COURT OF APPEAL FOR ONTARIO
RE: ACKTION CAPITAL CORPORATION and BRAMALEA CITY CENTRE EQUITIES INC. (Applicants (Appellants)) - and - EVERYTHING FOR A DOLLAR STORE (CANADA) INC., Trading as EVERYTHING FOR A DOLLAR (Respondent (Respondent))
BEFORE: CATZMAN, GOUDGE and FELDMAN JJ.A.
COUNSEL: Wolfgang Kaufmann For the appellant
Steven Rosenhek and J. Nichols For the respondent
HEARD: November 26, 2002
RELEASED ORALLY: November 26, 2002
On appeal from the judgment of Justice Alexandra Hoy of the Superior Court of Justice dated May 3, 2002.
E N D O R S E M E N T
1The appellant landlord appeals from the decision of Hoy J. made on an application to interpret the effect of a Lease Extension and Amending Agreement dated June 15, 2000 (the “June 15, 2000 Agreement”) on the restrictive covenant in favour of the tenant contained in the original lease and its first renewal. The application judge held that the effect of the June 15, 2000 Agreement was to extend the restrictive covenant in favour of the tenant for the full term of that Agreement.
2We see no error in the conclusion reached by the application judge. Section 5 of the June 15, 2000 Agreement specifically confirms that the restrictive covenant section in the original lease remains unchanged “except as modified by this Agreement”. The only relevant modification is in the definition of the word “Term” which is redefined in paragraph F.5(c) of the June 15, 2000 Agreement from 4 years to 16 years and 7 months. As a result, the restrictive covenant applies for that term which runs until 2010.
3The appeal is therefore dismissed with costs fixed at $5,000.
Signed:_____ “M.A. Catzman J.A.”
_____ “S. T. Goudge J.A.”
_____ “K. Feldman J.A.”