2008 ONCA 264

DATE: 20080411

DOCKET: C47568

COURT OF APPEAL FOR ONTARIO

MOLDAVER, CRONK and BLAIR JJ.A.

BETWEEN:

MILLENIUM VETERINARY HOSPITAL CORPORATION

Applicant/Respondent in Appeal

and

SR & R BAY RIDGES LTD.

Respondent/Appellant

William Friedman, for the appellant

David M. Golden, for the respondent

Heard and released orally: April 7, 2008

On appeal from the judgment of Justice J.E. Ferguson of the Superior Court of Justice dated July 18, 2007, with reasons reported at (2007), 60 R.P.R. (4th) 308.

ENDORSEMENT

[1] The issue on this appeal concerns the alleged right of the appellant landlord under clause 12(b) of the commercial lease in question to relocate the respondent tenant outside the shopping centre development in which its leased premises are currently situated. The application judge concluded that the landlord’s relocation right under the lease does not permit it to require the tenant to relocate to a location outside the existing development. We agree, although for reasons that differ from those of the application judge.

[2] Clause 12(b) of the lease must be interpreted in the context of the entire lease and in light of the provisions of clause 12 as a whole. Counsel for the landlord argues that clause 12(a) contemplates, among other matters, the full redevelopment of the shopping centre and further, that when clauses 12(a) and 12(b) are read together, the plain language of clause 12(b) permits the landlord to require the tenant to relocate to premises outside the existing shopping centre development.

[3] We reject this argument. Admittedly, clause 12 is not a model of clarity. However, properly read, clause 12(a) envisages changes, additions or deletions to the existing shopping centre structure short of full demolition and creation of an entirely new development. Were it otherwise, specific language would have been included in clause 12(a) concerning wholesale redevelopment. When clause 12(b) is read in that context, the scope of the landlord’s relocation right under that clause does not extend to the compulsory relocation of the tenant to premises outside the existing shopping centre complex. The landlord’s counsel on this appeal, quite properly, does not suggest otherwise.

[4] The appeal, therefore, is dismissed. The respondent is entitled to its costs of this appeal, fixed in the amount of $10,000, inclusive of disbursements and GST.

“M.J. Moldaver J.A.”

“E.A. Cronk J.A.”

“R.A. Blair J.A.”