COURT OF APPEAL FOR ONTARIO
RE:
WALLACETOWN AGRICULTURAL SOCIETY (Applicant (Respondent in Appeal)) - and - MURRAY HIRTLE (Respondent (Appellant))
BEFORE:
ROSENBERG, FELDMAN and GILLESE JJ.A.
COUNSEL:
Karl Arvai
For the appellant
Donald Ferguson
For the respondent
HEARD:
February 25, 2002
RELEASED ORALLY:
February 25, 2002
On appeal from the order of Justice John McGarry, dated August 7, 2001, made at St. Thomas, Ontario.
E N D O R S E M E N T
1The issue is whether the licence is revocable and, if so, in what circumstances.
2The appellant concedes that although he and Mr. Duncanson originally understood that the licence was in perpetuity unless terminated by himself, as licensee, in fact the Society could terminate on one month’s notice if there were reasonable grounds for so doing, such as if the barn were to be torn down or for a breach of the rules or other misconduct of the licensee.
3On the appeal and before McGarry J., the Respondent took the position that the licence was terminable at will by the Society. It appears from paragraph 4 of his reasons that McGarry J. accepted that submission.
4However, we are satisfied that the law on the issue now is that a licence is not revocable at will, but remains in effect in equity in accordance with the terms of the original contract between the parties. We agree with the Appellant that the licence made here was revocable by the Society, not at will, but if necessary to carry out the reasonable purposes of the Society, including for cause.
5Although McGarry J. addresses the issue of cause in paragraph 3 of his reasons, he does not make a clear finding that the licence was terminated for cause. As a result, we allow the appeal, set aside the order of McGarry J., and remit the matter back to the Superior Court to determine whether the licence was properly terminated by the Society for cause. Costs of the appeal are reserved to the application judge who hears that matter.
Signed: “Marc Rosenberg J.A.”
“K. Feldman J.A.”
“E.E. Gillese J.A. (ad hoc)”