Docket: CACV2239 Dundee Realty Corporation Appellant - v. -, 2012 SKCA 102

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 102 Date: 2012-10-31 Between: Docket: CACV2239 Dundee Realty Corporation Appellant - and - Harvard Developments Inc. and 101014233 Saskatchewan Ltd. Respondent Coram: Cameron, Ottenbreit and Caldwell JJ.A. Counsel: Murray W. Douglas for the Appellant Deron A. Kuski and Courtney Keith for the Respondent Appeal:

From: 2012 SKQB 73 Heard: October 31, 2012 Disposition: Dismissed (orally) Written Reasons: November 2, 2012 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Ottenbreit Caldwell J.A. [ 1 ] At its core, the issue in this appeal is whether Mr. Justice Whitmore erred in concluding that the Respondent was not in default of payment of the balance of the purchase price of the “Designated Lands” under the Land Exchange and Development Agreement: see 2012 SKQB 73 . [ 2 ] We are of the unanimous view that Mr. Justice Whitmore correctly identified and applied the relevant principles of contract

interpretation to the matter at hand. The Agreement must be read as a whole. In that context, the Agreement provides that the “Services Amount” would be adjusted and, importantly in our minds, that disputes regarding adjustments to that amount were arbitrable. [ 3 ] The arbitration provision in the Agreement speaks about the Designated Lands and the arbitration of issues related thereto. The “Services” were performed by the Appellant in relation to the Designated Lands.

Clearly, then, the issue of adjustments to the Services Amount, an amount which formed part of the purchase price, was an arbitrable issue under the Agreement. It follows, logically and practically, that the Respondent’s obligation to pay that portion of the Services Amount in dispute was stayed pending the determination by arbitration of whether and to what extent it was payable. [ 4 ] On the whole, we can find no error in Mr. Justice Whitmore’s reasons and we dismiss the appeal substantially for the reasons he gave, with costs to the Respondent in the usual manner.