Tradedge Inc.(Shoeless Joe’s) v. Tri-Novo Group Inc., 2007 ONCA 562

CITATION: Tradedge Inc.(Shoeless Joe’s) v. Tri-Novo Group Inc., 2007 ONCA 562

DATE: 20070817

DOCKET: C43951

COURT OF APPEAL FOR ONTARIO

ROSENBERG, ARMSTRONG and JURIANSZ JJ.A.

BETWEEN:

TRADEDGE INC. c.o.b. as Shoeless Joe’s

Appellant

and

TRI-NOVO GROUP INC.

Respondent

M.A. Klaiman for the appellant

Bruce Jaeger for the respondent

Heard and released orally: August 13, 2007

On appeal from the judgment of Justice F. Graham of the Superior Court of Justice dated June 29, 2005.

ENDORSEMENT

[1] This is an appeal from a judgment dismissing an application under s. 23(2) of the Commercial Tenancies Act for an order finding that the respondent, as landlord, unreasonably withheld its consent to an assignment of the appellant’s lease.

[2] The application judge set out the applicable test, which is summarized in 1455202 Ontario Inc v. Welbow Holdings Ltd., [2003] O.J. 1785 (S.C.J., however, his analysis is incomplete. He found a reasonable landlord could have refused to consent to the assignment, but erred in not considering whether the respondent’s refusal was unreasonable in fact because it was designed to achieve a collateral purpose or benefit. In this case, there was evidence that could have supported such a conclusion.

[3] Therefore, we allow the appeal, set aside the judgment and remit the matter to be decided by a different judge.

[4] In these circumstances, it is unnecessary to determine the motion to admit fresh evidence, which the parties may well tender on the rehearing.

[5] The appellant is entitled to his costs of the appeal fixed at $12,000 inclusive of GST and disbursements.

[6] The costs of the application before Graham J. are reserved to the judge at the new hearing.

“M. Rosenberg J.A.”

“R.P. Armstrong J.A.”

“R. Juriansz J.A.”