Alderman Holdings Inc. v. McCutcheon Business Forms Ltd. et al.

• Jurisdiction: Ontario
• Court: Ontario Court of Justice General Division (Canada)
• Judge: Belleghem, J.
• Citation: (1997), 42 O.T.C. 354 (GD)
• Date: 23 October 1997
• Subject Matter: LANDLORD AND TENANT,SALE OF LAND

Alderman Holdings Inc. v. McCutcheon (1997), 42 O.T.C. 354 (GD)

MLB headnote and full text

Temp. Cite: [1997] O.T.C. TBEd. NO.001

Alderman Holdings Inc. (plaintiff) v. McCutcheon Business Forms Limited, Malcolm D. McCutcheon Holdings Inc. and William J. Monaghan Holdings Inc. (defendants)

(File No. C40424/97)

Indexed As: Alderman Holdings Inc. v. McCutcheon Business Forms Ltd. et al.

Ontario Court of Justice

General Division

Brampton

Belleghem, J.

October 23, 1997.

Summary:

McCutcheon sold property to Alderman. Alderman leased a substantial portion of the property back to McCutcheon. A clause in the lease required McCutcheon to pay "its proportionate share of ... repairs". Alderman substantially replaced the majority of the roof and passed the costs on to the tenants under the "additional rent" clause referable to repairs. Under that head, Alderman sought partial judgment for McCutcheon's unpaid rental of $26,053.17. Alternatively, Alderman sought an order that the entire roof replacement cost ($51,616.90) be paid by McCutcheon on the ground that McCutcheon, as vendor, failed to disclose a latent defect when it sold the property to Alderman. Both Alderman and McCutcheon brought motions for summary judgment.

The Ontario Court (General Division) dismissed Alderman's motion. The court allowed McCutcheon's motion and dismissed the action. The defective roof was a patent defect. Further, what was done was not a "repair". It was a replacement or a capital improvement and was not caught by the wording of the additional rent clause.

Landlord and Tenant - Topic 1213

The premises - Repairs - By tenant - Extent of obligation - See paragraphs 1 to 20.

Landlord and Tenant - Topic 1235

The premises - Improvements - By landlord - Tenant's liability for cost of - See paragraphs 1 to 20.

Sale of Land - Topic 8626

Remedies of purchaser - For quality defects - Patent defects - See paragraphs 1 to 18.

Cases Noticed:

Amesbury Investments Ltd. v. Lehndorff Investors Services Ltd. (In Trust), [1997] O.A.C. Uned.002 (C.A.), refd to. [para. 21, footnote 1].

Fraser-Reid et al. v. Droumtsekas et al., [1980] 1 S.C.R. 720; 29 N.R. 424; 103 D.L.R.(3d) 385, refd to. [para. 21, footnote 2].

McGrath v. MacLean (1979), 22 O.R.(2d) 784 (C.A.), refd to. [footnote 3].

Vicro Investments Ltd. et al. v. Adams Brands Ltd., [1963] 2 O.R. 583 (H.C.), refd to. [para. 23, footnote 4].

Manchester v. Dixie Cup Co. (Canada) Ltd., [1952] 1 D.L.R. 19 (Ont. C.A.), refd to. [footnote 5].

Counsel:

John L. O'Kane, for the plaintiff;

James D. Lockyer, for the defendants.

These motions were heard before Belleghem, J., of the Ontario Court (General Division), who delivered the following judgment on October 23, 1997.