QHR Technologies Inc. v Niebergal, 2022 SKCA 85

Court of Appeal for Saskatchewan Docket: CACV3763 Citation: QHR Technologies Inc. v Niebergal , 2022 SKCA 85 Date: 2022-07-28 Between: QHR Technologies Inc. and Clinicare Corporation Appellants (Defendants/Plaintiffs by Counterclaim) And Dennis Niebergal, Daniel Gallelli, CIC Asset Management Inc. and 846067 Alberta Ltd. Respondents (Plaintiffs/Defendants by Counterclaim) Before: Caldwell, Whitmore and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr.

Justice Kalmakoff On appeal from: 2020 SKQB 327 , Regina Appeal heard: March 1, 2022 Counsel: Peter T. Bergbusch, Q.C., for the Appellant Jason W. Mohrbutter and Aaron R. Fritzler for the Respondent Caldwell J.A. I. INTRODUCTION [ 1 ] QHR Technologies Inc. and Clinicare Corporation [Appellants] appeal against the decision after trial in Niebergal v QHR Technologies Inc. , 2020 SKQB 327 [ Trial Decision ].

Under that decision, a Court of Queen’s Bench judge allowed an action by Dennis Niebergal, Daniel Gallelli, CIC Asset Management Inc. and 846067 Alberta Ltd. [Respondents] against the Appellants for payment of outstanding balances owing under some promissory notes. [ 2 ] In 2009, QHR issued the promissory notes to the Respondents in partial payment for their shares of Clinicare, which QHR had acquired pursuant to a share purchase agreement [SPA]. Following a trial in 2020, the trial judge interpreted the price adjustment clause [Adjustment Clause] in

Schedule C to the SPA such that amounts remained owing to the Respondents without adjustment. Under his

interpretation, only the current liabilities of Clinicare were subject to adjustment and all adjustments had to be communicated to the Respondents by February 1, 2010. As the adjustments proposed by the Appellants had been neither identified nor communicated before that date, the trial judge found that the Respondents were entitled to the remaining amounts owing under the promissory notes plus accrued interest.

The judge dismissed the Appellants’ counterclaims, which alleged that the Respondents had breached their representations and warranties under the SPA and that they had committed the tort of abuse of process by issuing 53 garnishee summonses to customers of a subsidiary of QHR called Optimed Software Corporation [Optimed]. [ 3 ] The Appellants say that the trial judge erred by failing to interpret the SPA in the fullness of the contextual circumstances at the time of its formation. While the Appellants put forward an alternative

interpretation, I conclude that the trial judge’s analysis of the evidence and his application of the law does not give rise to legal error or to a palpable and overriding error of fact or mixed fact and law in his

interpretation of the Adjustment Clause. [ 4 ] The Appellants also allege that the trial judge erred in law when he dismissed their counterclaim under the tort of abuse of process; however, I find no legal error in his decision in that regard. Moreover, his dismissal of the tort claim was based on weaknesses he found in the evidence and, as the trial judge’s findings of fact are supported, this Court is not permitted to interfere with them. [ 5 ] In sum, I would dismiss the appeal with costs to the Respondents. II.

BACKGROUND [ 6 ] Since 1984, Clinicare has delivered electronic medical recordkeeping services to physicians and medical clinics in Canada and the United States. By 2009, Clinicare had fallen behind advancements in electronic medical record [EMR] technologies and began to struggle financially. QHR wished to expand its EMR business and knew of Clinicare’s difficulties. In September of 2009, QHR entered negotiations with the Respondents, who were Clinicare’s principal shareholders, to acquire it.

On October 22, 2009, the parties entered a non-binding letter of intent [LOI] and then continued with their negotiations and a due diligence process in anticipation of entering a purchase and sale transaction. [ 7 ] Under the SPA, which was made effective as of November 30, 2009, QHR agreed to purchase all of the issued and outstanding shares of Clinicare for $5 million “subject to adjustment as described in

Schedule ‘C’”. On December 4, 2009, pursuant to the terms of the SPA, Clinicare management delivered a letter to QHR, attached to which were lists of the current assets and liabilities of Clinicare as well as due diligence checklists and sign-off sheets [Disclosure Letter]. The assets and liabilities so listed were incorporated as

Schedule C to the SPA. The Adjustment Clause in question is contained in a typewritten note at the bottom of

Schedule C immediately below a list of Clinicare’s outstanding liabilities. Critically, apart from that notation (which is set out below), the SPA does not provide a mechanism or formula for adjusting the purchase price payable for the Respondents’ shares. The note reads (in full):

Karim’s [i.e., the CEO of Clinicare] payments $117,647 sales commission on closing & balance within 30 days. Interest 15% after that if not paid. QHR accepts all liabilities above to be paid within 30 days unless other agreement in place. Any Price Adjustment per Clause 1.1 (

c) and 2.2 if made due to underestimating the liabilities set out above shall be made only to the extent that the underestimate is greater than $75,000 and is discovered before 1 February 2010; any adjustment made will not be duplicated in the calculation of any indemnity obligation under clause 11.5. (emphasis added) [ 8 ] On December 4, 2009, QHR paid part of the purchase price to the Respondents by issuing the promissory notes. Clinicare is a party to the Respondents’ action because, as part of the transaction, it guaranteed QHR’s indebtedness under the promissory notes.

The transaction closed on December 8, 2009, with an effective date of November 30, 2009. [ 9 ] In January of 2010, QHR stopped paying under the promissory notes, ostensibly because Clinicare’s cashflow was insufficient to make the payments. On May 24, 2010, QHR asserted for the first time that $600,000 in negative adjustments to the purchase price were required.

The Respondents disputed this amount, disagreed that adjustments were permitted, and rejected the process QHR had proposed for determining adjustments. [ 10 ] The matter quickly proceeded to litigation, with the Respondents seeking to enforce the promissory notes and QHR counterclaiming that the Respondents had breached their representations and warranties under the SPA. Seemingly as part of their collection efforts, in October of 2010, a Respondent swore out affidavits to obtain pre-judgment garnishee summonses under The Attachment of Debts Act , RSS 1978, c A-32 (now repealed).

The Respondents’ deponent averred to believing that 53 medical clinics and associated physicians were indebted to QHR and to Clinicare. As part of its counterclaim, the Appellants asserted that the issuance of the garnishee summonses was an abuse of process because the Respondents were improperly using the garnishee procedure to achieve a collateral purpose, namely, to create a fund that would underwrite any judgment they received against QHR. [ 11 ] The parties’ claims and counterclaims were heard in a three-week trial.

In the Trial Decision , the trial judge found that the Respondents were entitled to the full amounts owing under the promissory notes plus accrued interest—i.e., that no adjustments were required under the SPA. He summarised his

interpretation of the Adjustment Clause in this way: [264] The

interpretation QHR urges me to adopt is not commercially reasonable in this context because, in my opinion, it does not make good business sense – the lodestar for divining the meaning of a commercial contractual instrument. Nor is it consistent with the factual matrix of this contract which indicated the parties desired that this transaction be completed expeditiously and without undue delay. 3. Conclusion [265] Accordingly, for these reasons QHR’s claim that adjustments to the purchase price are required is dismissed.

Consequently, the plaintiffs’ claim seeking payment of the balance owing to them under the Promissory Notes is allowed. [ 12 ] The trial judge also dismissed the Appellants’ counterclaims, finding that the Respondents had not breached their representations and warranties under the SPA (no appeal is taken against this finding).

As to the counterclaim under the tort of abuse of process, while the trial judge found that the sworn belief of the Respondents’ deponent was mistaken (and that only one of the summonses had been properly served), he concluded that the Respondents had not “operated outside the ambit of the legal claim this Court must adjudicate” and, therefore, he dismissed QHR’s counterclaim for damages under the tort (at para 416). III. ISSUES AND STANDARDS OF REVIEW [ 13 ] Framed as broad questions to be answered by this Court, the Appellants ask: (

a) Did the trial judge err in his

interpretation of the Adjustment Clause? (

b) Did the trial judge err by concluding that the Respondents had not committed the tort of abuse of process? (

c) Should the Court remit the

interpretation of the interest rate provision of the promissory notes to the trial judge? [ 14 ] Although there are three issues, this appeal is mostly about the trial judge’s

interpretation of the Adjustment Clause, thereby presumptively giving rise to mixed questions of fact and law that are subject to the palpable and overriding error standard of review ( Corner Brook (City) v Bailey , 2021 SCC 29 at para 44 , 460 DLR (4th) 169 [ Corner Brook ]; Sattva Capital Corp v Creston Moly Corp. , 2014 SCC 53 , [2014] 2 SCR 633 [ Sattva ]; Housen v Nikolaisen , 2002 SCC 33 at para 10 , [2002] 2 SCR 235 [ Housen ]). This means that this Court is not entitled to substitute its own

interpretation of the Adjustment Clause for that of the trial judge unless we are persuaded by the Appellants that the trial judge committed a palpable and overriding error in his

interpretation of it; mere disagreement as to the correct

interpretation does not justify appellate intervention in issues of contractual

interpretation ( Corner Brook at para 47 ). However, in Sattva the Court stated: [53] Nonetheless, it may be possible to identify an extricable question of law from within what was initially characterized as a question of mixed fact and law ( Housen , at paras. 31 and 34-35 ). Legal errors made in the course of contractual

interpretation include “the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor” ( King, at para. 21). … [ 15 ] The trial judge’s findings under the tort of abuse of process involve the application of a legal test to the facts, potentially raising questions of law, fact and mixed fact and law. IV. ANALYSIS

A.

Interpretation of the Adjustment Clause? 1. The law of contract

interpretation [ 16 ] Before the trial judge began to interpret the Adjustment Clause, he correctly acknowledged that Sattva had set out the proper approach to contractual

interpretation, namely: [47 ] …The overriding concern is to determine “the intent of the parties and the scope of their understanding”… . To do so, a decision- maker 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.

Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning: No contracts are made in a vacuum: there is always a setting in which they have to be placed... .

In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating. (citations omitted) [ 17 ] The trial judge also referred to Weyerhaeuser Company Limited v Ontario (Attorney General) , 2017 ONCA 1007 at para 65 , which summarised the Sattva approach in these terms: (

i) determine the intention of the parties in accordance with the language they have used in the written document, based upon the “cardinal presumption” that they have intended what they have said; (ii) read the text of the written agreement as a whole, giving the words used their ordinary and grammatical meaning, 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; (iii) read the contract in the context of the surrounding circumstances known to the parties at the time of the formation of the contract. The surrounding circumstances, or factual matrix, include facts that were known or reasonably capable of being known by the parties when they entered into the written agreement, such as facts concerning the genesis of the agreement, its purpose, and the commercial context in which the agreement was made.

However, the factual matrix cannot include evidence about the subjective intention of the parties; and (iv) read the text in a fashion that accords with sound commercial principles and good business sense, avoiding a commercially absurd result, objectively assessed. [ 18 ] The Appellants take no issue with the trial judge’s identification of the law of contract

interpretation. 2. The positions of the parties at trial [ 19 ] To address the Appellants’ allegations of error in the trial judge’s

interpretation of the Adjustment Clause, it is important to understand what the parties’ positions were at trial. The trial judge summarized them as follows: [234] The plaintiffs assert that the words utilized mean what they say. The plain language of the SPA and the Disclosure Letter stated that any adjustment to the purchase price is limited to adjustments to the listed liabilities identified in

Schedule “C”, but not the listed assets. Further, only liabilities which exceed $75,000, and which are identified to the plaintiffs not later than February 1, 2010, are relevant for adjustment purposes. [235] QHR’s proposed construction of this stipulation [i.e., the Adjustment Clause] is much broader. It argues that the formula for the purchase must be kept in mind, i.e., the base price of $5 million + current assets – current liabilities = amount owing to the plaintiffs. QHR acknowledges that liabilities may only be adjusted if they amount to more than $75,000 and are discovered no later than February 1, 2010.

It goes on to submit that because no mention is made of “assets” in any of the references to adjustments in the documentation, assets of any amount may be adjusted. QHR also submits that, unlike adjustments to liabilities, there is no stipulated deadline for discovering adjustments to assets. [236] QHR asserts that the assets identified in

Schedule “C” were overstated by a total of $133,269.14, while the liabilities were understated by a total of $569,613.45. This means, in the aggregate, that required adjustments to the purchase price come to $702,882.59. [237] QHR submits further that when these adjustments are made, it has over-paid the plaintiffs in the amount of $41,320.53. This amount is arrived at by calculating the difference between the payments made to the plaintiffs to date and the total face value of the Promissory Notes: $3,007,494.10 - $2,314,875.34 = $692,618.76.

Since QHR calculates the aggregate adjustments amount to $702,882.59, the differential between this amount and what QHR has paid to the plaintiffs to date comes to $41,320.53 ($10,263.83 plus legal fees of $31,056.70 as permitted by Articles 8.10 and 8.11 of the SPA). 3. The trial judge’s

interpretation of the Adjustment Clause [ 20 ] Having the parties’ positions in mind and following the Sattva approach, the trial judge first determined what documents constituted the “entire agreement” between the Appellants and the Respondents, finding it was comprised of the SPA, the promissory notes and the Disclosure Letter. The trial judge then turned to consider the Adjustment Clause itself, which ostensibly addresses how adjustments could be made to the purchase price payable under the SPA. The trial judge described it and its place in the entire agreement as follows:

[226] The principal stipulation respecting adjustments to the purchase price is found in the Note to

Schedule “C”. As noted,

Schedule “C” served as the focus of negotiations leading up to QHR’s acquisition of Clinicare. For ease of reference, I reproduce it here (Exhibit P- 1, Tab 7): Any Price Adjustment per Clause 1.1(

c) and 2.2 if made due to underestimating the liabilities set out above shall be made only to the extent that the underestimate is greater than $75,000 and is discovered before 1 February 2010; any adjustment made will not be duplicated in the calculation of any indemnity obligation under clause 11.5. [227] References found within this Note are to various clauses of the SPA. For example, Clause 1.1(

c) refers to the definition of “Transaction” in the SPA. This clause defines “Transaction” to “mean the purchase of the Shareholder Assets, by Pubco [i.e., QHR] from the Selling Shareholders to consideration for the Asset Purchase Price”. [228] Clause 2.2 contains the definition of “Consideration”. The text of this particular clause is set out in its entirety in para. 139 above. For present purposes, it should be recalled that the purchase price for all the shares in Clinicare negotiated between Mr. Kanji [i.e., Clinicare’s CEO] and Mr.

Hildebrandt [i.e., QHR’s CEO] was $5 million. [229] Three similar references to adjustments can be found in attachments to the Disclosure Letter. [230] The first reference can be found in

Schedule “A” to the Disclosure Letter (Exhibit P-1, Tab 9) on page QHR110736. The relevant note on this page reads as follows: Unknown or undisclosed Liabilities Materiality $75,000.00 – Only until Jan. 31, 2010. No other adjustments to any of the other accounts. [231] The second reference can also be found in

Schedule “A” on page QHR110746. This page simply reproduces the chart which appears on page QHR110736. The note reads exactly as set out in the previous paragraph. [232] The third and final reference to adjustments can be found at page QHR117050, also in

Schedule “A” to the Disclosure Letter. This page is titled “Clinicare Corporation November 26th, 2009 – Due Diligence Confirmations”, and the relevant note reads exactly as the previous two notes relating to adjustments to the purchase found in the Disclosure Letter. [ 21 ] After reviewing the entire agreement, other documentary evidence and the testimony of witnesses, the trial judge interpreted the Adjustment Clause as meaning:

(1) The only adjustments to the liabilities identified in

Schedule “C” are relevant, this did not include uncircumscribed adjustments to Clinicare’s assets listed in

Schedule “C” as QHR suggested (at para 254).

(2) The only adjustments to Clinicare’s liabilities which exceed $75,000 are permissible (at para 255).

(3) Any proposed adjustments are limited to liabilities for which Clinicare was responsible as of November 30, 2009 (at para 256). This was the formal closing date for which QHR acquired Clinicare and any liability that came after that date would be the responsibility of QHR (at para 256).

(4) Any liabilities had to be “discovered” as of February 1, 2010. Additionally, those liabilities are limited to liabilities which resulted no later than November 30, 2009, any such adjustments QHR had to be “discovered” by it on or before February 1, 2010 (at para 258).

(5) The term “discovered” in this context requires that documented evidence of necessary adjustments had to be communicated to the plaintiffs no later than February 1, 2010 (at para 263). [ 22 ] As QHR had not communicated the details of any proposed adjustments to the Respondents prior to February 1, 2010, the trial judge dismissed the Appellants’ counterclaim for adjustments to the purchase price, holding that the Respondents were entitled to payment of the full balances owing under the promissory notes, plus accrued interest “in accordance with the interest rates set out in those Promissory Notes” (at para 465). 4. Allegations of error in the

interpretation of the Adjustment Clause a. In determining the “entire agreement” [ 23 ] Given the Sattva approach to contract

interpretation, the Appellants’ submission that the trial judge erred in law by finding that the Disclosure Letter formed part of the entire agreement between the parties must be addressed first in this appeal. [ 24 ] Setting the surrounding circumstances to one side for the moment, under Sattva a court interpreting a contract must determine the intention of the parties based on the language used in the written document, adhering to the cardinal presumption that the parties have intended what they have written.

This requires the interpreting court to read the text of the entire agreement, giving the words used their ordinary and grammatical meaning, in a manner that gives meaning to all of its terms. The Appellants’ allegation of error in the determination of what documents constituted the entire agreement between the parties takes on first-stage prominence because, if the trial judge erred in that determination, then his

interpretation of the Adjustment Clause would be brought fully into question, since it was plainly informed by the language of the Disclosure Letter and its attachments. [ 25 ] Before reviewing the trial judge’s findings, I must state that I am unpersuaded by the Appellants’ submission that the determination of what documents constitute the entire agreement between contracting parties is a question of law—it is self-evidently a mixed question of law and fact and, therefore, the trial judge’s conclusion is reviewable on the standard of palpable and overriding error.

In this case, the mixed nature of the question is manifest from the Trial Decision , where the trial judge addressed the entire-agreement

issue by writing only about the evidence: [219] At the outset, it is necessary to identify what constitutes the entire agreement in this case. There was disagreement between the parties on this issue. The plaintiffs argued that the three documents prepared and finalised at closing – the SPA, the Promissory Notes, and the Disclosure Letter – together form the agreement they reached with Mr. Hildebrandt and QHR respecting QHR’s acquisition of Clinicare. Respecting the Disclosure Letter, the plaintiffs assert that once Mr.

Hildebrandt signed the Disclosure Letter, on behalf of QHR, it formed part of the SPA. [220] QHR disagrees. It submits that only the SPA and the Promissory Notes constitute the entire agreement between the parties. QHR submits that it is not bound by the Disclosure Letter. It argues that although Mr. Hildebrandt signed the Disclosure Letter on December 4, 2009, acknowledging its receipt on behalf of QHR, it does not follow that QHR accepted the information set out in this letter as accurate.

QHR submits that its position is reasonable as much of the information set out in the Disclosure Letter pre-dated November 30, 2009. [221] On balance, I am persuaded that the Disclosure Letter does form part of the entire agreement between the plaintiffs and QHR. First, its principal objective as set out on the first page of that document is to apprise QHR of “facts and circumstances” required to be disclosed under the SPA or “which may be inconsistent with, or in contradiction to, the representations and warranties” made by Clinicare in the SPA.

To the extent there were such inconsistencies or contradictions, then the “Disclosure letter shall be deemed to qualify the Representations and Warranties”. See: Exhibit P-1, Tab 9, at QHR110732. [222] It is difficult to read language of this kind and not conclude that the Disclosure Letter qualifies as an integral component of the entire agreement between the plaintiffs and QHR. How else could it purport to modify or qualify the various representations and warranties contained in the SPA, itself? [223] Second, Mr.

Hildebrandt testified that upon receiving a copy of the Disclosure Letter, and prior to signing it on behalf of QHR, he was instructed by QHR’s legal counsel to review the document with care. He stated that he followed these instructions. Mr.

Hildebrandt is a sophisticated businessperson, and, as such, I find it incongruous that in these circumstances, when instructed by the QHR’s lawyer to scrutinize the Disclosure Letter carefully, he would think his signature would acknowledge receipt of this document, and nothing more. [224] As a result, when construing the agreement between the plaintiffs and QHR, I will have regard for the SPA, the various Promissory Notes, and the Disclosure Letter. [ 26 ] The Appellants have not pointed to any mistaken application of a principle of contract law in this reasoning.

Moreover, they have not identified a palpable and overriding error in the trial judge’s findings in that regard.

I acknowledge, however, their argument that the Disclosure Letter had not been “negotiated and agreed to by the parties”, as the SPA had been; however, that fact does not necessarily mean that it did not form part of the entire agreement. [ 27 ] Although he did not refer to the SPA in his analysis of this issue, the trial judge’s finding that the Disclosure Letter was part of the entire agreement between QHR and the Respondents is thoroughly supported by the relevant provisions of the SPA, which defines “Agreement” and “Disclosure Letter” under clause 1.1: (a) “Agreement” shall mean this Agreement, and all the exhibits, schedules and other documents attached to or referred to in this Agreement , and all amendments and supplements, if any, to this Agreement; … (r) “Disclosure Letter” shall mean the letter dated the same date hereof delivered by [Clinicare] to [QHR], in a form accepted by [QHR], with respect to certain matters in this Agreement; (emphasis added) [ 28 ] The SPA also contains what is known as an “entire agreement clause” that states: 12.5 Entire Agreement.

This Agreement, the Schedules attached hereto and the other specifically requited [ sic ] or agreed documents in connection with this transaction contain the entire agreement between the parties with respect to the subject matter hereof and supersede all prior arrangements and understandings, both written and oral, expressed and implied, with respect thereto. Any preceding correspondence or offers are expressly superseded and terminated by this Agreement. [ 29 ] Not unimportantly, clause 12.11 of the SPA reinforces the cardinal presumption of contract

interpretation: 12.11 Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. [ 30 ] With those provisions in mind, I note the term Disclosure Letter is itself found in the SPA in the definition of “Assets” (clause 1.1(b)) and in the representations and conditions clauses of the SPA, including as to the issued and outstanding shares in the capital of Clinicare (clauses 3.3(

b) and (c)); encumbrances of Clinicare’s assets (clause 3.12); changes in director and officer compensation (clause 3.15); material contracts and intellectual property assets (clause 3.19); the payment of employee salaries, etc. (clause 3.21); general material contracts (clause 3.23); guarantees and indemnities granted by Clinicare (clause 3.24); brokerage fees (clause 3.25); material contracts with change of control provisions (clause 8.7); and claims and amounts owing to Clinicare’s the employees and consultants (clause 8.9).

Most of these references are to the effect that the relevant circumstances are or remain as was disclosed to QHR during the due diligence process “except as set forth in the Disclosure Letter”. [ 31 ] To summarise what I see as the plain meaning of the SPA, the entire agreement between QHR and the Respondents includes the “other documents attached to or referred to in this Agreement [i.e., the SPA]”. The Disclosure Letter is referred to numerous times in the SPA as a deliverable required of the Respondents or Clinicare at closing.

The Disclosure Letter is therefore, in the ordinary and grammatical meaning of the words used by the parties, demonstrably part of the entire agreement between the parties, just as the trial

judge concluded. [ 32 ] In short, there is no merit to the Appellants’ contention that the trial judge erred when he found that the Disclosure Letter formed part of the entire agreement between QHR and the Respondents. b. In the identification and application of the circumstances known to the parties at the time of contract formation [ 33 ] Under Sattva , interpreting courts are to read a contract in the context of the circumstances known (or reasonably capable of being known) by the parties at the time of its formation.

This allows an interpreting court to have regard for the purpose of the agreement and the commercial context in which it was made, etc., when interpreting it. Under this rubric, the Appellants assert that the trial judge’s

interpretation of the Adjustment Clause is not consistent with the circumstances known to the parties at the time of contract formation because it: (

a) does not allow for adjustments for changes in the amounts of Clinicare’s assets; and (

b) requires QHR to have communicated adjustments to the Respondents before February 1, 2010. i. The surrounding circumstances identified by the trial judge [ 34 ] In the Trial Decision , the trial judge set out ten facts or circumstances that he saw as supporting his

interpretation of the Adjustment Clause, writing: [259] The factual matrix surrounding the formation of the SPA, in my view, supports my

interpretation of the adjustments provision found at

Schedule “C” of the SPA, and at

Schedule “A” of the Disclosure Letter. This factual matrix includes evidence of the following: a. In 2009, Clinicare’s financial situation was perilous. Its Board had determined the only way to secure any kind of sustainable future for the company was to sell it; b. QHR desired to become a “player” in the EMR industry in Canada. QHR’s representatives were familiar with Clinicare’s reach across Canada (and into the United States), in part, because Mr. Chapman previously had been employed by Clinicare.

His intimate knowledge of Clinicare’s operations, and clientele, though dated, gave QHR a more complete understanding of the company than it would otherwise have had; c. Both QHR and Clinicare were strongly motivated to ensure that this acquisition proceeded quickly. Clinicare needed a buyer. QHR wanted to increase its presence in the EMR industry. An expeditious way of achieving this would be to acquire as many of Clinicare’s clients as possible; d. Mr. Hildebrandt believed QHR’s acquisition of Clinicare could proceed expeditiously. In QHR’s Expression of Interest letter dated August 28, 2009, he advised Mr.

Kanji that QHR was familiar with Clinicare’s operations, and “in a position to act very quickly in completing our due diligence and completing an acquisition transaction in a timely fashion” (Exhibit P-1, Tab 1, at page CIC004534); e. QHR approached the due diligence process “very seriously”. It took place in two phases over the course of November 2009 with almost three weeks separating the two sessions. In between there was time to determine what QHR should focus on during the second phase of due diligence. Mr.

Hildebrandt made it clear to the members of QHR’s due diligence team the areas of further inquiry he deemed important to pursue in the second phase of the due diligence process. See: Exhibit D-66; f.

Schedule “C” to the SPA contemplated that appropriate adjustments would be addressed within a period of two months following the closing date. This relatively short timeframe did not allow sufficient time for a formal audit of Clinicare’s financial affairs to be conducted; however, it did permit some precision in the numbers of the proposed adjustments; g. The amounts payable to the various plaintiffs set out in the Promissory Notes, while subject to some adjustments, were certainly enough for QHR to provide extensive security agreements and guarantees in those amounts; h.

The Promissory Notes escalated to a high rate of interest within 60 days of the date of the Promissory Notes, i.e. February 2, 2010 two months after QHR acquired Clinicare. This escalating rate of interest supports the view that the parties intended that the transaction would be completed, and all monies paid to the plaintiffs no later than early February 2010; i.

The juxtaposition of February 1, 2010 (the date all adjustments had to be “discovered”) and February 2, 2010 (the date contemplated for the final payments to the plaintiffs) – dates deliberately chosen by the parties – demonstrates that they anticipated any adjustments to the purchase price would be resolved in fairly short order; and j. The SPA did contemplate an audit in accordance with GAAP for only certain matters, i.e. monies owed to Dennisco and Dansco [i.e., two of the Respondents]. However, it did not stipulate such an audit respecting adjustments proposed by QHR.

As a result, it would seem that no such audit was either contemplated or required. [ 35 ] The Appellants assert that each of these facts is erroneous and does not support the trial judge’s

interpretation of the Adjustment Clause. ii. The errors alleged in the trial judge’s assessment of the surrounding circumstances [ 36 ] Although there is more to it, the Appellants’ fundamental position at trial was that the Adjustment Clause allowed for adjustments to the purchase price based on differences QHR had “discovered” in the amounts of Clinicare’s assets and liabilities from that which had been disclosed to QHR during the transaction. They submit that the trial judge misinterpreted the Adjustment Clause as applying only to liabilities because he erroneously disregarded the fact that

Schedule C to the SPA contained lists of assets and of

liabilities. They further say he failed to account for (or, if taken into account, failed to do so properly) the circumstances surrounding contract formation that were relevant to the issue of whether the parties had a mutual intention to adjust for assets as well as liabilities. [ 37 ] Grouped and paraphrased below are the Appellants’ specific allegations of error in the trial judge’s assessment of the circumstances known to QHR and the Respondents at the time of contract formation relevant to his

interpretation of the Adjustment Clause. They allege that the trial judge erred by: (

a) inferring from Clinicare’s “perilous” financial situation that it had to be sold; when—if that evidence were properly apprehended—it meant that a prudent purchaser would want to verify Clinicare’s financial state post-closing, which the Appellants say favours a finding that the parties intended to adjust for both assets and liabilities; (

b) finding that QHR wanted to become a “player” in the EMR industry and was familiar with Clinicare’s operations; when that finding is inconsistent with the fact that QHR’s subsidiary, Optimed, was already involved in that industry—the Appellants acknowledge, however, that “it is not clear how this bears on the correct

interpretation of the adjustments clause”; (

c) failing to infer from the fact that the parties were all motivated to quickly complete the transaction “that the parties intended to sort out the adjustments after closing”; (

d) illogically relying on the fact (but correctly finding) that QHR’s chief executive officer, who had negotiated the transaction on its behalf, believed the transaction could proceed expeditiously; (

e) illogically relying on the fact (but correctly finding) that QHR had taken the due diligence process very seriously because “it is not clear how [that conclusion] reinforces a narrow

interpretation of the adjustments provision”; (

f) inferring from

Schedule C that “appropriate adjustments would be addressed within a period of two months following the closing date”, which timeframe would not allow “sufficient time for a formal audit” (at para 259(f.))—the Appellants acknowledge that this “is not a ‘surrounding circumstance’ per se ” but point out that they never argued that

Schedule C contemplated a formal audit; rather, they simply proposed external verification of the adjustments they thought were already required under the SPA; (

g) misapprehending the importance—in the

interpretation of

Schedule C—of the security interests granted by QHR to the Respondents to secure the promissory notes because such security is commonplace in commercial transactions, particularly where payment of a substantial portion of the purchase price is deferred; (

h) inferring from the quickly escalating interest rate payable under the promissory notes that outstanding balances would be paid in full by February 2, 2010, and then juxtaposing that inference with the February 1, 2010 drop-dead date for discovery of adjustments to find that “the parties anticipated any adjustments to the purchase price would be resolved in fairly short order” (at para 259(i.)) because, as the Appellants argue, the timing of payments under the promissory notes does not establish that only liabilities (and not also assets) could be adjusted; (

i) observing that the SPA expressly provided for an audit only for matters related to two of the Respondents’ corporations but not with respect to adjustments to the purchase price; and (

j) disregarding or overlooking other surrounding circumstances relevant to the

interpretation of the Adjustment Clause, including evidence that: (

i) QHR had raised the issue of adjustments to the purchase price at the start of negotiations in September of 2009; (ii) adjustments to the purchase price were contemplated by the LOI signed in October of 2009, which stated that all amounts would be confirmed on the closing date; and (iii) a media release issued by QHR on November 9, 2009, contemplated adjustments to the purchase price for net working capital, which the Appellants say necessarily entailed adjusting for assets as well as liabilities. [ 38 ] Whether these alleged errors are considered individually or collectively, the Appellants argue that the surrounding circumstances identified by the trial judge do not support his

interpretation of the contract—i.e., that adjustments to the purchase price were limited to adjusting for liabilities and, even then, only if the adjustments were identified and communicated to the Respondents before February 1, 2010. iii. No legal or palpable error in the trial judge’s assessment of the surrounding circumstances [ 39 ] None of the Appellants’ challenges to the trial judge’s assessment of the factual matrix amount to a legal error in his fact- finding process or a palpable error in his findings of fact or on issues of mixed fact and law.

It is true that the inferences the Appellants say the trial judge could have or should have drawn were available to him but his failure to draw those inferences does not alone constitute a legal or a palpable error on his part. The plain fact is that the trial judge’s findings and inferences are supported by the evidence in this case and, therefore, they are not palpably in error. [ 40 ] Furthermore, the trial judge’s alleged failure to take into account the LOI and the media release when interpreting the Adjustment Clause does not amount to an error of law, as the Appellants have argued.

While the factual matrix includes “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man”, it does not generally include evidence of previous negotiations between the parties and of the parties’ subjective intentions ( Mosten Investments LP v The Manufacturers Life Insurance Company (Manulife Financial) , 2021 SKCA 36 at para 80 , [2021] 9 WWR 1, citing Investors Compensation Scheme Ltd. v West Bromwich Building Society , [1998] 1 WLR 896 (HL) at 913) .

In that regard, the LOI is undoubtedly the record of previous negotiations between QHR and the Respondents that, by its own terms, is not part of the entire agreement between the parties, did not bind the parties, and was superseded by the SPA. It is, therefore, not a legal error for the trial judge

to have given the LOI no weight when interpreting the Adjustment Clause. [41] Although clearly not a contract document, much same may be said about the media release, which QHR issued well before theeffective date of the SPA—i.e., it is unsurprising (and not an error) that the trial judge made no reference to it when interpreting theAdjustment Clause.

This is because the media release is extrinsic evidence of QHR’s subjective intention, which “has ‘no independentplace’ when considering the circumstances surrounding the formation of a contract” (S.A. v Metro Vancouver Housing Corp., 2019 SCC 4at para 30, 430 DLR (4th) 621). [42] Even if we assume that both the LOI and media release are properly part of the surrounding circumstances, it cannot be saidthat the trial judge overlooked them or was unaware of what they said about adjustments.

In the Trial Decision, he quoted passages fromeach document, including reproducing extracts that spoke about adjustments to the purchase price. Nonetheless, he did not refer to the LOIor media release when interpreting the Adjustment Clause—and I see no error in this—even if they form part of the surroundingcircumstances.

This is because of how the Appellants say the trial judge ought to have used those documents when interpreting theAdjustment Clause, i.e., to effectively write the words “or overestimating the assets” and “or overestimate” into the Adjustment Clause, sothat it reads: …Any Price Adjustment per Clause 1.1 (

c) and 2.2 if made due to underestimating the liabilities [or overestimating the assets] set outabove shall be made only to the extent that the underestimate [or overestimate] is greater than $75,000 and is discovered before 1 February2010; any adjustment made will not be duplicated in the calculation of any indemnity obligation under clause 11.5. [43] While the Appellants do not put it in such stark terms, the use of the LOI and the media release to write a wholly new conceptinto the Adjustment Clause would run squarely into conflict with the fact that the utility of the factual matrix “is limited by the legalprinciple that contractual

interpretation must remain grounded in the text of the contract so as to avoid effectively creating a newagreement between the parties” (Teal Cedar Products Ltd. v British Columbia, 2017 SCC 32 , 2017 SCC 342 at para 63, [2017] 1SCR 688). The text of a contract cannot be overruled by the surrounding circumstances (Sattva at para 60; Resolute FP Canada Inc. vOntario (Attorney General), 2019 SCC 60 at para 78, [2019] 4 SCR 394).

Therefore, even if the LOI and the media release are properlyconsidered part of the surrounding circumstances, the trial judge could not have used those documents to overrule the text of theAdjustment Clause by adding in the words “or overestimating the assets” so as to greatly expand its breadth beyond what the parties hadwritten. [44] In sum, I find no legal error or palpable error of fact or of fact and law in the trial judge’s finding that the Adjustment Clauseonly applied to current liabilities. iv.

No palpable error in the meaning given to the word discovered [45] The Appellants submit that the trial judge misinterpreted the word discovered in the Adjustment Clause when he found that itmeant that differences in the amounts of adjustable items had to be identified and communicated in writing by QHR to the Respondents.The Appellants advance this allegation of error in association with the Sattva principle that the text of a commercial contract should beread in a way that corresponds with sound commercial principles and good business sense and that avoids commercially absurd results. [46] When interpreting the meaning of discovered in the Adjustment Clause, the trial judge wrote: [262] The plaintiffs assert that the position advanced by QHR is not only interpretatively impoverished, it is commercially unreasonable.Mere discovery, they say, is hardly sufficient in the context of a sophisticated commercial transaction like QHR’s acquisition of Clinicare.Moreover, Mr.

Hildebrandt by communicating to Dr. Haver in the vaguest of terms that QHR believes some “balance sheet adjustments”are warranted does not satisfy the requirement that adjustments are to be made. [263] I agree. In my opinion, the term “discovered” in the context of this transaction requires that documented evidence of necessaryadjustments had to be communicated to the plaintiffs no later than February 1, 2010. Otherwise, the situation is one where QHR says it“discovered” necessary adjustments by that date in compliance with the adjustment stipulation.

Yet it failed to provide the plaintiffs amore detailed and accurate statement of those adjustments until the audited statement prepared by MNP on or about May 24, 2010. [264] The

interpretation QHR urges me to adopt is not commercially reasonable in this context because, in my opinion, it does not makegood business sense – the lodestar for divining the meaning of a commercial contractual instrument.

Nor is it consistent with the factualmatrix of this contract which indicated the parties desired that this transaction be completed expeditiously and without undue delay. [47] In simple terms, the Appellants say the trial judge’s finding that discovered required them to communicate documentedevidence of adjustments to the purchase price goes beyond the ordinary and grammatical meaning of that word.

They do not, however,offer an alternate meaning of the word or point to any palpable error in the trial judge’s findings, other than to say just that the trial judge’sinterpretation of discovered is not the ordinary and grammatical meaning. [48] I find no palpable error in the trial judge’s

interpretation of discovered. Sattva directs an interpreting court to “read the contractas a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to theparties at the time of formation of the contract” (at para 47, emphasis added). As the Trial Decision makes clear, this is exactly what thetrial judge did. Further, having reviewed the trial judge’s

interpretation of the Adjustment Clause and the factual matrix that he consideredrelevant to this issue, I cannot find fault with his construal of the word discovered in the context of the SPA and the circumstancessurrounding contract formation as meaning that QHR had to notify the Respondents of proposed adjustments to the purchase price beforeFebruary 1, 2010. Furthermore, I am not persuaded that the trial judge’s

interpretation fails to correspond with sound commercialprinciples and good business sense and, objectively speaking, it does not—in my view—produce a commercially absurd result. [49] Lastly, I will simply say that the conduct of contracting parties that occurs post-contract formation is, self-evidently, not acircumstance known to the parties at the time of contract formation. 5. Conclusion on contract

interpretation

[50] On the whole of it, I am unpersuaded that the trial judge erred in law by omitting to consider, or by not giving any weight to,what light the LOI or the media release might have shed on the mutual intention of the parties under the Adjustment Clause. I alsoconclude that the findings of fact and inferences of fact drawn by the trial judge from the circumstances surrounding contract formationwere not palpably in error. In short, I am not persuaded that the trial judge committed an error of law or of fact in his assessment of thecircumstances known to the parties at the time of contract formation or in the application of those circumstances in his

interpretation of theAdjustment Clause. I would dismiss this ground of appeal. B. The tort of abuse of process [51] In their counterclaim, the Appellants asserted that the Respondents had tortiously issued and served 53 pre-garnisheesummonses on physicians and medical clinics that were customers of Optimed. The Appellants said that the issuance of the summonseswas abusive in the context of the Respondents’ litigation because Optimed had never been indebted to the Respondents and it was notparty to the Respondents action against QHR.

In the Trial Decision, the trial judge paraphrased the Appellants’ position as follows: [397] … that the plaintiffs employed a legal proceeding, namely the pre-judgment garnishee process to achieve an objective which thelegal process, including this lawsuit, did not permit them to obtain. This objective was to inflict significant and lasting reputational harm toOptimed, QHR’s wholly owned subsidiary. … [52] At trial, QHR alleged that four facts supported its counterclaim in tort against the Respondents: (

a) the Respondents, having agreed in the SPA that British Columbia was the jurisdiction for doing so, brought their claimsagainst the Appellants in Saskatchewan; (

b) the Respondents had issued summonses that did not comply with the formal requirements of The Attachment of Debts Act; (

c) the Respondents’ objective in issuing the summonses was to create a fund to underwrite any judgment they obtained againstQHR in the litigation; and (

d) the Respondents’ true motivation for issuing the summonses was to damage Optimed’s commercial reputation. [53] The Respondents disputed each of these allegations and, addressing the facts alleged by the Appellants, they asserted that: (

a) it was too late in the litigation to raise the issue of jurisdiction, noting that the Appellants had not brought a forum conveniensapplication to have the action moved to British Columbia; (

b) they had issued the summonses to collect the debts owed and guaranteed by the Appellants under the promissory notes, whichwas the objective of their action against the Appellants; and (

c) they had not, at the time they issued the summonses, appreciated the distinction between QHR and Optimed. [54] When the trial judge instructed himself on the tort of abuse of process and what the party making such a claim must prove, hecorrectly recognised the four elements of the tort are those set forth in the reasons of Jackson J.A. in Barton v Potash Corporation ofSaskatchewan, 2013 SKCA 141, 369 DLR (4th) 275: [95] In my opinion, however, this evidence falls short of demonstrating the tort of an abuse of process. I rely upon this

summary of therequirements to establish the tort of abuse of process: So the cause of action is alive, both in England and in Canada. Its essential requirements, if we may reiterate them, appear to be: (

a) The defendant must have used the legal process (whether with or without reasonable probable cause, the viability of his case beingirrelevant); (

b) He must have done so for a purpose other than that which the process in question is designed to serve, that is, for a collateral andillicit purpose; (

c) He must have done some definite act or made some definite threat in furtherance of the purpose; and, (

d) Some measure of special damage must be shown. (See: John Irvine, “The Resurrection of Tortious Abuse of Process” (1989), 47 CCLT 217 at 219-20)). [96] Some courts collapse this four-part test into two: (

i) a collateral and improper purpose; and (ii) an overt and definite act or threat infurtherance of an illegitimate purpose (see: Canadian Pacific International Freight Services Ltd. v Starber International Inc. (1992), 12CCLT (2d) 321 at 324-25, 44 CPR (3d) 17 (Ont Ct J (Gen Div.)); Metrick v Deeb (2003), (ON CA), 172 OAC 229 at230-31, 16 CCLT (3d) 298 (Ont CA); and Apotex Inc. v Ontario (Minister of Health and Long-Term Care) (2005), (ON CA), 204 OAC 275, 42 CPR (4th) 392 at 399 (Ont CA)).

It is usually upon the requirement of an “overt act” that claims for abuse ofprocess fail. (See also: Beckingham v Sparrow (1977), 2 CCLT 214 (Ont H Ct J)) (See also, Harris v GlaxoSmithKline Inc., 2010 ONCA 872 at paras 27–31, 106 OR (3d) 661; and Oei v Hui, 2020 BCCA 214 at paras 77–79). [55] Considering the evidence as it related to the alleged tort, the trial judge found that the Appellants had failed to prove two of thefour elements of the tort.

Principally, he was not persuaded on a balance of probabilities that the Appellants had proven that theRespondents had used the pre-judgment garnishee process for a purpose other than that which it was designed to serve, i.e., for a collateraland illicit purpose. He gave three reasons for this:

[411] Second, the issuance of the impugned garnishee summonses cannot be said to relate to matters “outside of the ambit of the litigation”, to quote Saunders J.A. in Oei . The testimony from the plaintiffs’ witnesses on this aspect of the action did not waver, they consistently stated that the objective behind issuing these summonses was to obtain some of the monies owed to the plaintiffs by QHR. Moreover, once the plaintiffs learned of the inaccuracies and errors contained in those summonses, no action was pursued to enforce them.

I agree with the plaintiffs that these summonses were issued solely in respect of the outstanding amounts QHR owed them under the Promissory Notes. That dispute did not fall outside this litigation. Indeed, it is the very essence of this lawsuit. [412] Third, the evidence does not support QHR’s contention that the plaintiffs’ motivation in issuing those summonses was malevolent, namely, to damage the commercial reputation, and market share of QHR and Optimed.

Plainly, I can find no direct evidence to this effect from the witnesses. [413] Nor, in my view, is there any indirect evidence which leads me to conclude that this was the plaintiffs’ motivation. Mr.

Chapman’s testimony respecting the decline in the sales of Accuro software [i.e., Optimed’s product] in the months after news of the issuance of the summonses, and the commencement of this lawsuit was made public, sought to make this link. [ 56 ] The trial judge also concluded that the Appellants had failed to prove that they had suffered a “measure of special damages”, stating that the evidence established that the connection between the Respondents’ impugned actions and the Appellants’ claimed damages was “tenuous at best” and “purely speculative” (at para 414). [ 57 ] Although the Respondents argue that the trial judge also rejected the Appellants’ proof of a “definite act” or “definite threat”, I am not of like mind.

I say that because the trial judge found that “by utilising the garnishee summons process in the way they did , the plaintiffs’ conduct may be characterized as careless, ham-handed, and ill-considered” (at para 406; emphasis added) and that the Respondents “should have been more prudent when compiling the initial list [of garnishees], and more scrupulous when attempting to identify those particular clinics who had been clients of Clinicare” (at para 407).

Further, he found that the Respondents’ affiant “was relatively cavalier in signing those 53 pre-judgment garnishee summonses without making even a minimal attempt to verify the correctness of the information set out in them” (at para 408).

I infer from this that the trial judge found that the manner in which the Respondents had availed themselves of the pre-judgment garnishee process constituted a definitive act and satisfied that element of the tort of abuse of process. [ 58 ] On my reading of the Trial Decision , it is also clear that the trial judge rejected the Appellants’ counterclaim under the tort of abuse of process because it had not been made out on the evidence. Even though the Appellants’ assert that the trial judge erred in law when he rejected their counterclaim, I can see no legal error in his reasons.

He correctly identified the elements of the tort and then properly proceeded to assess whether the Respondents had committed that tort by examining what the evidence established. [ 59 ] Turning to error of fact or mixed fact and law, the trial judge dismissed the counterclaim principally because there was no direct or indirect evidence to support the Appellants’ assertion that the Respondents had had a collateral or illicit purpose for issuing the garnishee summonses.

He found, instead, that their conduct was “careless, ham-handed, and ill-considered”, less than prudent and “relatively cavalier” and that the garnishee summonses “cannot be said to relate to matters ‘outside the ambit of the litigation’” (at paras 406, 408 and 411). Although they have alleged an error of law, the Appellants’ appeal under this ground actually invites this Court to reweigh the evidence and to draw the inference afresh that the Respondents did have a collateral or illicit purpose for issuing the garnishee summonses.

That, however, is not something we can do in the absence of palpable and overriding error in the trial judge’s findings ( Housen at para 22 ). [ 60 ] In this case, the Respondents’ witnesses confirmed that they had intended to garnishee physicians and clinics that were using Optimed’s software but testified that they did not understand that a subsidiary of QHR owned that software. Their affiant testified that, had he known that the affidavits were inaccurate, he would not have sworn them.

Like the trial judge, I can see no direct evidence of an improper purpose on the part of the Respondents in their issuance of the garnishee summonses. As such, the trial judge would have had to infer that the Respondents had a collateral or illicit purpose from the circumstantial evidence relevant to that question. While it may have been open to him to have drawn the inference sought by the Appellants, that alone does not establish on appeal that the inference he did draw is erroneous.

This is particularly so because the evidence supports the inference the trial judge drew, namely, that the Respondents had mistakenly and carelessly believed that they were garnisheeing QHR’s clients. As the majority of the Court in Housen observed: [22] …Although we agree that it is open to an appellate court to find that an inference of fact made by the trial judge is clearly wrong, we would add the caution that where evidence exists to support this inference, an appellate court will be hard pressed to find a palpable and overriding error.

As stated above, trial courts are in an advantageous position when it comes to assessing and weighing vast quantities of evidence. In making a factual inference, the trial judge must sift through the relevant facts, decide on their weight, and draw a factual conclusion. Thus, where evidence exists which supports this conclusion, interference with this conclusion entails interference with the weight assigned by the trial judge to the pieces of evidence. [23] We reiterate that it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence.

If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion.

The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts. … (emphasis in original) [ 61 ] Put briefly, I conclude this Court is not entitled to interfere with the trial judge’s findings of fact under the tort of abuse of process because they are not clearly wrong or palpably in error. [ 62 ] I would also dismiss the Appellants’ argument that the trial judge erred when he found they had failed to prove that they had suffered a measure of special damages under largely the same reasoning.

As noted, the trial judge found the Appellants’ evidence of damage was “tenuous” and “purely speculative” and, having reviewed it, I am unable to disagree. There is no palpable error in the trial judge’s finding in this regard.

[ 63 ] In sum, I am not persuaded that the trial judge erred in law or committed a palpable and overriding error of fact when assessing the Appellants’ counterclaim under these two elements of the tort of abuse of process. To be successful at trial, the Appellants had to prove all four elements of the tort of abuse of process. Given that I find no basis to interfere with the trial judge’s conclusion that the Appellants had failed to prove two of the required elements of the tort, there is no need to consider any other aspect of this ground of appeal. [ 64 ] I would dismiss this ground of appeal. C.

Interest payable under the promissory notes [ 65 ] In their argument under this ground, the Appellants state that, if this Court finds that the trial judge erred in his

interpretation of the Adjustment Clause and remits this matter, and “If the Trial Judge accepts the price adjustments claimed by the Appellants following a remittance, this may be an ‘exceptional circumstance’ warranting relief from the contractual interest rate”. That is, this ground becomes a live issue in this appeal only if we are inclined to grant the Appellants’ first ground of appeal. [ 66 ] Accordingly, as I would not grant the appeal under the first ground, there is no need to address this ground of appeal. V.

CONCLUSION [ 67 ] I would dismiss the appeal with one set of costs to the Respondents, payable in the usual way. “Caldwell J.A.” Caldwell J.A. I concur. “Whitmore J.A.” Whitmore J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.