Transform Compost Systems Ltd. v. Jayendee Farms Ltd.

2011 BCSC 1933 Transform Compost Systems Ltd. v. Jayendee Farms Ltd. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Transform Compost Systems Ltd. v. Jayendee Farms Ltd., 2011 BCSC 1933 Date: 20111118 Docket: S135097 Registry: New Westminster Between: Transform Compost Systems Ltd. and Transform Plant Products Inc. Plaintiffs And Jayendee Farms Ltd., John Doppenberg and Diana Doppenberg Defendants And Transform Compost Systems Ltd. and Transform Plant Products Inc. Defendants by way of Counterclaim Before: The Honourable Mr. Justice Brown Oral Reasons for Judgment Counsel for the Plaintiffs and Defendants by way of Counterclaim appearing by teleconference: D.A.T. Moseley Counsel for the Defendants appearing by teleconference: I.D. MacKinnon Place and Date of Trial/Hearing: Chilliwack, B.C. November 16, 2011 Place and Date of Judgment: New Westminster, B.C. November 18, 2011 [1] THE COURT: The plaintiff, Transform Compost Systems Limited and Transform Plant Products Inc., is in the business of producing a variety of compost-based products. The defendant, Jayendee Farms Ltd. is owned by John Doppenberg and Diana Doppenberg. Jayendee owns about 19 acres of land on Gladwin Road in Abbotsford, British Columbia, and has used the land for hog and pig farming as well as growing trees. Transform has applied for summary judgment. It asks that I declare the defendants have breached a July 8, 2011, agreement the parties made to settle the plaintiffs' claim and the defendants' counterclaim. It asks, as well, that I enforce the settlement agreement and restrain and enjoin the defendants from further breaching it. Transform sought other orders, but it is not necessary to consider those now. [2] The defendants also sought orders. They ask that I order release of a certificate of pending litigation numbered BB1957787 which Transform lodged against the farm. They also seek an order that the plaintiffs post security for their costs in the action. Apart from hardship grounds, they point to statements the plaintiffs have made confirming they have no money, but depending on how I dispose of Transform's application, it may not be necessary to deal with the defendants' application and, in any event, submissions were not concluded on that issue as at the last hearing. [3] I should also note that the defendants have also raised the threshold question of whether some of the questions before the court are suitable for summary disposition. The defendants say some of the questions, such as who owns some equipment stored on pallets on the defendants' farm, are unsuitable for summary disposition. [4] I ought to mention, as well, that because Mr. and Mrs. Doppenberg were not parties to the settlement agreement, the defendants say they are not proper defendants and counsel for them is highly critical of their inclusion as defendants. The defendants will have to have that question decided another time. [5] The parties' business dealings began in 2004. Transform was then, as well, in the business of transforming manure into compost. Since part of the defendants' business, farming business, was managing manure, their mutual interests in handling animal waste formed a natural basis for a business relationship. There is no need, however, to delve into the details of the parties' contractual relationship. They do not agree on the details of it or on significant aspects of the history of their business dealings which is, of course, what led eventually to this litigation. Suffice to say that for various reasons, their relationship soured and their differences merged into this litigation. [6] The parties agree a July 8, 2011, letter from the solicitors for Transform to solicitors for the defendants contains the terms of the settlement. They disagree on the correct interpretation of some of the clauses in it as contained in the letter dated July 8, 2011, from Gregory van Popta to Ian MacKinnon of Robertson Downe and Mullally, who was representing the parties at the time and both firms continue to do so. I am going to read this into the record: Further to your letter dated July 7, 2011, I confirm that our client is willing to settle the matter promptly on the following terms: 1. Transform and your clients would sign a mutual release of all claims and a consent dismissal order . . . and Transform's counsel would sign a release of the CPL [referring, of course, to the certificate of pending litigation]. The Mutual Release and [Consent Dismissal Order] and the Release of CPL would be delivered to RDM Lawyers on undertakings consistent with the terms of this settlement. 2. Transform would be permitted immediate ([that is] on signing this letter agreement) and unrestricted access to the property until October 15, 2011 to remove without damage to your clients' property: (a) all compost inventory and ingredients; (b) the worms, worm casting inventory and worm harvesting equipment (these items would need to be removed by Saturday, July 23rd, 2011); and (c) any other equipment, whether detached or affixed to the Property acquired by Transform. 3. In the event your clients sell the Property prior to Transform having removed the foregoing products and equipment, Transform's right to access the Property and remove the foregoing products and equipment would be secured with a short-term lease registered against the property or short-term lease acknowledged by the purchaser. 4. There is a concern with damage to equipment caused by equipment being affixed to the Property. Your clients [this would be referring to the defendants] will immediately grind all bolts on such equipment (without damage to such equipment) to ensure that it can be removed without any damage. 5. Your clients would return the greenhouse structure to the Hog Industry Development Fund or in the alternative provide Transform with a full indemnity in favour of Transform for any compensation sought by the [Hog Industry Development Fund] or any other party associated with the [Hog Industry Development Fund] related to the greenhouse. 6. Your clients would pay to transform $120,000 for lost business and damage to market reputation suffered and reimbursement of actual legal costs incurred due to the actions of your clients during the past several months. We estimate that if this matter is settled promptly and on these terms Transform's actual legal costs would be less than $20,000; 7. [Your clients would repay to Transform -- number 7, I should say --] Your clients would repay to Transform: (a) the $5,500 of payments made by Diana Doppenberg without Transform's authorization or approval; (b) the $5,596.84 invoice from Eric Peterson Land Surveying paid by Transform for a survey of the property; (c) the $6,950.82 invoice from Wedler Engineering paid by Transform for engineering work related to the property; and (d) the $61,500.00 ConWest invoice for building the berm and removing trees on the property. 8. Interest will accrue on the payments itemized in paragraph 6 and 7 at 8% [per annum] from July 4, 2011. 9. [The mutual release -- number nine] The Mutual Release and [Conditional Dismissal Order -- Consent Dismissal Order] and the release of [the certificate of pending litigation] would need to be finalized, signed and delivered by Friday, July 15, 2011 at 11:00 AM. [7] I should explain that some of these terms I have mentioned or read address the existence of equipment and structures and services which Transform erected on the farm, or modified it to some extent, and Transform says these constitute improvements to the property for which the plaintiffs ought to compensate it. The defendants have denied these changes and modifications constitute improvements and they maintain they have -- or will, occasion them considerable loss. I will not be commenting on evidence relating to this, but mention it here as an aside to point out that, in any future litigation, nothing I may say in these reasons bears on the correctness of either party's litigation positions. The parties' applications have tasked me with interpretation of their settlement agreement and their respective obligations under it and, to do this, I do not need to make any findings on the merits of the parties' underlying claims. [8] Returning again to the contract itself, the parties agree the critical clause is para. 10 which reads: 10. The parties anticipate that the sale of the farm will take place within 15 days of the City of Abbotsford awarding the Food Waste Contract. The payments itemized in paragraph 6-8 would be paid concurrently with the sale of the farm (but no later than by October 31, 2011) and failing any sale by October 31, 2011 this letter agreement will be null and void, the Release of [the certificate of pending litigation] will be returned to Transform's counsel unregistered and the Mutual Release and [Consent Dismissal Order] will be rendered "void". If the foregoing is acceptable, please endorse a copy of this letter and return it to me by email. And a copy of the letter was endorsed. [9] The main questions are: 1. how should the word "any" be interpreted; 2. were the defendants obligated to use their best efforts to sell the property before October 31, 2011; 3. if so, did this obligation extend only to completion of the anticipated Toews purchase or to pursuing all potential sales; 4. depending on how the first two questions are answered, did the defendants exercise best efforts in either of these instances; 5. did Transform breach the agreement in such ways as to justify the actions the defendants took of demanding further rent from Transform thus preventing it further access to the farm to remove equipment it still had on the farm or, conversely, did the defendants' actions constitute a further breach of the contract; and 6. are any of these questions not amenable to summary application? [10] I turn now to analysis of the questions, first of all, how "any" should be interpreted and principles of interpretation. Before summarizing the positions of the parties and my interpretation of clause 10, I will briefly summarize some of the legal principles. Since these are oral reasons and time has been somewhat limited, I will quote a para. from my own earlier decision of Diamond Robinson Building Ltd. v. Conn, 2010 BCSC 76, as it has the virtue of distilling the most important governing principles, now quoting from it at para. 62: [62] In sum, the authorities explain that the interpreting judge must first discover the parties' intentions from a plain reading of the words of the contract. If the wording is too ambiguous to permit a clear understanding of the parties' intentions, the judge should then turn to the surrounding circumstances, particularly those relating to the parties' commercial intentions, and to the 'factual matrix' -- that is, "the background which may deepen an understanding of what the parties meant by the language they used": see Glaswegian Enterprises Inc. v. BC Tel Mobility Cellular Inc. (1997), 101 B.C.A.C. 62, 49 B.C.L.R. (3d) 317 at para. 20. A judge should not over-contextualize or use background information as a basis for making a new agreement for the parties: see Black Swan Gold Mines Ltd. v. Goldbelt Resources Ltd. (1996), 78 B.C.A.C. 193, at para. 19. Nor should the factual matrix include evidence of negotiations or the parties' intentions Finally, to the extent that terms drawn up by the plaintiff are ambiguous, the court must construe the terms against the party that drafted the contract: Wall Bros. Construction Co. v. Canson Enterprises Ltd. (1986), 70 B.C.L.R. 243, 17 C.L.R. 157 (C.A.) [Wall Bros.]. [11] I turn now to legal principles relating to 'best efforts'. As discussed further in a moment, Transform urges me to find that clause 10 contemplates more than just the anticipated Toews contract. Transform asserts that clause 10 obligates the defendants to act in good faith and to use their best efforts to complete not only the Toews purchase, but also, should it collapse, as it did, to pursue other purchases and to do their best to sell the property before October 31, 2011. This is a trigger date for rendering the settlement agreement null and void failing any sale by October 31, 2011. [12] No one doubts that a settlement agreement is like any contract and so is subject to interpretation in accordance with the standard principles of contractual interpretation, Brown v. 0821969 B.C. Ltd., 2010 BCSC 989, paras. 35 to 36. No less settled is the basic principle of contract law that each party to the contract must take all necessary steps to secure the performance of it. In other words, each party to the contract has an obligation to do all that is necessary to ensure performance of the contract; Dynamic Transport Ltd. v. O.K. Detailing Ltd., [1978] 2 S.C.R. 1072, at p. 1084. At page 1083, the court in Dynamic cited Cheshire and Fifoot's Law of Contract, 9th edition, at p. 137: Where there is a contract but the obligations of one or both parties are subject to conditions a number of subsidiary problems arise. So there may be a question of whether one of the parties has undertaken to bring the condition about . . . There is a clear distinction between a promise, for breach of which an action lies and a condition, upon which an obligation is dependent. But the same event may be both promised and conditional, when it may be called a promissory condition. A common form of contract is one where land is sold 'subject to planning permission.' In such a contract one could hardly imply a promise to obtain planning permission, since this would be without the control of the parties but the courts have frequently implied a promise by the purchaser to use his best endeavours to obtain planning permission. This type of case is merely a specific instance of a general principle that "the court will readily imply a promise on the part of each party to do all that is necessary to secure performance of the contract: That is taken from 9 Hals. (4th ed.) p. 234. [13] Counsel for Transform emphasizes the last sentence in that quote I have just given, that is, the court will readily imply that each party is under an obligation to do all that is necessary on his part to secure performance of the contract. These principles are deeply rooted in the law of contract, but that does not mean an obligation to use best efforts is automatically stamped onto every contract, certainly not without due consideration of the language of the contract, the parties to it, and the contract's overall purpose as reflected in its language. [14] I am indebted to Justice Dorgan for her extraction from the case principles that have defined what "best efforts" means. At para. 71 of Atmospheric Diving Systems Inc. v. International Hard Suits Inc., [1994] B.C.J. No. 493 (S.C.), she summarized the cases this way: [71] In summary, the principles extracted from the cases on the issue of "best efforts" are: 1. "Best efforts" imposes a higher obligation than a "reasonable effort". 2. "Best efforts" means taking, in good faith, all reasonable steps to achieve the objective, carrying the process to its logical conclusion and leaving no stone unturned. 3. "Best efforts" includes doing everything known to be usual, necessary and proper for ensuring the success of the endeavour. 4. The meaning of "best efforts" is, however, not boundless. It must be approached in the light of the particular contract, the parties to it and the contract's overall purpose as reflected in its language [which is the passage I just referenced before beginning to read paragraph 71]. 5. While "best efforts" of the defendant must be subject to such overriding obligations as honesty and fair dealing, it is not necessary for the plaintiff to prove that the defendant acted in bad faith. 6. Evidence of "inevitable failure" is relevant to the issue of causation of damage but not to the issue of liability. The onus to show that failure was inevitable regardless of whether the defendant made "best efforts" rests on the defendant. 7. Evidence that the defendant, had it acted diligently, could have satisfied the "best efforts" test, is relevant evidence that the defendant did not use its best efforts. [15] I note that clause 10 does not contain a "best efforts" clause. Contracts that contain a condition precedent such as an approval for a sale of property often contain a "best efforts" clause. The absence of such a clause does not mean a promise by the party who alone has it in their power to perform the condition precedent does not mean the obliged party is thus free of a "best efforts" obligation. But the case for a "best efforts" obligation, especially where the condition is not straight forward and the path through to its completion sufficiently clear, a case for the implied promise to use best efforts is somewhat weakened, especially where the party seeking to enforce it also drafted the contract, but did not stipulate the obligation and define it, where it was necessary to do so. [16] I turn now to the positions of the parties and the facts. The parties essentially acknowledge that the settlement agreement had formed itself around the parties' anticipation of a sale of the farm to a specific party with the expectation that it would complete within 15 days of the City of Abbotsford awarding a food waste contract. The reference to the food waste contract is significant because this expected event figured in the anticipated contract. A Bev Toews, who was in the throes of negotiating a contract at the time the parties made the settlement agreement, would not be purchasing any shares in Jayendee unless Abbotsford awarded the contract to another food waste disposal company, Net Zero. Toews had then planned to lease a portion of the land to Net Zero, another food waste business. [17] Those background details aside, the main point here is that it was the anticipation of a sale of the farm that had precipitated the making of the settlement agreement. This is because a comparatively modest portion of the proceeds anticipated for the sale of the farm would enable the defendants to settle the litigation. [18] Turning now to the words in clause 10, the last clause in the settlement agreement, Transform says the word "any" must refer to any sale of the property and not just to the anticipated Toews sale because, at the time the settlement agreement was made, the defendants and Toews were still negotiating. Nothing in regards to those negotiations had been finalized. Transform says clause 10, with its use of the word "any," expressly refers to any sale, not any one specific sale, including the anticipated sale to Toews. With no assurance the Toews negotiations would ultimately lead to completion, counsel submits, surely the parties intended to express the intention that should any sale complete no later than October 31, 2011, the defendants would have to pay Transform concurrently with the sale, but no later than October 31, 2011. [19] I note in passing clause 10 does not define what "sale of the farm" means, whether an offer or completion. That aside, Transform submits, therefore, that in all the circumstances, the defendants had an obligation to use their best efforts to sell the property. [20] Counsel for Transform submits, as well, that the parties could not have intended to bind up the clause 10 stipulation for concurrent payment with just one set of negotiations that might lead anywhere and despite whatever the parties' expectations might have been at the time. Transform further submits that the defendants made an implied promise not only to use their best efforts to complete the sale to Toews, but in addition, if, despite their best efforts, they found they had been unable to complete a sale, the defendants could not just then drop tools and go home, as Transform says the defendants effectively did. [21] Counsel for Transform points to Mr. Doppenberg's affidavit in which he confirms that, after collapse of the Toews negotiations, he made no further efforts to sell the property. Counsel points out he did not list it or follow up with anyone else who might have expressed interest at purchasing the farm such as a Mr. Matthew Malkin, who, in his October 5, 2011, affidavit, deposes that, at the beginning of that month, he had attended the farm where he spoke to Mrs. Doppenberg who told him, he deposes, that she did not know what she and her husband "are going to do with the property" and that they "might just keep it rather than selling it." Mr. Malkin also deposes that later that same day, he called the defendants' residence and left a message for Mr. Doppenberg saying he was interested in potentially purchasing the property and asking Mr. Doppenberg to call to discuss it. However, he says, he received no response thereafter. [22] In his October 7, 2011, affidavit sworn in response to Mr. Malkin's affidavit, Mr. Doppenberg explained that in advance of signing the settlement agreement, the defendants had intended to make a share purchase agreement with Bev Toews. Under the planned agreement, the Doppenbergs would transfer 76 percent of Jayendee's shares to Toews for $1,596,000 which, I note, expresses a pro rata value of $2.1 million for the farm. I pause to note that there is an appraisal of the property in evidence that indicates its value is around $1.7 million. [23] Mr. Doppenberg explained that the transaction anticipated Bev Toews would purchase the land and then lease the facility back to another company called Net Zero Waste. I alluded to this earlier, of course, but the sale was to proceed only if the purchaser agreed to all the terms in the share purchase agreement and that the City of Abbotsford would award a food waste contract to Net Zero. This is, of course, the anticipated purchase I was referring to earlier. [24] Mr. Doppenberg says, however, that the purchaser kept attempting to change the terms of the share purchase agreement and made ever-increasing demands such that, by the end of July 2011, it had become clear the parties could not reach an agreement and Toews then withdrew. Mr. Doppenberg points out, as well, that as at October 7, 2011, the City of Abbotsford had yet to award the food waste contract. I should note that this was on the hearsay of Net Zero, that does not appear to be in controversy. Mr. Doppenberg also states in his affidavit [as read in]: If any party presented an unconditional offer to purchase the farm on terms similar to those noted in the referenced tentative share purchase agreement, we would certainly consider selling the farm. [25] Transform relies on this evidence to support its contention that the defendants have not made best efforts to sell the property, an obligation it contends extended beyond its negotiations with the anticipated purchaser after those negotiations collapsed. [26] As we saw earlier, the interpreting judge must first discover the parties' intentions from a plain reading of the words of the contract. If the wording is too ambiguous to permit a clear understanding of their intentions, the judge should then turn to the surrounding circumstances, particularly those relating to the parties' commercial intentions and to the factual matrix, that is, the background which may deepen an understanding of what the parties meant by the language they used. I find clause 10 sufficiently ambiguous to justify some resort to the surrounding circumstances, particularly those relating to the parties' commercial intentions. I find that the sale their anticipations were resting on was the Toews transaction that Toews and the Doppenbergs were actively negotiating. There is no evidence of any other potential sale as at that time. [27] Counsel for the defendants point out that the proposed purchase price, which on a pro rata basis works out to $2.5 million, as I mentioned earlier, was highly advantageous to the defendants. He suggested they had seized upon the opportunity to rid themselves of litigation, the burden for doing so eased somewhat by what were highly advantageous terms. I have no evidence from the defendants stating that in such terms, though a finding of terms advantageous to the defendants -- to the Doppenbergs, I meant to say, can be reasonably inferred from the sale price the defendants anticipated compared to the appraised value of the farm of $1.7 million. [28] Transform emphasizes the natural meaning of the word "any". I am doubtful, however, that it can bear all the meaning Transform seeks to invest it with and, while all the words in a contract must be given their natural meaning, they should not be read in isolation or free of any context, especially when the provision in question considered as a whole is somewhat ambiguous. I do agree with Transform, however, that clause 10 can be read in the way it urges when we come to the specific question of what should happen in the event of a sale before October 31, 2010. In that event, if any sale at all were to have occurred, the defendants would have to pay Transform concurrent with the sale. [29] I note the adjoining parenthetical clause, however, "but no later than by October 31, 2011" cannot sensibly be referring to the obligation and the concurrent payments at the time of the sale since the sale would complete and a sale of the farm, sensibly, could only be referring to the date for completion. Otherwise, unless Transform were to grant an extension to the defendants, a completion date just one day later on November 1, 2011, would render the parties' respective obligations null and void. [30] I have digressed to this aside because it is somewhat relevant on the question of whether the defendants owed Transform a "best efforts" obligation on any completed sale other than the Toews one. The October 31, 2011, trigger date is also suggestive of the fact that the parties were anticipating completion of a particular sale completing with a certain timeframe. Sales of $2 million farm properties do not materialize quickly. [31] That said, I agree with Transform to this extent. If any sale of the farm completed before October 31, 2011, the defendants would be obligated to pay concurrent with the sale the amounts the settlement agreement obligated them to pay Transform. But I disagree with the defendants' position that should the Toews agreement fall, clause 10 could effectively require the defendants to then use their best efforts to try to bring about another one. How could clause 10 obligate the defendants to use their best efforts to complete the Toews sale, but not towards any other sale while at the same time obligate the defendants to pay out Transform under the settlement agreement concurrent with any other sale that materialized before October 31, 2011? [32] First, I note again, I must try to give effect to the words the parties used in the contract in accordance with its natural meaning and, in case of ambiguity, what I find from the surrounding circumstances to be the commercial intentions of the parties. If I can give any effect to the natural meaning of "any" with respect to some contractual obligations considering all the circumstances and the requirements for certainty, I should do so. [33] In this case, I find the parties had, in contemplation, anticipated purchase of the farm by Toews when they made the contract. While there was as yet no contract, the purchasing party was identifiable, some of the conditions that had to be met to satisfy the purchaser were known, negotiations would lead, or not, to Toews' purchase of the farm. There was a sufficient basis for finding out at a later time whether the defendants had been diligent in attempting to complete a sale or had used less than satisfactory effort by, say, failing to satisfy some of their obligations necessary to complete the sale that was within their power to do so. [34] Such best-effort shortcomings could be demonstrated on an objective basis. If the Toews sale failed, but the defendants, either by chance or through their pursuit of another purchaser, had managed to find one and the sale completed before October 31, 2011, the parties would have no uncertainties or ambiguities to grapple with. They would need only look to the fact a sale had completed and, so long as it occurred before October 31, 2011, see to it that the parties' respective obligations were carried out, but as I see it, where Transform runs into an impenetrably dense thicket of problems is when it seeks to impose on the defendants a "best efforts" obligation beyond the Toews contract that was already within the purview of the parties. [35] Despite the most able submissions of counsel for Transform, I find that after the collapse of the Toews negotiations, the defendants owed no implied obligation to use their best efforts to find another property purchaser and sell the property. The fact that, say, in the event the defendants did find a purchaser and did complete a sale before October 31, 2011, and that they would then have to pay out the defendants concurrent with a sale, is not, as I read the agreement, inconsistent with their having no obligation to have used their best efforts to find that new prospective purchaser. This is because, in the case of a sale, the event simply occurs and there is no uncertainty of any kind regarding it, but in the event there is no sale, but, as Transform urges, clause 10 then imposes a positive obligation on the defendants to bring one about, the nature of the obligation to do so is encircled by a dense thicket of uncertainties that would make it nearly impossible for a court to give meaning to the defendants' best efforts in this case. [36] As Justice Dorgan put, the meaning of "best efforts" is not boundless. The corollary of this is, of course, is that the meaning of "best efforts" must be definable, approached in light of the particular contract, the parties to it, and the contract's overall purpose as reflected in the language. In other words, while the court may imply a party's obligation to do all that is necessary to bring about an event, it is a necessary condition to the other party securing the benefit of the contract that particulars of the event must be no less certain than any other terms implied or not under the contract. This must be particularly so when the "best efforts" obligation relates to a term or, in this case, a condition precedent that is fundamental to the parties' obligations under the contract. [37] In the case at bar, given that we are not dealing with the sale of a detached residence, but a 20-acre farm with a value approaching $2 million, not a zoning change from residential to industrial, for example, or approval of a designated number of parking stalls in a commercial building, listing the property is clear enough, but what would the acceptable price range be; what kind of expenses would the defendants be expected to incur, what completion date and what conditions for sale would they be entitled to include or exclude? I do not suggest that a great deal of detail is necessary, but at least some criteria that reflects the essentials of price, date, and specific steps the defendants would be obligated to undertake. [38] In my view, a "best efforts" should not be implied in the circumstances of this case without some definition as to what that might mean. Transform submits there is no need to be concerned about defining "best efforts" at this stage. In this case, counsel points out the defendants never even listed the property or made any further attempts to sell the property. We should not, therefore, concern ourselves with assigning meaning to "best efforts." Because Toews fell through, they made none at all. [39] However, in my view, clause 10 does not burden the defendants with using their best efforts to pursue any further sale of the property after the Toews property fell. Though, as discussed earlier, had they successfully done so and were able to sell the property before October 31, 2011, clause 10 is clear enough to that limited extent, at least, to obligate the defendants to pay out the plaintiffs. Beyond that, if the parties had intended to burden the defendants with using their best efforts of securing another purchaser, which in effect would represent part of the consideration of a separation agreement, this should have been defined sufficiently to remove any uncertainty. [40] I note, as well, that ambiguity in the terms of the contract, which in this instance relates to whether there is an implied obligation to use best efforts, must be construed against the maker. This interpretation of the clause makes it unnecessary to find the whole settlement agreement or all of clause 10 void for uncertainty. It gives business efficacy to it, so far as the requirements for certainty in the terms of the contract allow. [41] As for the question as to whether the plaintiffs breached the agreement, it is no longer necessary for me to decide that issue. Had it been necessary, however, I would find this could not be decided conveniently on summary hearing; likewise, the question of whether the defendants are in breach of the settlement agreement for denying Transform access to the property. [42] The defendants' application with respect to removal of the certification of pending litigation is adjourned to another date convenient for the parties. [43] Costs in the cause. [44] I thank you both very much for your submissions. They were very helpful. [45] MR. MACKINNON: My Lord, MacKinnon here, I am sorry, partly you -- we lost you just for a moment right at the end in terms of the final -- your final conclusions in terms of the application. [46] MR. MACKINNON: So the reasons are entirely clear. I am still struggling a bit. My friend -- the plaintiffs have an application to enforce and I am assuming that what we take from the reasons is that the plaintiffs' application is dismissed. [47] THE COURT: That is right. [48] MR. MACKINNON: Right, apologies, and the other matters are adjourned generally and costs in the cause? [49] THE COURT: That is right. Your certificate of pending application is adjourned and yes, the plaintiffs' application is dismissed. [50] MR. MACKINNON: Right, and I certainly appreciate the breadth of the reasons, My Lord. It is very clear you spent quite a bit of time on this matter. [51] THE COURT: Okay, I hope counsel can find a settlement for your clients. Thank you. "N. Brown J."