Terms ‘open space lands’ and ‘Greenbelt’ had distinct meanings

Real Property - Sale of land - Agreement of purchase and sale

Developer purchased land from vendors for $62 million. Clause in agreement required application of purchase price adjustment upon approval of planning and zoning issues. Amount in question was $4 million. Purchase price was estimated based on $700,000 per acre of net developmental area (NDA) of residential lands. Developer submitted that appropriate interpretation of NDA definition was that Greenbelt Protected Countryside lands were deducted from NDA regardless of whether storm water management (SWM) ponds were placed upon those lands. Vendors submitted that definition of NDA included SWM ponds on tablelands on lands designated as open space by town, by way of exception to exclusion of open space lands. Application judge found developer was entitled to declaration that SWM ponds located on Protected Countryside did not form part of definition of NDA. Vendors appealed. Appeal dismissed. To achieve vendors' desired interpretation would require re-writing agreement and moving words in parenthesis from where they appeared to end of clause. Terms “open space lands” and “Greenbelt” had distinct meanings and were subject to different planning controls. At closing, Greenbelt lands had not been designated as open space lands. Parties were aware of possibility of putting SWM ponds on Greenbelt lands. Exception in agreement did not apply to Greenbelt Plans at time of closing and that did not change when town subsequently designated lands as open space.

Raki Holdings Inc. v. Lionheart Enterprises Inc. (2019), 2019 CarswellOnt 15398, 2019 ONCA 786, Robert J. Sharpe J.A., C.W. Hourigan J.A., and M. Jamal J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 18562, 2018 ONSC 6421, G.M. Mulligan J. (Ont. S.C.J.).

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