Sharon Sybil Wong

The appellant landlord appealed a decision finding the respondent tenant not liable for excess hard costs incurred in constructing a commercial building.

The dispute centered on a clause in the Offer to Lease requiring the tenant to pay excess costs provided they were in accordance with contracts approved by the tenant.

The appellant argued the clause was a meaningless vestige from an earlier draft, but the Court of Appeal disagreed, finding the plain meaning of the contract required the tenant's approval.

The appeal was dismissed, and the respondent's cross-appeal on costs was also dismissed.

The applicant landlord sought a determination that the tenant was required to contribute to construction cost overruns under two offers to lease for commercial space in a shopping centre.

The agreements provided that the tenant would pay excess hard construction costs above a specified amount per square foot if such costs were approved in advance by the tenant or incurred under approved contracts.

The court held that the tenant’s prior approval of construction contracts or excess costs was a clear condition precedent to any obligation to pay cost overruns.

Because the landlord failed to obtain such approval before construction was completed, the tenant was not liable for any excess costs.

The court also held, obiter, that if liability had arisen, the cost of constructing the underground garage would have been included as part of the hard construction costs.

The appellant appealed a decision regarding the interpretation of an agreement of purchase and sale.

The appellant had inserted an earlier date as the acceptance date, which would have shortened the 60-day due diligence period.

The Court of Appeal upheld the motion judge's finding that the contract was created on the date the written acceptance was delivered to the purchaser.

Consequently, the purchaser's withdrawal was within the due diligence period, and it was entitled to the return of its deposit.

The appeal was dismissed.

The appellant gas company appealed a declaration that the respondent municipality's right to purchase the gas distribution system arose upon the expiry of the 20-year term of their franchise agreement.

The Court of Appeal allowed the appeal, holding that the franchise agreement explicitly made the municipality's right to purchase subject to section 10 of the Municipal Franchises Act.

Under section 10, the Ontario Energy Board has the power to renew or extend the franchise.

Therefore, the franchise does not terminate, and the municipality's right to purchase does not arise, if the Board orders an extension.

The City of Kingston moved for leave to intervene in an appeal between the City of Sudbury and Union Gas Limited regarding the interpretation of a franchise agreement and the jurisdiction of the Ontario Energy Board under s. 10 of the Municipal Franchises Act.

Kingston argued there was a common question of law with its own pending appeal involving Union Gas.

The court dismissed the motion, finding that the factual and legal contexts of the two proceedings were significantly different and that the disadvantages of permitting the intervention outweighed the advantages.

The City of Kingston sought leave to appeal a decision of the Ontario Energy Board regarding the renewal of Union Gas Ltd.'s franchise to operate a gas distribution system in the former Township of Pittsburgh.

The City also sought a stay of the OEB's order and an expedited hearing.

The court held that under the Ontario Energy Board Act, 1998, the City had a statutory right of appeal without needing leave, as its provisions overrode the leave requirement in the Municipal Franchises Act.

The court granted a partial stay of the OEB's order pending the appeal but denied the request for an expedited hearing before a single judge.