Court of Appeal for Ontario

CITATION: Juno Developments (Parry Sound Limited v. Gendis Realty Inc., 2007 ONCA 611

DATE: 20070910

DOCKET: C45659

FELDMAN, SIMMONS and MacFARLAND J.J.A.

BETWEEN:

JUNO DEVELOPMENTS (PARRY SOUND) LIMITED

Applicant (Appellant in Appeal)

and

GENDIS REALTY INC.

Respondent (Respondent in Appeal)

Melvyn L. Solmon for the appellant

William J. Burnett and Jonathan Woolley for the respondent

Heard and released orally: September 6, 2007

On appeal from the judgment of Justice William P. Somers of the Superior Court of Justice dated June 14, 2006.

ENDORSEMENT

[1] We are not persuaded that the application judge erred in concluding that this was not a matter that could be decided on application on the interpretation of a document or on the basis of undisputed facts.

[2] Although there is a lengthy history of lease negotiations and positions taken, in our view, given the tenant’s acknowledgement of an oral amending agreement, the main issue in dispute is whether the landlord’s failure to sign and return the amending agreement amounted to a failure to reach a binding agreement.

[3] The application judge dismissed the application without prejudice to the appellant’s right to commence an action. In our view, the most expeditious procedural remedy is an order for the trial of an issue of whether there was a binding, concluded lease between Juno Developments (Parry Sound) Limited on the one hand and Gendis Realty Inc. and Saan on the other. The parties shall exchange pleadings and proceed with production of documents and examination for discovery as advised. Subject to that revision of the procedural remedy, the appeal is dismissed with costs fixed at $16,500 to the respondent.

Signed: “K. Feldman J.A.” “J. Simmons J.A.” “J. MacFarland J.A.”