Canada Safeway Ltd. v., (1999) 139 Man.R.(2d) 165 (QB)

• Judge: Wright, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 30, 1999
• Jurisdiction: Manitoba
• Citations: (1999), 139 Man.R.(2d) 165 (QB)

Can. Safeway Ltd. v. Rene Mgt. (1999), 139 Man.R.(2d) 165 (QB)

MLB headnote and full text

Temp. Cite: [1999] Man.R.(2d) TBEd. MY.020

Canada Safeway Limited (applicant) v. Rene Management & Holdings Ltd. (respondent)

(CI 98-01-08877)

Indexed As: Canada Safeway Ltd. v.

Rene Management & Holdings Ltd.

Manitoba Court of Queen's Bench

Winnipeg Centre

Wright, J.

April 30, 1999.

Summary:

Canada Safeway Ltd., a lead tenant in a shopping mall, moved to a nearby location. Canada Safeway Ltd. applied for a declara­tion that the landlord had unreasonably withheld consent to a sublease.

The Manitoba Court of Queen's Bench dismissed the application.

Landlord and Tenant - Topic 5606

Subleases - Granting of subleases - Con­sent of landlord - Unreasonable withhold­ing - What constitutes - Canada Safeway Ltd., a grocery store, was one of the two lead tenants in a shopping mall - Safe­way's lease would expire in about six months - However, Safeway had the right to renew for two further five year periods -Safeway moved to a nearby mall and sought approval of a sublease to Liquida­tion World Inc. - The landlord withheld consent - Safeway applied for a declar­ation that the consent was unreasonably withheld - The landlord argued that Safe­way's motive was to prevent occupation of the premises by a competitor - The Mani­toba Court of Queen's Bench held that Safeway failed to discharge the onus on it to show that consent was withheld unreas­onably - The landlord was entitled to protect the character and integrity of the mall and its refusal to consent to the sub­lease was reasonable.

Cases Noticed:

Federal Business Development Bank v. Starr et al. (1986), 55 O.R.(2d) 65 (H.C.), refd to. [para. 20].

Bickel v. Duke of Westminster, [1976] 3 All E.R. 801 (C.A.), refd to. [para. 21].

Jo-Emma Restaurants Ltd. v. Merkur (A.) & Sons Ltd. (1989), 7 R.P.R.(2d) 298 (Ont. Dist. Ct.), refd to. [para. 22].

Canada Safeway Ltd. and Oshawa Hold­ings Ltd. v. Triangle Acceptance Ltd., [1980] 5 W.W.R. 259; 19 Man.R.(2d) 292 (C.A.), refd to. [para. 23].

Bates v. Donaldson, [1896] 2 Q.B. 241 (C.A.), refd to. [para. 27].

Statutes Noticed:

Landlord and Tenant Act, R.S.M. 1987, c. L-70; C.C.S.M., c. L-70, sect. 22 [para. 11].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed. 1955), vol. 23, p. 634, para. 1340 [para. 19].

Counsel:

Theodor E. Bock, for the applicant;

John M. Scurfield, Q.C., and Peter Hala­mandaris, for the respondent.

This application was heard before Wright, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the follow­ing judgment on April 30, 1999.