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Contracts - Interpretation - Time Speaking. Boliden Mineral AB v. FQM Kevitsa Sweden Holdings AB
In Boliden Mineral AB v. FQM Kevitsa Sweden Holdings AB (Ont CA, 2023) the Court of Appeal considered the time when a representation (here a contractual warranty) is 'speaking' from:[24] First, FQM submits that the application judge failed to approach the matter from the perspective that a representation and warranty is required to be true on the date it is made (in this case, the date of closing of the SPA). FQM submits that this is a principle of contractual interpretation – representations in an agreement must be assessed as speaking from the time they are made and are not actionable simply because in light of a subsequent event they are no longer true – and cites Beatty v. Wei, 2018 ONCA 479, 429 D.L.R. (4th) 63, at paras. 7, 55.
[25] FQM points to the application judge’s statement that the representation and warranty “turned out to be inaccurate” as indicating that he did not apply the correct temporal focus. FQM submits that, viewed at the time of closing, the representation and warranty was true. The reassessment should be viewed as having arisen due to a post-closing reinterpretation of tax legislation, the characterization given to it in submissions directed by FQM and approved by Boliden for Kevitsa’s (to date unsuccessful) tax appeals from the reassessment.
[26] In our view, the application judge did not make the error alleged. He directed himself to the provision of the SPA that representations and warranties were to be true and correct at the time of closing. He considered the words used in the context of the agreement as a whole and the factual matrix. ...
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