Brown's Cleaners and Tailors Limited v. OMERS Realty Corporation, 2010 ONCA 599
CITATION: Brown's Cleaners and Tailors Limited v. OMERS Realty Corporation, 2010 ONCA 599
DATE: 20100917
DOCKET: C51822
COURT OF APPEAL FOR ONTARIO
MacPherson, Gillese and MacFarland JJ.A.
BETWEEN:
Brown’s Cleaners and Tailors Limited
Plaintiff (Appellant)
and
OMERS Realty Corporation and 175382 Canada Inc.
Defendants (Respondent)
Stephen Victor, Q.C., and Melanie Maia for the appellant Brown’s Cleaners and Tailors Limited
Jean-Marc Eddie, for the respondent OMERS Realty Corp.
Heard and released orally: September 13, 2010
On appeal from the judgment of Justice George Valin of the Superior Court of Justice dated February 16, 2010.
ENDORSEMENT
[1] In our view, this appeal cannot succeed. The motion judge found that there was no genuine issue for trial and we agree with that finding. It is clear on the appellant’s own evidence that at its very highest, there was an agreement to agree. None of the terms of the lease had been agreed to during the August 25, 2005, meeting.
[2] Mr. Victor argues they agreed to renew the very lease that was in force at the time subject to an agreement on only the rental payment and the term of the lease. We do not accept that submission. As this court held, in Canada Square Corp. v. Versafood Services Ltd., 1981 1893 (ON CA), 1981 Carswell Ont. 124 (C.A.), at para. 21:
There is no disagreement between the parties to this appeal on the requisite terms of a valid agreement for lease. Both rely on the following passage in Williams’ The Canadian Law of Landlord and Tenant (4th ed., 1973), at p. 75 as follows:
To be valid, an agreement for a lease must show (1) the parties, (2) a description of the premises to be demised, (3) the commencement and (4) duration of the term, (5) the rent, if any, and (6) all the material terms of the contract not being matters incident to the relation of landlord and tenant, including any covenants or conditions, exceptions or reservations.
[3] Even accepting what the appellant alleges, it is common ground that two essential terms remained outstanding.
[4] In our view, this could be nothing more than an agreement to agree which is unenforceable and we agree with the trial judge’s finding in this regard. In addition, the appellant faces the hurdle of compliance with the in-writing requirements of s. 4 of the Statute of Frauds, R.S.O., c. S.19. Having found there was no agreement, the argument relating to anticipatory breach naturally fails and accordingly it is unnecessary for us to deal with the limitation issue.
[5] The appeal is dismissed.
[6] The respondent is entitled to its costs of the appeal fixed at $7500, inclusive of disbursements and applicable taxes.
"J. C. MacPherson J.A."
"E. E. Gillese J.A."
"J. MacFarland J.A."