COURT FILE NO.: 557/02

DATE: 20021031

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: Business Depot Ltd. (Applicant) v. First Simcha Shopping Centres Limited and First Professional Management Inc. (Respondents)

BEFORE: Mr. Justice Edward Then

COUNSEL: Andrea M. Habas for the Applicant James M. Wortzman for the Respondents

HEARD: October 21, 2002

E N D O R S E M E N T

[1] Business Depot seeks leave to appeal from the order of Rivard J. dated July 29, 2002 pursuant to Rule 62.02(4)(b) on the basis that there is good reason to doubt the correctness of the order and the appeal raises a matter of importance which transcends the particular interests of the parties.

[2] Business Depot had entered into a lease arrangement with the respondents which the respondents terminated on May 29, 2002. Business Depot brought an application to interpret the lease, preserve its right to the leased premises and to obtain specific performance.

[3] On consent, Rivard J. converted the application to an action for specific performance of the lease.

[4] With respect to the issue of interim relief, Rivard J. ordered that the motion for (a) interim injunction and (b) certificate of pending litigation (CPL) be dismissed. In dealing with the request for interim injunction Rivard J. found that there were serious issues to be tried, he also found that an alternative premises within the same commercial complex was available to Business Depot and that Business Depot would not suffer irreparable harm which could not be compensated by damages and that the balance of convenience favoured the respondent.

[5] As a preliminary matter, the respondent submits that the motion for leave to appeal was not filed by July 29, 2002 as the rules require and that the Court should refuse to exercise its discretion to grant an extension of time because in the circumstances it would be unjust or prejudicial to the respondents to do so for the following reasons:

(a) pursuant to the Rules of Civil Procedure the notice of motion for leave to appeal was to have been served on or before July 29, 2002. It was not;

(b) no motion was brought to stay the Judgment;

(c) although the Moving Party advised that a motion to extend the time to seek leave to appeal and the motion for leave to appeal would be brought as early as August 7, 2002, no motions were served or brought until five or six weeks later;

(d) the respondents repeatedly advised the Moving Party that the respondents were proceeding with the development in reliance upon the Judgment;

(e) in this regard, in reliance on the Judgment, the respondents have, inter alia:

(i) attended a meeting before the Planning Committee and Local Council on or about September 17, 2002, wherein zoning by-law amendments and official plan amendments were approved;

(ii) obtained site plan approval with respect to portions of the Commercial Complex (the “Approved Site Plan”);

(iii) negotiated further lease terms with prospective tenants based on the Approved Site Plan;

(iv) commenced construction based on the Approved Site Plan.

[6] It appears obvious from the record filed that the respondent was aware of the applicant’s intention to seek leave to appeal soon after the decision of Rivard J. Notwithstanding the delay, some of which is attributed to the mistaken belief of counsel that the notice for leave to appeal would be filed within two weeks, I would exercise my discretion to abridge the time for leave to appeal in the circumstances, as I am not satisfied that the alleged prejudice to the respondent compels me to refrain to do so.

[7] I am however not satisfied that there is good reason to doubt the correctness of the decision made by Rivard J.

[8] In dismissing the application for interim injunction there is no issue that Rivard J. applied the criteria set out in R.J.R. McDonald v. Canada (1994), 1994 117 (SCC), 111 D.L.R. (4th) 385.

[9] Although Rivard J. did not deal explicitly with the “uniqueness” of the subject premises (Location A), I am satisfied that in considering the issue of irreparable harm he nevertheless found that the premises at issue were not unique when he stated the following:

The Respondents are prepared to lease to the Applicant a store within the same complex, only a few hundred yards from the locations referred to in the Offer to Lease. Although this raises issues of visibility and accessibility, a store at this alternate location would be surrounded by similar tenants, would provide sufficient parking, good vehicular access, a new building identical to the one described in the Offer with the same square footage.

[10] There was evidence to support this conclusion. The materials of the applicant before Rivard J. indicated only that it was the location of the Commercial Complex that was unique to the Pickering area. In this context, Location A was not “unique” but rather perceived by the Applicant as more advantageous for reasons of visibility and accessibility.

[11] I am further satisfied in the circumstances that there was evidence to support the conclusion that there was no irreparable harm which could not be compensated by damages. In this respect, I agree with the respondent that the decisions of single judges of this Court in Cartier Supply & Rentals Ltd. v. Patafie, [1998] O.J. No. 156 (Gen. Div.) and 1252668 Ontario Inc. v. Windham Street Investments Inc., [1999] O.J. 3937 have no application. In those cases the motions judge granted injunctive relief on the basis of irreparable harm. Leave to appeal was granted on the basis that the evidence on the issue of irreparable harm was entirely speculative. In my view, it does not follow that leave be granted where the motions judge refuses to grant an injunction if there is evidence, as there is in this case, to support his opinion that the applicant will not suffer irreparable harm.

[12] I am satisfied that the motions judge correctly weighed the relevant considerations in concluding that the balance of convenience favours the respondent. There was uncontradicted evidence from the respondent to support that conclusion.

[13] In my view, there is no good reason to doubt the correctness of the decision of Rivard J. to not grant injunctive relief nor is there an issue raised which transcends the particular interests of the parties.

[14] However, there is a troubling aspect to the endorsement of Rivard J. As the applicant has properly pointed out, while the motions judge did order the application for CPL to be dismissed in his order, he did not specifically advert in his endorsement to the test for the availability of CPL nor did he give any reasons for refusing a CPL. The applicant submits that the failure to exercise his jurisdiction to order or refuse a CPL is sufficient in itself to warrant the granting of leave to appeal as the failure to exercise jurisdiction affects both criteria under Rule 62.02(4)(b).

[15] It is common ground that the factors to be considered in determining whether to grant or vacate a CPL in the exercise of the court’s discretion have been helpfully outlined in 572383 Ontario Inc. v. Dhunna (1987), 24 C.P.C. (2d) 287 (Ont. Master) as follows:

(a) whether the applicant is a shell corporation;

(b) whether the land is unique;

(c) the intent of the parties in acquiring the land;

(d) whether there is an alternative claim for damages;

(e) the ease or difficulty in calculating damages;

(f) whether damages would be a satisfactory remedy;

(g) the presence or absence of a willing purchaser;

(h) the balance of convenience.

[16] I agree with the submissions of the respondent that there is substantial overlap between these criteria and the test for interim injunction.

[17] I also agree with the submissions of the respondent that when due regard is had with respect to those factors which are either not in issue, or not applicable, but in particular, to the findings made by Rivard J. it is inevitable that the application for CPL would have properly been dismissed as the order of Rivard J. indicates but which his reasons unfortunately do not.

[18] In these particular circumstances, I am satisfied that the absence of reasons for dismissing the application for CPL should not give rise to a finding by this court that there is good reason to doubt the correctness of Rivard J.’s order dismissing the application for CPL nor is a matter of general importance raised by the omission of reasons.

[19] Finally, I agree with the respondent that the endorsement of Rivard J. does not cast doubt on the conclusions of the Supreme Court of Canada in Semelhago v. Paramadevan (1996) 1995 49 (SCC), 130 D.L.R. (4th) 1 that the granting of specific performance of a contract involving real estate is not an irrefutable presumption nor, on the requirement that trial judges examine the factors bearing on the uniqueness of property before granting specific performance, nor, on the authorities in Ontario interpreting Semelhago. (See: 904060 Ontario Ltd. v. 529566 Ontario Ltd., [1999] O.J. No. 355 per Low J.; John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2001), 2001 28012 (ON SC), 56 O.R. (3d) 341 at 355 per Lax J.; McGrath v. B.D. Schickendanz Homes Inc. (2001), 56 O.R. (3d) 34 per Cameron J.; 1376273 Ontario Inc. v. Woods Property Development (2001), 43 R.P.R. (3d) 19 at p. 33 per Mesbur J.

[20] The application for leave to appeal is dismissed. It is agreed that if leave to appeal is not granted the respondent is entitled to costs of this motion. If the parties cannot agree, written submissions may be made within 21 days of the receipt of this endorsement.

THEN J.

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