Court File and Parties

2010 ONCA 680

DATE: 20101019

DOCKET: C51856

COURT OF APPEAL FOR ONTARIO

Cronk, Blair and LaForme JJ.A.

BETWEEN

The Dunnville Soccer Park Corporation

Applicant (Appellant in Appeal)

and

The Corporation of Haldimand County

Respondent (Respondent in Appeal)

Thomas A. Cline, for the appellant

Glen W. McCann, for the respondent

Heard: October 7, 2010

On appeal from the judgment of Justice R. Lococo, of the Superior Court of Justice, dated February 23, 2010.

ENDORSEMENT

[1] On June 12, 2007, the respondent gave written notice of termination of the 1999 lease to the appellant, to be effective June 30, 2007. In purported compliance with the terms of the 1999 lease, the respondent offered to enter into a new lease with the appellant. The terms of the new lease, as insisted upon by the respondent, included the very same property, which had been developed into the existing soccer facility through the sole efforts and expense of the appellant. The proposed new lease also called for a shorter term and a new requirement that the appellant contribute 65% of the future maintenance costs of the facility. Both of these features of the proposed new lease were material variations of the 1999 lease.

[2] The actual terms of the 1999 lease – with which the respondent was required to comply in order to effect a valid termination of the lease – contain specific and clear language, including that the respondent “… agrees to provide, at its own expense, another reasonably similar soccer facility, including all improvements, buildings, drainage, grass and landscaping, at another location in the Town of Dunnville …” What the respondent offers is the same property that was developed at the expense of the appellant; not “another similar soccer facility … at another location”.

[3] Having failed to comply with these clear terms, the termination of the 1999 lease by the respondent cannot be said to be valid. Accordingly, the appeal must be allowed. The respondent’s termination of the lease is of no force and effect.

[4] As agreed, by the parties, the appellant is entitled to costs of the appeal, fixed in the amount of $4,000 inclusive of disbursements, plus applicable taxes.

“E.A. Cronk J.A.”

“R.A. Blair J.A.”

“H.S. LaForme J.A.”