The Court of Appeal for Ontario has recently found another
exception to the post-Sattva deference applicable to the
interpretation of non-standard form contracts. In Union
Building Corporation of Canada v. Markham Woodmills Development
Inc., 2018 ONCA 401, Nordheimer J.A. allowed an
appeal where the application judge had decided the case based on a
different clause of the agreement than that relied upon by the
parties. The resulting procedural unfairness warranted judicial
intervention.
Background
The appeal turned on an agreement of purchase and sale in which
the appellant agreed to sell an undeveloped parcel of
agricultural-zoned land to the respondent. The agreement was
conditional on the City of Markham consenting to the severance of
the land. Clause 17 required the appellant to satisfy any
conditions that the City imposed, except for "onerous or
unreasonable" ones, in which case the appellant could give the
respondent the opportunity to satisfy the condition
