COURT OF APPEAL FOR ONTARIO

2013 ONCA 38

DATE: 20130122

DOCKET: C55703

Doherty, Laskin and Blair JJ.A.

BETWEEN

Rinaldo Hair Stylist Limited

Plaintiff (Appellant)

and

bcIMC Realty Corporation and Bentall Retail Services LP

Defendants (Respondents)

Counsel:

Kenneth Radnoff, Q.C. and Brian N. Radnoff, for the appellant

Raymond M. Slattery and Sepideh Nassabi, for the respondent bcIMC Realty Corporation

Jeff G. Saikaley, for the respondent Bentall Retail Services LP

Heard and released orally: January 16, 2013

On appeal from the judgment of Justice Wolfram Tausendfreund of the Superior Court of Justice, dated May 29, 2012.

ENDORSEMENT

[1] This was an appropriate case for summary judgment, in our view. Given the record, the motion judge was in a position to have a "full appreciation of the evidence", and we do not see that the trial judge would have a record that would be in any way substantially different.

[2] We do not agree that the motion judge purported to apply a principle that as a matter of law there were two periods of negotiation (one before the time for renewing the option and a "new ball game" thereafter). Rather, he reviewed the conduct of the parties as a whole and concluded that that conduct did not amount to waiver of the notice requirement in the circumstances. His findings at para. 24 of his reasons are well supported on the record.

[3] With respect to the post-deadline negotiations, the motion judge simply concluded that they were not negotiations about the tenant's renewal option, but were instead negotiations regarding a potential new and different lease. This conclusion was also supported by the record.

[4] In these circumstances, we also disagree that it was bad faith on the part of the landlord to consider other tenant options either before or after the renewal period or that its conduct somehow impeded or "eviscerated" the renewal option right.

[5] The appeal is therefore dismissed with costs to each respondent fixed in the amount of $10,000 inclusive of disbursements and applicable taxes.

"D. Doherty J.A."

"John Laskin J.A."

"R.A. Blair J.A."