consider extrinsic evidence: Herold Estate, at para. 49. As this court explained in Gibbs, at p. 658, extrinsic evidence may be introduced only in the case of a latent ambiguity for the purposes of ascertaining the intention of the grantor.
[36] The test for finding a latent ambiguity is met where “the description of the land in the deed or grant, when applied to the land itself, raises an issue about the location of a boundary” (emphasis added): Herold Estate, at para. 49. Expressed another way, a latent ambiguity arises when the application of an instrument to the facts or land, not the explicit terms of the instrument, gives rise to various interpretations: Gibbs, at p. 658; see also Taylor v. City Sand & Gravel Ltd., 2010 NLCA 22, 90 R.P.R. (4th) 157, at para. 21; Missilinda of Canada Ltd. v. Husky Oil Operations Ltd., 2007 MBCA 24, 212 Man. R. (2d) 252, at para. 10.
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[39] The application judge made no extricable error in law. He clearly understood, and properly applied, the test for the finding of a latent ambiguity, which requires that the relevant instrument raise an issue about the property right when applied to the land: Herold Estate, at para. 49. And, in the end, he found there to be a latent ambiguity “when [the January 1980 Agreement] and Instrument 14491 [the 1964 Agreement] are applied to [the Registered Plan] in light of the grant of easement”.
[40] Again, in the absence of an extricable error of law, the application judge’s finding of a latent ambiguity is entitled to deference: Casurina Ltd. Partnership v. Rio Algom Ltd. (2004), 2004 CanLII 30309 (ON CA), 40 B.L.R. (3d) 112 (Ont. C.A.), at para. 34, leave to appeal refused, [2004] S.C.C.A. No. 105, citing with approval, Chitty on Contracts, 28 ed. (London: Sweet & Maxwell, 1998) at para. 12-046; Keefer Laundry Ltd. v. Pellerin Milnor Corp, 2009 BCCA 273, 57 B.L.R. (4th) 161, at paras. 57-60.
[41] Where the words in the grant of a right-of-way are unclear, the subsequent conduct, historic use, and circumstances surrounding the use of the property subject to the easement, are particularly important to understand the nature and extent of the rights conveyed: Arthur Anderson, at p. 372; Markowski v. Verhey, 2020 ONCA 472, 26 R.P.R. (6th) 1, at para 32, citing Square-Boy Limited v. The City of Toronto, 2017 ONSC 7178, at para. 33; Laurie v. Winch, 1952 CanLII 10 (SCC), [1953] 1 S.C.R. 49, at p. 56. Here, there was evidence that, since 1962, the appellants and their predecessors consistently kept the turnaround clear so that use of the easement would not be blocked. It was therefore open to the application judge to rely on the extrinsic evidence that the respondents’ predecessors’ use of the turnaround was “open and notorious” when the 1980 instruments were formed.
[42] Furthermore, the application judge appropriately admitted and relied on evidence of subsequent conduct in finding that the appellants’ predecessors had kept the turnaround free because they felt “obliged to keep the turnaround clear, because it was part of the Right-of-Way on Part 30”, and that the respondent’s predecessor had used the turnaround since the early 1960s and did not seek permission from the appellants’ predecessors to use it.
[43] This subsequent conduct evidence was not just admissible in resolving the latent ambiguity in the January 1980 Agreement, for reasons explained by Strathy C.J.O. in Shewchuk, at paras. 53-54, it was also reliable:In the usual course, evidence of subsequent conduct will be more reliable if the acts it considers are the acts of both parties, are intentional, are consistent over time, and are acts of individuals rather than agents of corporations.
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Evidence of subsequent conduct will have greater weight if it is unequivocal in the sense of being consistent with only one of the two alternative interpretations of the contract that generated the ambiguity triggering its admissibility. […] For instance, in Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47, 265 O.A.C. 247 (Ont. C.A.), at para. 162, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 91 (S.C.C.), this court found that the parties' subsequent conduct was of assistance in determining which of two reasonable interpretations of a contract should be accepted because the conduct in question was "overwhelmingly consistent only with the trial judge's interpretation." [44] The evidence that the parties’ predecessors had kept the turnaround clear for decades, before and after 1980, “because it was part of the Right-of-Way”, is overwhelmingly consistent with an interpretation that denies the right to park in a manner that limits the respondents’ right to ingress or egress by obstructing use of the turnaround. As the application judge concluded, the only discernible reason for extending the right of way to the “turnaround” area of Part 30 was to permit the owners of the dominant tenement to use it to turn their vehicles around, in order to allow them to avoid having to back up or down the steep driveway.
[45] In light of the extrinsic evidence discussed above, it was open to the application judge to accept the importance of the ‘turnaround’ to the use of the Right-of-Way, and to conclude that, if the original intention behind the Right-of-Way was to permit the appellants and their predecessors to both park on and block the ‘turnaround’, one would have expected that “[a] release of the [Right-of-Way] at the ‘turnaround’ would [have been] made explicit” in either the September 1980 Indenture or January 1980 Agreement. . Jakab v. Clean Harbors Canada, Inc.
In Jakab v. Clean Harbors Canada, Inc. (Ont CA, 2023) the Court of Appeal considered principles of contractual interpretation, including the interaction between 'ambiguity' and 'contra proferentum':C. THE RELEVANT LEGAL PRINCIPLES
[11] Contractual interpretation is an exercise in discovering the “objective intentions of the parties as expressed in the words of the contract”: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, a para. 57. This “fact-specific goal” requires a trial court to “read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract”: Sattva, at para. 47; Ledcor, at para. 27. When a contract is read as a whole, it should be interpreted “in a manner that gives meaning to all of its terms and avoids an interpretation that would render one or more of its terms ineffective”: 2249778 Ontario Inc. v. Smith (Fratburger), 2014 ONCA 788, at para. 19; Meridian C C Intl Inc. v. 2745206 Ontario Inc., 2022 ONCA 12, at para. 7. The exercise of interpretation should also reflect the factual matrix underlying the contract and accord with sound commercial principles and good business sense, while avoiding commercially absurd interpretations: 2249778 Ontario Inc., at para. 19. However, “the [surrounding circumstances] should never be allowed to overwhelm the words of [the] agreement”: Sattva, at para. 57.
[12] If ambiguity in contract terms still remains after the above principles are applied, the rule of contra proferentem can be applied: Ledcor, at para. 51. Its role is to give effect to an ambiguous clause by preferring the reasonable interpretation that favours the party that did not have control over its drafting: Manulife Bank of Canada v. Conlin, 1996 CanLII 182 (SCC), [1996] 3 S.C.R. 415, at para. 9; 2249778 Ontario Inc., at para. 22.
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[20] Moreover, the rule of contra proferentem applies in cases where contractual clauses are ambiguous: 2249778 Ontario Inc., at para. 22. A determination of ambiguity cannot be arrived at until after the material clause has been interpreted in the context of the contract as a whole. No ambiguity exists unless, after the principles of construction have been applied, more than one reasonable construction remains. ... . Ha et al. v. Arista Homes
In Ha et al. v. Arista Homes (Div Ct, 2011) the Divisional Court considered some principles of contractual interpretation on the issue of ambiguity in a written contract:Principles of Contractual Interpretation
[32] In my view, it is inappropriate to simply focus on a single provision in an agreement in isolation as the appellant urges the court to do in respect of the expression “Closing costs to be capped at $2,300.00 plus GST…”. I am required to consider the whole document along with the relationship between the parties and the business purpose of the Agreement, and not just the specific words in a provision. See Bell Canada v. The Plan Group (2009), 2009 ONCA 548 (CanLII), 96 O.R. (3d) 81, 2009 O.J. No. 2829 (C.A.) per Blair J.A., where he noted:[38] In addition, as Doherty J.A. observed in Glimmer Resources Inc. v. Exall Resources Ltd., 1999 CanLII 1102 (ON CA), [1999] O.J. No. 1357, 119 O.A.C. 78 (C.A.), at para. 17, each word in an agreement is not to be “placed under the interpretative microscope in isolation and given a meaning without regard to the entire document and the nature of the relationship created by the agreement”. Courts should not strain to dissect a written agreement into isolated components and then interpret them in a way that -- while apparently logical at one level -- does not make sense given the overall wording of the document and the relationship of the parties. [33] I am also cautious about invoking the “plain meaning rule,” based on Professor Ruth Sullivan’s cogent argument in Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis Canada, 2008) at pp. 353-58 and 12-13, that the court must avoid unconsciously invoking the rule, since doing so may conflate the important analytical steps of identifying the text to be interpreted, determining the relevant context, and testing for ambiguity. The words of any written instrument take their meaning from their context and those words, properly understood in context, can well reveal a latent ambiguity: Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62 (CanLII), [2005] 3 S.C.R. 141, [2005] S.C.J. No. 63 at para. 10 per McLachlin C.J.
[34] The basic law was most recently expressed in Salah v. Timothy’s Coffees of the World Inc. (2010), 2010 ONCA 673 (CanLII), 74 B.L.R. (4th) 161, [2010] O.J. No. 4336 (C.A.) per Winkler C.J.O. at para. 16:The basic principles of commercial contractual interpretation may be summarized as follows. When interpreting a contract, the court aims to determine the intentions of the parties in accordance with the language used in the written document and presumes that the parties have intended what they have said. The court construes the contract as a whole, in a manner that gives meaning to all of its terms, and avoids an interpretation that would render one or more of its terms ineffective. In interpreting the contract, the court must have regard to the objective evidence of the “factual matrix” or context underlying the negotiation of the contract, but not the subjective evidence of the intention of the parties. The court should interpret the contract so as to accord with sound commercial principles and good business sense, and avoid commercial absurdity. If the court finds that the contract is ambiguous, it may then resort to extrinsic evidence to clear up the ambiguity. [35] Ryan J. noted in Delisle v. Bulman Group Ltd., 1991 CanLII 295 (BC SC), [1991] 4 W.W.R. 637, [1991] B.C.J. No. 585, 1991 CarswellBC 54 (B.C.S.C) at para. 12 (Delisle cited to CarswellBC):If, after examining the agreement itself in its factual matrix, including the particular words used in their immediate context and in the context of the agreement as a whole, there remain two reasonable alternative interpretations, then additional evidence may be admitted. This evidence includes evidence of the facts that led up to the making of the agreement, evidence of the circumstances as they existed at the time the agreement was made, and evidence of subsequent conduct of the parties to the agreement. The two existing reasonable interpretations may be the result of ambiguity arising from doubt, uncertainty or difficulty of construction. (Re C.N.R. and C.P. Ltd. (1979), 1978 CanLII 1975 (BC CA), 95 D.L.R. (3d) 242 (B.C.C.A.). [36] See also the words of Gale C.J.O. in Leitch Gold Mines Ltd. et al. v. Texas Gulf Sulphur Co. (Incorporated) et al. (1969), 1968 CanLII 405 (ON SC), 3 D.L.R. (3d) 161, [1969] 1 O.R. 469, [1968] O.J. No. 1336 (H.C.) at para. 232 (Leitch cited to O.J.):Extrinsic evidence may be admitted to disclose a latent ambiguity, in either the language of the instrument or in its application to the facts, and also to resolve it, but it is to be noted that the evidence allowed in to clear up the ambiguity may be more extensive than that which reveals it. Thus, evidence of relevant surrounding circumstances can be accepted to ascertain the meaning of the document and may clarify the meaning by indirectly disclosing the intention of the parties.
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