Quickie Convenience Stores Corp. v. Parkland Fuel Corporation

COURT FILE NO.: 18-76033

DATE: 2019-11-14

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Quickie Convenience Stores Corp. Applicant

– and –

Parkland Fuel Corporation Respondent

COUNSEL: Stephen Victor Q.C. and Corey Grouper, for the Applicant Linda Plumpton and Johnathon Silver, for the Respondent

HEARD: October 5 and November 22, 2018, and April 1, 2019 (at Ottawa)

REASONS FOR DECISION

KANE J.

[1] Quickie Convenience Stores Corp. ("Quickie") brings this application for contractual interpretation and declaratory relief pursuant to R. 14.05 (2) and (3) (d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 94 and pursuant to S. 23 (1) and (2) of the Commercial Tenancy Act, R.S.O. 1990 c. L.7 (the "CTA") as to whether Parkland Fuel Corporation ("Parkland") unreasonably withheld its consent to the proposed assignment of certain leases and subleases to Harnois Groupe Immobilier Inc. and Le Groupe Harnois Inc. (collectively "Harnois").

[2] Quickie operates fifty-two convenience stores in the Provinces of Ontario and Quebec. It owns a fee simple interest in twenty-one of those locations and leases the other thirty-one sites. Automotive gasoline is sold at twenty-two of Quickie's fifty-two convenience store sites.

[3] Parkland is a large wholesale marketer and supplier of gasoline and petroleum products in Canada and the United States. It supplies gasoline to some 1,848 retail gas stations in Canada, 596 of which it owns. The other 1,252 gas stations it supplies gasoline to in Canada are owned or leased and operated by gasoline retailers like Quickie. Parkland sells gasoline to such retailers either outright or upon consignment.

[4] Parkland states that its wholesale distribution of gasoline is a low margin business, which requires that it seek to sell a high volume of gasoline in order to qualify for discounts from refineries which impacts its profitability.

[5] Parkland is the wholesale gasoline supplier to fifteen of Quickies' twenty-two sites which sell gasoline. The contractual provisions in issue involves these fifteen Quickie gas-store sites, of which:

(a) eight of those sites are located in Ontario and seven are located in Quebec;

(b) Quickie is the fee simple owner of twelve of those sites;

(c) Parkland is the fee simple owner of one of those sites; and

(d) Unrelated third parties are fee simple owners of the other two sites.

[6] The supply of gasoline to the fifteen Quickie sites in issue are pursuant to terms in leases and subleases between Quickie and Parkland's predecessor, CST Canada Co. ("CST"). Parkland purchased the business of CST in the summer of 2017. At its request, Quickie granted CST a release in June 2017 CST of all lease and sublease obligations which were assumed by Parkland as part of its purchase of CST's business. Parkland thereupon became the gasoline supplier for these fifteen Quickie sites.

[7] As it is not in issue, this decision for simplicity will generally refer to contracts between the parties without further reference to the original signatories such as CST.

[8] Quickie in July 2017 decided it wished to sell its business by way of the sale of all of its assets to a single purchaser and solicited bids from selected potential purchasers. Quickie was contractually required to first notify Parkland that it wished to sell its assets and permit Parkland to submit an offer for the purchase of the same which Quickie had to decide upon before it could sell its assets to a third party.

[9] A number of contracts including leases and subleases between Quickie and Parkland required Parkland's consent prior to Quickie's assignment thereof.

[10] Quickie received a letter of interest to buy all its assets from Harnois ("Harnois LOI") which Quickie was interested in pursuing.

[11] The Harnois LOI required that:

(a) it and Quickie negotiate and conclude a final agreement as to the sale and purchase of the Quickie assets, which has not yet occurred;

(b) the assignment by Quickie of its contracts, including leases and subleases to Harnois as the proposed purchaser;

(c) Parkland consent to Quickie's assignment of its leases and subleases in the proposed sale to Harnois; and

(d) Parkland deliver a release of its contractual right to submit an offer to purchase the assets to be sold by Quickie.

[12] Parkland refused to consent:

(a) to Quickie's proposed assignment of contracts including leases to Harnois; and

(b) to release its rights to offer to purchase the proposed assets to be sold by Quickie.

[13] In response to Parkland's refusal, Quickie brought this application.

Relief Sought

[14] Quickie in this application specifically seeks:

(a) a declaration pursuant to s. 23 (1) of the CTA that Parkland unreasonably withheld its consent to Quickie's assignment of its rights, interests, title, benefits, burdens and liabilities under certain leases, subleases and credit/debit card contracts;

(b) an order compelling Parkland to provide its consent to Quickie's assignment of its rights, title, interests, burdens and liabilities under such leases, subleases and credit/debit card agreements; and

(c) a declaration regarding the January 25, 2018 Harnois LOI that:

i. Quickie has fully complied with Parkland's right of first notice of proposed sale of assts and Parkland's opportunity to offer to purchase;

ii. Parkland has no further rights under that opportunity to offer to purchase; and

iii. Quickie is released and forever discharged from any and all obligations, liabilities, actions and claims relating to the opportunity to offer to purchase.

[15] The relationship between these parties are, with exceptions, as contained in the following categories of contracts:

(a) Lease Proposal Agreements regarding several and one of the sites;

(b) lease and sublease contracts per site;

(c) fuel consignment contracts per site; and

(d) debit/credit card agreements per site.

August 12, 2013 Leasing Proposal

[16] CST on August 12, 2013 accepted Quickie's July 31, 2013 leasing proposal ("Proposal #1") which:

(a) contained conditions relative to the lease and sublease agreements which will remain in force for each of the thirteen listed sites;

(b) states CST was to lease the thirteen sites listed therein from Quickie and would then sublease those sites back to Quickie for five years until September 2020 with no right of renewal;

(c) indicated eleven of the thirteen listed sites are among the fifteen sites forming the subject of this proceeding;

(d) indicates two of the sites listed in Proposal #1 are not the subject of this proceeding;

(e) indicates it does not include sites 4, 8, 21 and 61 which are among the sites in this proceeding;

(f) provides terms to be contained in the leases and subleases to be prepared by CST and to be signed;

(g) states the parties were to sign a credit/debit card agreement per site for the loan to and use of such equipment by Quickie for a stipulated monthly fee; and

(h) states Quickie agreed to sign a Motor Fuel Consignment Agreement with CST per site for a monthly fee pursuant to which CST was to supply gasoline on consignment to each site.

Opportunity to Offer to Purchase

[17] Leasing Proposition #1 contains a condition which granted CST the right to offer to purchase any assets Quickie decided to sell. Pursuant thereto, Parkland had the right to submit an offer to purchase if Quickie decided to sell some or all of its assets. In that event, Parkland was entitled to prior notice as to Quickie's intended sale of such assets. Quickie was obliged to accept or reject Parkland's offer to purchase the assets to be sold, before selling such assets to a third party.

[18] Quickie in addition agreed that during the term of the lease, it would give CST any bona fide offer Quickie was willing to accept made by a competitor of CST for the sale and distribution of gasoline for the premises after the expiration of the initial lease term and CST would have the right of first refusal to meet the terms of that competitor's offer.

[19] The above conditions applied to the leases and subleases to be entered into and in the case of para. 15 (a) would remain in force during the duration of those contracts.

[20] Quickie and CST on July 7, 2014 signed a contract which refers to them having entered into Leasing Proposition #1 as to thirteen sites and states they agree to "formalize some general conditions that were part of" Leasing Proposition #1, and specifically CST's right to notice from Quickie of its intention to sell some or all of its assets and to submit an offer to purchase the same.

[21] The relevant revised provisions state:

1. Quickie acknowledges that CST may be interested in acquiring all or a portion of the assets and/or rights, title and interest of Quickie. As such, Quickie agrees to advise CST, first and in advance of any other potential buyer, in the event that it wishes to offer for sale all or a portion of the assets and/or rights, title and interest of Quickie, including in the event of any proposed sale of shares to a third party by any shareholders of Quickie. In the event that an offer to purchase all or a portion of the assets and/or rights, title and interest of Quickie [including the shares of Quickie] is presented to Quickie by any third party, Quickie agrees to advise CST of such an offer and gives CST the opportunity to present its own offer to purchase. In addition, should a bidding process be initiated in connection with the sale of all or a portion of the assets and/or rights, title and interest of Quickie [including the shares of Quickie], Quickie agrees to include CST in this bidding process.

2. If Quickie, or its affiliated companies and shareholders, decide to operate or develop a new motor fuel and/or convenience store location ["new Quickie"] within a radius of 2 km from an existing or proposed motor fuel and/or convenience store location operated by CST, then CST shall have the option to supply this new Quickie with motor fuels under the Ultramar banner or under any of its authorized banners, as the case may be, in accordance with the terms and conditions to be negotiated. (the "FN&O")

[22] These revised FN&O provisions:

(a) oblige the giving of advance notice to CST, prior to any notice to other potential purchasers, if Quickie wished to sell some or all of its assets during the term of the leases and subleases;

(b) obliged during the term of the leases and subleases, that CST be advised by Quickie of any third-party offer received to purchase all or some of its assets and thereupon grants CST the opportunity to present its own offer to purchase;

(c) requires during such lease contracts that if a bidding process is initiated, that Quickie include CST in that bidding process; but

(d) do not grant CST and now Parkland, a right independent of the above to purchase some or all of the assets of Quickie.

[23] Quickie and CST on January 18, 2016, entered into a Leasing Proposition specific to site 61 which contained conditions relative to a lease thereof to CST and a sublease back to Quickie for a period of seven years until May 31, 2023, after which CST would have no option to renew the lease from Quickie ("Leasing Proposition #2").

[24] Leasing Proposition #2 as to site 61 only, like Leasing Proposition #1, states:

(a) the lease to CST and the sublease back to Quickie are to be prepared by CST;

(b) Quickie was to sign a credit/debit card agreement as to the loan of equipment for which it would pay a monthly fee;

(c) Quickie would sign a Motor Fuel Consignment Agreement for which it would pay a monthly fee; and

(d) contains the FN&O provisions as a condition thereof.

[25] Sites 4, 8 and 21 are not owned by Quickie and are not, like the other twelve of the fifteen sites in issue owned by Quickie, specifically referred to in Leasing Propositions #1 and #2 which contain the FN&O provisions.

Lease and Sublease Contracts Per Site

[26] Quickie needed Parkland's consent to assign its lease and subleases as part of any sale of its assets to a third par such as Harnois.

[27] As to Quickie's fee simple ownership of twelve of the fifteen sites Parkland supplied fuel to, Quickie had granted a lease thereof to CST which in turn granted a sublease thereof back to Quickie for eleven of those twelve sites other than site 49 which is governed by a letter of intent.

[28] The head leases from Quickie for each of the eleven sites it owns in favor of Parkland, as well as the letter of intent as to its site 49, each mature on September 30, 2020, except site 61 where the term of that head lease from Quickie matures on May 30, 2023.

[29] Sites 4, 8 and 21 are leased to and not owned by Quickie. The service station lease agreement on site 4, the lease and sublease agreements on site 8 and the indenture to lease on site 21:

(a) as to site 4, matures on September 30, 2021, with a five-year renewal option;

(b) as to site 8, matures on September 30, 2020 and contains no renewal option; and

(c) as to site 21, matures on September 30, 2025 and contains no right of renewal.

[30] The lease agreements therefore on sites 8, 12, 16, 18, 21, 22, 23, 24, 28, 36, 43, 45, 61 and the letter of intent on site 49:

(a) do not contain a right of lease renewal in favor of Parkland after the maturity dates thereof; and

(b) entitle Parkland to be the exclusive supplier of fuel during such lease term.

[31] The length of the Fuel Consignment contracts for each of the sites is one year, is then automatically renewed from year to year, but terminates upon the expiration of the lease or sublease to Parkland.

[32] Due diligence by Parkland during its 2017 purchase of the business of CST would have indicated these 15 sites were only confirmed sources of ongoing revenue, for twelve of those sites until September 2020, or until September 2023 in the case of site 61, until September 30, 2025 as to site 21 and for no longer than 2026 in the case of site 4. This is relevant as to Parkland's first response to the news that Quickie intended to sell its business including its interest in these fifteen sites.

[33] The leases from Quickie as owner provide that:

(a) lease rent was calculated according to a formula based on the volume of gasoline sold on the site;

(b) absent consent, Parkland's motor fuels will be the only fuels sold on the site;

(c) at the end of Quickie's lease to it, Parkland had a first right of refusal to lease the site or to supply gasoline to the site by matching and agreeing to any such offer made by its competitor, failing which Quickie could accept the offer of Parkland's competitor; and

(d) Quickie as lessor required Parkland's consent to assign the lease.

[34] The subleases to Quickie on the sites it owned provide that:

(a) CST and therefore Parkland would be the exclusive gasoline supplier to Quickie for that site during the term of the sublease;

(b) such supply of gasoline constitutes the consideration for entering into the sublease;

(c) the sublease would expire upon the termination of the head lease; and

(d) Quickie could not assign the sublease or sublet the site without Parkland's prior consent.

[35] Parkland owned site 21 which is located in Quebec. Its lease to Quickie states it is governed by Quebec law, that Quickie as tenant could not assign its lease without consent and that Parkland's consent is not to be unreasonably withheld, as similarly provided in s. 23 of the CTA.

Consignment Contract

[36] There are Fuel Consignment contracts for thirteen of the fifteen sites in issue which were signed over time with the predecessors of Parkland. There is no such contract for sites 4 and 49.

[37] Pursuant to the Consignment Contracts:

(a) Parkland, through its predecessors, agreed to supply and store gasoline on consignment to the specific gas-store location operated by Quickie for retail sale to the public;

(b) Parkland remains owner of the gasoline provided to Quickie on consignment and sets the pump price for the gasoline to be sold to the public;

(c) the proceeds of the gasoline sold on site are to be held by Quickie in trust and remitted daily to Parkland. Quickie is entitled to a commission per liter on the gasoline sold to the public;

(d) Quickie pays an annual consignment fee of some $1,500 to Parkland;

(e) Parkland has the exclusive right to sell its gasoline and Quickie agrees to handle only Parkland motor fuel at that site;

(f) the term of such contracts is one year, is renewed automatically thereafter from year to year and terminates upon such election by Parkland or upon the cancellation or expiration of any agreement, if any, by which Parkland leases the site to Quickie; and

(g) there are no provisions as to the law of such contracts, the legal forum to determine disputes, the assignability of such contract, the sale of the site or sale of the business by Quickie or offers to purchase the same.

[38] The duration of the lease and sub-lease agreements effectively determined the length of these fuel supply contracts and fuel supply on consignment per site.

Debit/Credit Card Contracts

[39] Such contracts per site exist for fourteen of the fifteen sites other than site 49.

[40] Under such contracts:

(a) Quickie is loaned equipment including a terminal, a printer and a console for which it pays a monthly fee;

(b) Quickie agrees to accept payment by credit card from named financial banks and lenders;

(c) Quickie agrees to pay specified service charges to the fuel supplier for purchases via credit cards;

(d) the duration of such contracts is one year and thereafter to be automatically renewed annually, with the right of the fuel supplier to terminate the contract for unremedied breaches or if any other contract related to the operation of the premises is terminated or cancelled; and

(e) the contract may not be assigned by Quickie without the prior consent of Parkland.

[41] These contracts contain no right by which Quickie is entitled to terminate such contracts.

Governing Law

[42] Most of the above contracts per site select the Provincial law applicable and the location of the judicial forum.

[43] The leases and subleases for the Ontario sites 16, 22, 24, 28, 43, 45 and 61 each designate Ontario as the law of the contract and Toronto as the selected legal forum. The debit/credit card contracts for those sites select Ontario as the law of those contracts.

[44] Sites 4, ,8 12, 18, 21, 23, and 36 are located in Quebec.

[45] Given that business at those sites were conducted in Quebec and the fact that CST had its head office in Montreal, it is not surprising that Quebec is designated as the law governing and Montreal was the selected legal forum site in the leases and subleases for sites 8 and 23 in Quebec.

[46] Ontario and Toronto however are the selected law and judicial forum in those contracts for Quebec sites 12, 18 and 36.

[47] There is no law or forum site selection in the lease agreements and amending contracts for sites 4 and 21 in Quebec.

[48] Quebec is the selected law governing in each of the debit/credit card contracts for each of the seven sites in Quebec.

[49] None of the fourteen fuel consignment contracts designate the law of the contract or legal forum.

Was Parkland Afforded FN&O Rights

[50] The evidence as indicated in the following chronology indicates Quickie complied with its duties and provided Parkland with first and appropriate notice as well as the opportunity to submit an offer to purchase all business assets to be sold being the term of sale as presented by Quickie.

Chronology

[51] Quickie in July 2017 engaged NRC Realty Capital Advisers ("NRC") as its representative regarding its proposed sale of all of the assets of its fifty-two sites which were to be offered for sale to a selected group of potential purchasers and to be sold to a single purchaser as Quickie wished that its business would continue to be carried on.

October 31, 2017

[52] Parkland signed an information confidentiality agreement with NRC on October 31, 2017, pursuant to which Parkland was granted and frequently exercised access to Quickie's financial information in order to evaluate such proposed sale.

November 2017

[53] NRC prepared a lengthy confidential memorandum ("NRC Memorandum") dated November 2017.

[54] The NRC Memorandum was to be distributed to a limited number of prospective purchasers as an invitation to solicit non-binding indications of interest or proposals by 5 p.m. on December 15, 2017. Quickie was then to select and invite several of those interested parties to submit a bid or offer to purchase. NRC established a virtual deal room of information concerning the assets for sale.

[55] The NRC Memorandum and the Notice to Prospective Bidders:

(a) contains per site information for each of the 52 sites, financial statements per site, square footage and combined gross sales per product line for the prior five years;

(b) states the asset sale was to be of Quickie's 52 locations, including its ownership of real property, equipment, trademarks and inventory, as well as its transfer by assignment of its contracts including leases and franchise agreements;

(c) states that the sale of all assets of the 52 sites are to be sold to a single purchaser;

(d) states that interested prospective bidders are to submit non-binding proposals of interest and Quickie will select those which are to participate in a bidding process to purchase all assets;

(e) discloses Quickie's obligation under the July 31, 2014 Leasing Proposition #1 and the January 18, 2016 Leasing Proposition #2 to notify CST, and therefore Parkland, of any offer to purchase some or all of its assets is received and the right of Parkland to present its own offer to purchase;

(f) provides that the ultimate Asset Purchase Agreement to be prepared would recite Parkland's above rights to purchase all of the assets for sale;

(g) states that upon execution of the Asset Purchase Agreement by Quickie and the successful bidder, Quickie will then offer the transaction to Parkland which will then have the right to submit an offer to purchase all of the assets; and

(h) States that should Parkland submit an acceptable offer to purchase all of the assets, Quickie under the Asset Purchase Agreement would be required to reimburse the otherwise successful bidder for up to $50K of its costs.

[56] The above Notice to Prospective Buyers recites Quickie's obligations and Parkland's rights as set forth in the above sub-paragraphs (e) and (f) to (h).

November 14, 2017

[57] Quickie sent written notice to Parkland on November 14, 2017, in which it states that:

(a) it is giving notice pursuant to paras. 15, 1 and 14 Lease Proposition agreements between itself and CST, dated July 31, 2013, July 7, 2014 and January 18, 2016, of its interest to sell all or a portion of its assets and/or rights;

(b) Parkland already knew Quickie had started a bidding process via NRC, which CST was included in;

(c) CST had already signed a confidentiality agreement, presumably referring to the one signed by Parkland;

(d) Quickie was providing Parkland with the enclosed NRC Memorandum prior to its distribution to other potential purchasers; and

(e) Quickie will advise CST if it receives an acceptable offer to purchase some or all of the assets to be sold, upon which CST will have 7 days to submit an offer to purchase, which if not made or if it is not acceptable, Quickie will be free to accept the third party offer and CST will thereupon have no further rights to purchase any assets or rights of Quickie.

[58] The above letter constitutes compliance by Quickie of its first obligation in the FN&O.

November 28, 2017

[59] Parkland on November 28, 2017, after reviewing the NRC Memorandum and the agreements deposited in the Data Room, sent a proposal to Quickie for discussion purposes only to Quickie which was not binding until execution of a formal agreement by the parties. Parkland states therein that:

(a) it is willing to waive its right of first offer as to the sale of all or a part of Quickie's assets;

(b) it is willing to waive the requirements for its consent to assign the leases and subleases which govern the fuel consignment agreements;

(c) if Parkland agreed to a five-year extension of all consignment dealer arrangements on exiting terms and conditions.

[60] Parkland's then interest was not its purchase of Quickie's of offer assets to be offered for sale or the assignment of the leases and subleases to the ultimate purchaser. Parkland's intention rather was to use the opportunity to gain a five-year extension as the exclusive fuel supplier to the fifteen Quickie sites and thereby extend its exclusive fuel supplier rights that it recently purchased from CST, in consideration for which it would waive its priority right and would consent to the assignment of the leases and subleases to an eventual purchaser of the assets to be sold.

November 29, 2017

[61] Quickie on November 29, 2017 advised Parkland that it was unable to accept its requested five-year extension but hoped Parkland would submit a bid to purchase all of the assets of the fifty-two site chain.

December 15, 2017

[62] On December 15, 2017, Parkland sent Quickie a non-binding letter of intent for its consideration in which Parkland:

(a) expressed interest in purchasing the assets related to five out of the fifty-two sites for sale, for some $16.9 Million;

(b) proposed that Quickie not negotiate the sale of such assets with anyone else prior to March 15, 2018 or any earlier date if they agreed to terminate their negotiations; and

(c) is silent as to its FN&O rights and its required consent to assign the other leases.

[63] Parkland in this notice was ignoring the terms of Quickie's offer for sale, namely what was offered for sale were the assets of the full fifty-two site chain to a single purchaser. Nothing prohibited Parkland from submitting such limited notice of interest, however it did not comply with the all asset, single purchaser terms of the offer to sell.

[64] As stated, Parkland did not have a right to purchase. Its right was to submit an offer and have Quickie decide the acceptability thereof before Quickie accepted the purchase offer of another purchaser.

January 15, 2018

[65] Parkland by letter dated January 15, 2018 advised Quickie that it intended to enforce its rights as to its supply of fuel to 16 sites through fuel consignment dealer arrangements which consist of leases and subleases and supply agreements as well as lease proposal agreements, given its understanding that Quickie intended to not accept its December 15, 2017 notice of interest to purchase the assets of only five sites. Parkland stated:

(a) it had numerous rights which included its right the right to supply fuel to the sites, the right to consent to any assignment of the fuel supply agreements, and the rights of first refusal and of first offer with respect to supply of fuel and purchase of assets, which rights it may waive at its sole discretion;

(b) Parkland had repeatedly offered to work with Quickie and any prospective purchaser to waive its rights as to the assets to be sold and grant its consent to assignment of the leases and subleases, in exchange for term extensions on the agreements;

(c) Parkland was under no obligation to provide any consents or waive any of its rights and that it was in the interest of both parties to negotiate an arrangement early in Quickies sale process; and

(d) it was available to continue negotiations.

[66] Parkland was using the requirement of its consent to the assignment of the leases and subleases as leverage to obtain a five-year extension under those contracts as the exclusive fuel supplier or alternatively purchase and thereby exclude the sale of five sites to a third party.

January 25, 2018

[67] Harnois sent a letter to Quickie on January 25, 2018, which contemplates Quickie's acceptance by execution thereof, which states:

(a) it is a letter of interest to confirm the understanding between them by which Harnois will purchase all of Quickie's assets for all listed sites including leasehold interests for $85 million;

(b) Harnois will purchase all of the Seller's business assets including:

(i) the real property;

(ii) leasehold interests;

(iii) all personal property and equipment;

(iv) all transferrable contracts, licenses, agreements and fuel supply agreements;

(v) all fuel and merchandise inventory; and

(vi) all goodwill and all accounts receivable and cash on hand,

(c) the parties prior to closing may agree to proceed by way of Harnois purchasing all the shares of Quickie and the purchase of any assets not owned by Quickie;

(d) the obligations of the parties to consummate the contemplated transaction is "subject to negotiation and signing of a definitive written purchase agreement … and the closing of the transaction…" and the Harnois LOI therefore "is intended solely as a basis for further discussion and is not intended to be and does not constitute a legally binding agreement, provided however that this paragraph is binding and shall survive the termination of the LOI, together with paragraph 7 herein";

(e) the parties are to use their best efforts to negotiate and execute a Definitive Agreement of purchase and sale on acceptable terms by Feb 15, 2017, which date the parties may agree to extend;

(f) the execution of the formal agreement of purchase and sale is conditional upon Parkland:

(i) providing a full release of its opportunity to offer to purchase the assets of Quickie; and

(ii) Parkland's agreement to the assignment and assumption by Harnois of all of Quickie's right, interest, title, burdens and liabilities in all agreements between Quickie and Parkland;

(g) the obligations thereunder are subject to the satisfaction or waiver of conditions, including negotiation and execution of the final agreement of purchase and sale, satisfactory investigation of the assets by Harnois, and approval by the directors and shareholders of Harnois and by the Canada Competition Bureau; and

(h) termination of negotiations by the Purchaser and the Seller prior to executing a final agreement of purchase and sale shall be without liability and neither party shall be entitled to any form of relief, including damages or injunctive relief. The LOI, prior to an executed final agreement of purchase and sale, will terminate without liability:

(i) upon the written agreement of the parties; and

(ii) the failure by the parties to execute a final agreement of purchase and sale by February 15, 2018, or such later date as agreed to by the parties.

[68] Quickie's obligations to be assumed by Harnois as referred to in sub-paragraph (f) (ii) above include Quickie's obligation to purchase and sell fuel exclusively supplied by Parkland during the remaining term of the lease agreements.

January 29, 2018

[69] Counsel for Quickie sent Harnois' LOI to Parkland on Jan 29, 2018 and stated:

(a) Quickie was willing to accept that Harnois' LOI and will have the right to accept it unless Parkland presents an offer to purchase the assets for sale on terms acceptable to Quickie within seven days, failing which:

(i) Quickie will have the right to accept the Harnois LOI; and

(ii) Parkland will have no further rights to purchase the assets or rights of Quickie under the FN&O. In these circumstances, Parkland in relation to the Harnois LOI was requested:

a. to waive all rights under the FN&O;

b. to release and discharge Quickie from all obligations and claims related to the FN&O;

c. to declare its FN&O was null and void;

d. to consent to Quickie's assignment and Harnois' assumption of all Quickie's rights, interests burdens and liabilities in and to all agreements between Quickie and Parkland; and

e. accordingly was requested to sign and return the enclosed Full Release, Waiver, Discharge and Consent; and

(b) Quickie disagreed with Parkland's January 15 assertion that it was under no obligation to provide consents or waive any of its rights.

[70] The enclosed waiver and consent to be signed by Parkland states:

(a) the release and discharge by Parkland are granted for unspecified consideration;

(b) Parkland acknowledges it will not exercise the purchase opportunity afforded in the FN&O;

(c) Parkland releases Quickie from all obligations and liabilities and actions related to the FN&O which is thereby null and void;

(d) Parkland will postpone its interests under the FN&O to any mortgage or security sought by Harnois in order to complete the purchase transaction pursuant to the Harnois LOI and the contemplated Definitive Agreement to be negotiated and signed; and

(e) Parkland consents to the assignment of and assumption by Harnois of all Quickie's rights, interests, burdens and liabilities of all agreements listed in Schedule D attached, and will execute any additional documents reasonably required to effect the above consent and assignment. Schedule D is a list of 49 contracts over 14 sites including leases, subleases, agreement to lease and credit/debit card agreements per site.

[71] Counsel for Parkland responded on February 5, 2018, stating:

(a) Parkland had responded in good faith including its December 15, 2017 letter of intent offer to buy five of the Quickie sites which Quickie rejected, and has attempted to work towards a reasonable outcome;

(b) the leases and subleases require Parkland's consent before they may be assigned. Parkland has not consented to such proposed assignment and intends to enforce that right;

(c) Quickie's recourse as to the Ontario sites if it considers that Parkland may not withhold consent, is an application under s. 23(2) of the CTA, failing which Parkland asserts its right to withhold consent to assignment of the contracts;

(d) Quickie has not given Parkland the opportunity to present its own offer to purchase all of the assets Harnois wished to purchase as indicated in its January 25, 2018 LOI and contractually must provide that opportunity (paras. 15a, 1 and 14 of the Quickie agreements with CST dated July 31, 2013, July 7, 2014 and January 18, 2016), even if Parkland wishes to acquire only part thereof;

(e) despite its clear obligation, Quickie only gave Parkland the opportunity to offer to purchase all of the assets Harnois wishes to buy and not a portion thereof;

(f) Quickie failed to and must provide Parkland with the prices that Harnois is paying on a site-by-site basis;

(g) Quickie must permit Parkland a meaningful opportunity to purchase a portion of the sites Harnois intends to buy and provide a reasonable period of time for Parkland to submit such an offer;

(h) Parkland did not waive its FN&O rights and did not consent to the proposes assignment of contracts to Harnois;

(i) until compliance with the above requirements, Quickie may not accept the Harnois LOI; and

(j) Parkland will if necessary seek injunctive relief to prevent Quickie from breaching the agreements. (emphasis added)

[72] Quickie subsequently advised Parkland that it requested Harnois' position as to purchasing the assets of forty-seven sites and excluding the five sites Parkland had expressed a willingness to buy, and that Harnois responded it was only prepared to buy the assets of all fifty-two Quickie sites.

[73] Quickie on March 16, 2017, provided Parkland with written confirmation as to the strong financial viability of Harnois from its lending institution.

[74] The uncontested evidence of Quickie is that Harnois is two Quebec corporations whose businesses are the wholesale and retail sale of gasoline throughout Canada, including approximately four hundred Quebec gas stations that they supply, own or operate and had annual revenues in excess of fifteen million dollars. Parkland and Harnois as wholesale suppliers of gasoline to businesses like Quickie, were direct competitors.

[75] Given their competitive positions within the fuel supply industry and the large size of Harnois, Parkland undoubtedly knew Harnois was at least as financially viable, if not more than Quickie, to finance/pay for the supply of fuel on consignment to 15 sites. Parkland had not then raised any issue as to the lack of information as to Harnois' financial viability, which undermines Parkalnd's present complaint as to the late delivery of this letter from Harnois' lender.

[76] Parkland during argument acknowledged that:

(a) it was provided with a short window to make a competing offer however it was not provided with a meaningful opportunity to purchase a portion of the Quickie sites at a competitive price; and

(b) Quickie involved Parkland in the bidding process following Quickie advising Parkland on November 14, 2017 that it would be offering all or a portion of its assets for sale.

[77] Parkland between November 20, 2017 and February 1, 2018, had:

(a) visited the virtual deal room to examine the Quickie's assembled documentation as to its sale of assets for the fifty-two sites on twenty-two occasions for a total of just in excess of eleven hours;

(b) downloaded documentation and data therein 593 times; and

(c) in any event, had its prior knowledge as the exclusive fuel supplier of fifteen sites.

[78] Parkland's inevitable knowledge of its competitors, information accessibility in 2018, the accessibility of public information in 2018 and its access to Quickie financial and business records through NRC fully informed Parkland and enabled it to submit an offer to buy the block of assets to be sold.

[79] The phrase "offer to purchase all or a portion of the assets … of Quickie," as contained in the FN&O clause, is broad enough and includes Harnois' LOI, particularly as the Harnois LOI contemplates that if its proposed terms are accepted by Quickie, the next document to be signed is a formal agreement of purchase and sale.

[80] Seven days is not a lengthy period of time to submit an offer for the purchase of all assets. The sufficiency thereof however must be considered in light of Parkland's prior access to and review of Quickie's financial records for all sites during the previous three months and Parkland's existing knowledge as exclusive fuel supplier of fifteen of the twenty-two Quickie sites selling fuel.

[81] It is apparent that Parkland's priority remained, without contractual entitlement, to obtain a five-year extension as the exclusive fuel supplier to fifteen sites, or to oblige Quickie to restructure its proposed sale of all assets to a single purchaser and force it to sell the assets of five sites only to Parkland. These objectives and the demand that Harnois disclose its opinion as to the value per site are not legal requirements or rights under the FN&O and have no legal merit.

[82] On the above facts, Quickie complied with and provided Parkland with its exercisable rights pursuant to the FN&O provisions regarding first notice and the Harnois LOI.

[83] Should Harnois subsequently indicate its intention to present an offer or negotiate a final agreement of purchase and sale with terms different from the Harnois LOI, or should a different prospective purchaser present an offer, Quickie would thereupon be obligated to comply with its FN&O obligations to Parkland during the remaining terms of the lease agreements.

Whether Parkland Unreasonably Withheld Consent to Assign

[84] Parkland points to the fact that the lease and sublease contracts' requirement that Parkland's consent was required before Quickie could assign the same is absolute and not qualified. That is accurate except as indicated as to Quebec site 21 which is owned by Parkland, where the lease amending agreement states that the required consent by Parkland to Quickie's wish to assign the lease will not be unreasonably withheld, as similarly provided in ss. 23 (1) of the CTA.

[85] The relevant provisions of the CTA state:

Licence to assign not to be unreasonably withheld

23(1) In every lease made after the 1st day of September, 1911, containing a covenant, condition or agreement against assigning, underletting, or parting with the possession, or disposing of the land or property leased without licence or consent, such covenant, condition or agreement shall, unless the lease contains an express provision to the contrary, be deemed to be subject to a proviso to the effect that such licence or consent is not to be unreasonably withheld. R.S.O. 1990, c. L.7, s. 23 (1).

Application to court where consent to assignment or subletting withheld

(2) Where the landlord refuses or neglects to give a licence or consent to an assignment or sub-lease, a judge of the Superior Court of Justice, upon the application of the tenant or of the assignee or sub-tenant, made according to the rules of court, may make an order determining whether or not the licence or consent is unreasonably withheld and, where the judge is of opinion that the licence or consent is unreasonably withheld, permitting the assignment or sub-lease to be made, and such order is the equivalent of the licence or consent of the landlord within the meaning of any covenant or condition requiring the same and such assignment or sub-lease is not a breach thereof. R.S.O. 1990, c. L.7, s. 23 (2); 2006, c. 19, Sched. C, s. 1 (1). (emphasis added)

[86] The leases and subleases in issue contain no express provision as required under s. 23(1) excluding that deemed presumption that consent to assignment will not be unreasonably withheld. The issue therefore is whether Parkland unreasonably withheld consent in refusing Quickie's pursuit of the Harnois LOI which specifically articulates the requirement that Parkland consent to the assignments of leases and subleases.

[87] The s. 23 (1) provision that consent to assignment of a lease not be unreasonably withheld is Ontario law related to the commercial lease of Ontario real property.

[88] Quickie led no evidence as to the Quebec law on this issue, notwithstanding the provision in some of the leases and subleases on sites in Quebec, that Quebec law governs those contracts and Montreal is the judicial forum.

[89] Quickie presented no authority to support its submission that:

(a) Quebec legislation and jurisprudence on this issue is identical to s. 23 of the CTA;

(b) this court should apply the CTA legislation and Ontario jurisprudence to the leases of real property in Quebec, despite the provisions in the lease and sublease contracts on sites 8 and 23 which provide that Quebec and Montreal are the applicable law and legal forum; and

(c) that s. 23 of the CTA applies to the fuel consignment contracts and/or the debit/credit card contracts which Quickie seeks this court by declaration to determine are assignable to Harnois.

[90] Parkland submits it was not acting unreasonably in refusing consent to assign the contracts with Quickie, including leases and subleases, to Harnois because:

(a) the Harnois LOI states that it is open for acceptance until February 15, 2018, after which it expires;

(b) Quickie never executed its acceptance of the Harnois LOI; and

(c) Quickie has produced no evidence that the term of the Harnois LOI has been extended and remains open for acceptance.

[91] Parkland's above arguments ignore the terms of the FN&O which only require Quickie to present Parkland with initial notice and notice of an offer received for the purchase of its assets. Acceptance of that third-party offer or execution of an agreement of purchase and sale are not requirements in the FN&O. Quickie notified its wish to accept the Harnois LOI unless Parkland presented an acceptable offer to buy the assets to be sold.

[92] The evidence from Quickie in any event is that Harnois verbally advised it considers the Harnois LOI remained open for acceptance by Quickie after February 15, 2018.

[93] Parkland in communicating its rejection to the request that it consent to the assignments, pointed to the lease and sublease provisions that Quickie could not assign without its consent, denied that it was acting unreasonably in denying consent to assign, alleged it was acting in good faith in refusing consent and pointed Quickie to its recourse in seeking court approval to assign in the form of this application under ss. 23 (2) of the CTA.

[94] Undoubtedly, Parkland would have alleged breach of the terms of the FN&O had Quickie proceeded to sign an agreement of purchase and sale of all its assets.

[95] Relevant as to whether Parkland acted unreasonably in refusing to consent to an assignment of the leases and subleases include consideration of the following principles:

(a) Quickie has the onus to establish that Parkland acted unreasonably in refusing consent to assign;

(b) as to whether the above burden has been discharged, the question is not whether the court or a reasonable person would have reached the same conclusion but rather whether a reasonable person could have withheld consent;

(c) the party refusing consent to assign need not prove that the reasons which led to its refusal to consent were justified, if that conclusion might be reached by a reasonable person in the circumstances;

(d) withholding consent must however be objectively reasonable in light of all the facts;

(e) materially relevant factors to consider are the information then available and the reasons given at the time of the refusal;

(f) the issue whether the refusal to consent was justified must be considered in light of the terms of the lease which define and limit the subject of assignability and the rights of the tenant to assign and the landlord to withhold consent;

(g) probability that the proposed assignee will default in its obligations under the lease may, depending on the circumstances, be reasonable grounds for withholding consent;

(h) the landlord is entitled to consider its entire property holdings in considering whether to consent to an assignment of one of those properties; and

(i) the financial position of the assignee may be a relevant consideration: 1455202 Ontario Inc. v. Welbow Holdings Ltd., 2003 CanLII 10572 (ON SC), [2003] O.J. No. 1785, para 9 (Sup. Ct.) and Coopers & Lybrand Ltd. v. William Schwartz Construction Co. (1980), 1980 CanLII 1098 (AB KB), 31 A.R. 466, para 41 (Q.B.) (WL).

[96] Parkland also relies upon the Supreme Court of Canada's recognition of the new common law duty of honest contractual performance as determined in Bhasin v. Hrynew, 2014 SCC 7, para. 70. The Supreme Court in that case stated that such duty does not however require a party to forego advantages flowing from the contract or to subordinate its interest in favor of the other party.

[97] Parkland's right in the FN&O that its consent is required before Quickie may assign a lease or sublease, is qualified by the s. 23 (1) presumption that such consent may not be unreasonably withheld. No such legislative presumption so limiting the party's contractual right was in issue in Bhasin or in Willowbrook Nurseries Inc. v. Royal Bank of Canada, 2017 ONCA 974.

[98] The issue remains whether Parkland acted unreasonably in refusing consent to the lease and sublease assignments to Harnois.

[99] The fifteen sites in issue were approximately 0.81% of the 1,848 gas stations Parkland then supplied gasoline to. There is no evidence that the future loss of fuel sales upon the expiration of the existing leases for the fifteen sites in issue would negatively or materially impact Parkland, its other properties, its fuel purchase price discount based on its 2017 retail fuel volume of 5.21 billion litres, or the nature and extent thereof. Quickie's onus on this application does not relieve Parkland from introducing evidence known only to it and material to the issues to be decided which is not before the court.

[100] Assignment of leases and subleases to Harnois would not limit or reduce Parkland's appointment thereunder as the exclusive fuel supplier of the fifteen sites during the term of those contracts, which was the duration of that appointment which Parkland purchased from CST. There is no merit to Parkland's argument that Quickie failed to articulate the implications of the proposed purchase would have on Parkland's position as fuels supplier to fifteen sites. The Harnois LOI contemplates Parkland's consent to the assignment of the leases and subleases which identify Parkland as the fuel supplier during the term thereof and do not require Parkland's agreement to the termination thereof prior to the end of the lease contracts.

[101] Parkland's ability to extend its exclusive fuel supplier appointment after the duration of those leasing contracts depended upon its ability to negotiate new or lease extensions or match any fuel supply offers received prior to the maturity of those contracts. The ability to request another party to enter into a contract is not a right to such a contract.

[102] Parkland after its purchase from CST and prior to Quickie's notice of its intention to sell all its assets, had the ability to seek amendment of the FN&O terms to prohibit asset sales to any of its competitors, or to seek a term extension of the existing leases and subleases. There is no evidence such amendments were sought until the presentation of the Hanois LOI.

[103] Parkland before and upon being served with the Harnois LOI:

(a) was entitled to and requested five-year extensions of the leases and subleases, which request was denied;

(b) submitted an offer to purchase the assets of five of the fifty-two sites which were for sale as a block to a single purchaser, thereby rejecting the terms of the seller's offer of sale; and

(c) was afforded its rights pursuant to the FN&O, including notice and the opportunity to present an offer to purchase, was encouraged to but elected to not submit an offer to purchase the assets of all sites which Quickie listed for sale to be sold to a single purchaser.

[104] Had Parkland successfully bid and purchased all of the assets being sold, it would have had the fuel supply rights for the fifteen sites, plus the additional seven Quickie sites which it did not supply fuel to, in perpetuity and could have sold any assets purchased it was not interested in operating.

[105] The lease and sublease contracts with Quickie did not involve physical possession or occupancy of the sites by Parkland. The commercial head leases and subleases were instead used as a form to secure Parkland's exclusive supply of fuel on consignment during the term of those lease contracts, which would continue during the unexpired term of those contracts in the event of an assignment thereof to Harnois.

[106] Parkland had no contractual lease entitlement because:

(a) the fuel consignment agreements provide that it is the exclusive fuel supplier to that particular site as such annual consignment agreements terminated at the end of the lease term;

(b) one or more of the lease contracts contain language such as a possible "extension or renewal" of that lease at the end of the term, as any extension or renewal was dependent upon the consent of the other party; and

(c) the debit/credit card contracts were renewable annually, as they do not govern the lease terms of the site.

[107] Parkland's attempt in argument to unify or treat the three categories of contracts as a combined agreement, is contradicted in its arguments that this court lacks jurisdiction to order assignment of the debit/credit card contracts as those are separate contracts which are not governed by the s. 23 (1) CTA presumption that lease assignment consent will not be unreasonably withheld.

[108] Parkland in the case of site 21, was contractually obligated to not unreasonably withhold consent to assign the lease.

[109] The leases and subleases between these parties are lease contracts and while they establish Parkland as the exclusive fuel supplier to fifteen of Quickie's twenty-two fuel dispensing sites, during the term thereof, those leasing agreements are separate contracts from the fuel consignment contracts which are not governed by the CTA.

[110] Parkland has articulated no belief at the time nor presented any evidence to contradict Quickie's evidence as to Harnois' then financial capacity to honor its obligations to Parkland for fuel delivered on consignment to the fifteen sites for the balance of the leases and subleases.

[111] Parkland's notice of refusal to consent to the proposed assignment of leases and subleases was a prohibited attempt to obtain benefits exceeding its rights in those contracts, such as a five-year extension of all category of contracts or the right to purchase the assets of five sites: Jo-Emma Restaurants Ltd. v. Merkur & Sons Ltd. [1989] O.J. Np. 1803, paras. 18 and 21 (Sup. Ct.), Ont. 1455202; Ontario Inc. v. Weblow Ltd. 2003 CanLII 10572 (ON SC), [2003] O.J. No. 1785, para. 9(3) (Sup. Ct.); and Dominion Stores Ltd. v. Bramalea Ltd. [1985] O.J. No. 1874, paras. 27 and 34 (Sup. Ct.).

[112] To hold otherwise on these facts would render the CTA s. 23 (1) presumption meaningless, as held in Tradedge Inc. v. Tri-Nova Group Inc. [2009] O.J. 1857, para 38 (Sup. Ct.).

[113] Subject to the following relevant issues, Parkland for the above reasons unreasonably refused to consent to the proposed assignment to Harnois of the fourteen leases and subleases and the one letter of intent which included lease provision, pursuant to s. 23 (1) of the CTA and did not thereby act reasonably as a contractual party pursuant to the common law duty to act in good faith as to those leasing contracts.

Governing Law

[114] Sites 4, ,8 12, 18, 21, 23, and 36 are located in Quebec.

[115] Given that business at those sites were conducted in Quebec and the fact that CST had its head office in Montreal, it is not surprising that Quebec is designated as the law governing the contract and Montreal as the selected legal forum in the leases and subleases for sites 8 and 23.

[116] Ontario and Toronto however are the selected law and judicial forum in those contracts for Quebec sites 12, 18 and 36.

[117] There is no law or forum site selection in the lease agreements and amending contracts for sites 4 and 21 located in Quebec.

[118] Quebec is the selected law governing in each of the debit/credit card contracts for each of the seven sites in Quebec, which is logical given the location of their business use.

[119] No evidence was presented as to:

(a) why the lease and sublease contracts for Quebec sites 8 and 23 located in Quebec are governed by Quebec law with a Montreal designated forum;

(b) why in comparison, the leases and subleases for Quebec sites 12, 18 and 36 are governed by Ontario law;

(c) why in comparison, there is no governing law designation in the lease agreements as to Quebec sites 4 and 21; and

(d) whether the above different law designations and the silence as to the governing law were intentional or a mistake.

[120] The court does not have jurisdiction to speculate as to the intentions of the parties or simply replace contractual terms agreed upon in a contract between large commercial parties.

[121] The Supreme Court has held that forum selection clauses are generally enforced in a commercial context to hold sophisticated parties who are deemed to have informed themselves, to the covenants agreed upon subject to a two-fold test: Douez v. Facebook, 2017 SCC 3, paras. 1, 28 to 31 and Z.I. Pompey Industrie v. ECU-Lione N.V., 2003 SCC 27, para. 20.

[122] The clause selecting Quebec law as governing certain of the Quebec based lease agreements involves and applies "to any dispute resulting from or related to" the lease and sub-lease contracts.

[123] There is no reason such as fraud or public policy for the reasons stated below, to not enforce the Quebec law and forum selection clauses as to the lease and sub-lease agreements located in that jurisdiction.

[124] Parkland at the first step of the above test has demonstrated the validity of the election of Quebec as the governing law contractual term, as they are valid, clear, enforceable and apply to the cause of action involving the Quebec sites before the court.

[125] At step two of the analysis, Quickie then has the onus to show strong reason or cause why this court should not enforce these commercial parties' selection of Quebec as the governing law as to the contracts which involve the leasing of Quebec property to carry on business in that Province. This step two analysis requires consideration of all circumstances, which includes convenience of the parties, fairness between the parties, the interests of justice and public policy.

[126] As stated by the Supreme Court, consideration of Quickie's alleged strong reasons to not enforce the contractual selection of law are to be interpreted and applied restrictively in the case of commercial contracts, as sophisticated parties are justifiably deemed to have informed themselves as to any risks regarding "foreign" law upon entering into the contract and in order to provide the required stability and foreseeability in commercial contexts.

[127] Quickie has not met its onus at stage two.

[128] The leasing of Quebec property to carry on business on those sites are logical grounds in support of that selection of Quebec as the governing law of those contracts.

[129] CST was a Quebec corporation with its head office in that Province. There was nothing "foreign" to it in the selection of Quebec as the governing law for these leases of Quebec properties.

[130] Quickie's principle arguments in favor of overriding the selection of Quebec as the governing law of these contracts are:

(a) that it is illogical that some Quebec sites are contractually governed by Ontario law while other sites in that Province are governed by Quebec law;

(b) these parties should not be obligated to argue before courts in both Ontario and Quebec whether Parkland unreasonably withheld consent to an assignment of the contracts in issue to Harnois, as that could lead to inconsistent decisions.

[131] Quickie on this application elected to present no evidence as to the presence or absence of any reasons to have selected Quebec as the governing law for some sites and Ontario for other Quebec sites.

[132] Quickie elected to present no evidence as to Quebec law including whether it is the same as or how it is different on the issues before the court. Presenting evidence as to the relevant Quebec law would permit the parties to obtain determination of the issues based on the relevant law in one hearing from a single court. Quickie cannot utilize its failure to present the relevant evidence permitting that result to then successfully argue public policy reasons including the risk of inconsistent decisions from two courts in different Provinces warrants overriding the governing law selection on these contracts.

[133] Quickie in any event brought this application and seeks its heads of relief pursuant to the CTA.

[134] The CTA and the court's authority to determine whether consent was unreasonably withheld pursuant to s. 23 (2) of the CTA, does not apply to the lease agreements of Quebec sites, other than sites 12, 18 and 36, which the parties' predecessors contracted would be governed by Ontario law.

[135] The CTA is also inapplicable to contracts such as the debit/credit card contracts, regardless of whether the site they relate to is in Ontario or Quebec.

[136] Quickie presented no authority in support of its position on this issue.

[137] For the above reasons, this court cannot grant the relief requested as to the leases and subleases for Quebec sites 8 and 23 or the seven debit/credit card contracts which are governed by Quebec law.

[138] The court without relevant authority should be and is hesitant to adjudicate on the withholding of consent by a landlord issue regarding the lease agreement for sites 4 and 21 which are located in Quebec.

Debit/Credit Card Contracts

[139] S. 23 of the CTA as stated does not apply to and does not authorize the court to determine that consent to assign the debit/credit card contracts was unreasonably refused.

[140] Quickie's argument that the debit/credit card contracts are "related" to the fuel supply provisions as contained in the lease and sublease contracts and should therefore be considered and determined together, ignores the specific purpose and provisions of those categories of contracts and does not expand the legislative scope of the CTA.

[141] This head of relief as to the debit/credit card contracts therefore is denied.

Release by Parkland of Its FN&O Rights as to Harnois LOI

[142] Parkland has no contractual obligation to provide an executed release of its FN&O rights to Quickie as requested by Harnois. The absence of that contractual obligation prevents declaratory relief in that regard.

[143] Quickie seeks a declaration that it is released and forever discharged from any and all obligations, liabilities, actions and claims relating to the FN&O provisions. As indicated, the scope of that requested relief is too broad and would exclude the ongoing obligation under the FN&O during the term of the lease and sublease agreements, should Harnois submit an offer different from the Harois LOI or in the event a third party submits an offer an offer to purchase some or all of Quickies' assets.

[144] This head of relief is denied.

Conclusion

[145] This application is dismissed for the above reasons.

Costs

[146] Any party seeking costs shall within 30 days from the date of this decision serve and file concise written submissions including a draft bill of costs and an itemized list of the legal services rendered, including the dates, the amount of time and who provided such services.

[147] Cost submissions should address the divided success as to the positions of the parties.

[148] A reply to the above submissions for costs shall be due within 20 days after being served with the above submissions for costs.

Mr. Justice Paul Kane

Released: November 14, 2019