COURT OF APPEAL FOR ONTARIO
RE: GLEN VENDING LIMITED (Respondent/Applicant/Respondent by Counter-Application) –and– THE CORPORATION OF THE CITY OF CORNWALL (Appellant/Respondent/Applicant by Counter-Application)
BEFORE: McMURTRY C.J.O., CATZMAN and FELDMAN JJ.A.
COUNSEL: Daniel Leduc, for the appellant
Peter E. Chisholm, for the respondent
HEARD: November 29 and 30, 2000
On appeal from the judgment of Justice Antoine de Lotbinière Panet dated January 4, 2000.
E N D O R S E M E N T
1In his endorsement, Panet J. concluded that the lease (as amended) between the parties remained in full force and effect, and that:
there was never any acceptance by the [appellant] of the various proposals to renegotiate the agreement made, from time to time, by the [respondent].
2In our respectful view, these conclusions were erroneous.
3Both counsel took us carefully through all of the relevant correspondence that passed between their respective clients, together with the city’s internal memoranda. We are satisfied, by reference to the letters of December 3, 1997, December 10, 1997, December 17, 1997, June 15, 1998 and November 9, 1998, and the memorandum of January 19, 1998, that the parties did reach a meeting of the minds and agreed upon terms, including early termination, that had the effect of superseding the lease (as amended) between them.
4The result of that meeting of the minds was that the lease (as amended) was effectively displaced by the parties’ subsequent agreement, and the parties acted thereafter in accordance with their subsequent agreement. Accordingly, Panet J. ought to have dismissed the respondent’s application for an order that the lease (as amended) remained in full force and effect and that the parties should proceed to arbitration as provided in the lease.
5In the result, the appeal is allowed, the judgment of Panet J. is set aside, and in its place an order should issue dismissing the respondent’s application with costs, fixed in the sum of $7,300 plus GST (the amount awarded by Panet J.). The appellant is entitled to its costs of the appeal forthwith after their assessment.
Signed: “R.R. McMurtry C.J.O.”
“M.A. Catzman J.A.”
“K. Feldman J.A.”