COURT OF APPEAL FOR ONTARIO

DATE: 20001215

DOCKET: C33578

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

[1] In 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].

[2] In our respectful view, these conclusions were erroneous.

[3] Both 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.

[4] The 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.

[5] In 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.”