Cummer-Yonge Investments Ltd. v. Agnew-Surpass Shoe Stores Ltd., (1975) 4 N.R. 547 (SCC)

• Judge: Beetz and de Grandpré, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 22, 1975
• Jurisdiction: Canada (Federal)
• Citations: (1975), 4 N.R. 547 (SCC);[1975] ILR 1171;55 DLR (3d) 676;4 NR 547;1975 CanLII 26 (SCC);[1975] SCJ No 74 (QL);[1975] ACS no 74;[1976] 2 SCR 221;55 DLR (3d) 676;[1975] SCJ No 74 (QL);[1976] 2 SCR 221

Cummer-Yonge Inv. v. Agnew-Surpass (1975), 4 N.R. 547 (SCC)

MLB headnote and full text

Cummer-Yonge Investments Ltd. v. Agnew-Surpass Shoe Stores Ltd.

Indexed As: Cummer-Yonge Investments Ltd. v. Agnew-Surpass Shoe Stores Ltd.

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson,

Ritchie, Spence, Pigeon, Dickson,

Beetz and de Grandpré, JJ.

April 22, 1975.

Summary:

This case arose out of a claim by a landlord against a tenant for $208,648. for the loss of a building and for $25,105. for the loss of rental income, all arising out of the destruction of a shopping centre building by fire. The fire was caused by the negligence of the tenant. The tenant raised the defence that the landlord in its lease to the tenant agreed to insure the building against loss by fire. The trial court held that such an agreement to insure relieved the tenant from liability to the landlord for negligence resulting in the loss of the building by fire. The trial court dismissed the landlord's action.

On appeal to the Ontario Court of Appeal the appeal was allowed and the judgment of the trial court was set aside - see 25 D.L.R.(3d) 501. The Ontario Court of Appeal held that the covenant by the landlord to insure against all risks of loss or damage by fire was not broad enough in its language to relieve the tenant from the consequences of the tenant's negligence.

On appeal to the Supreme Court of Canada the appeal was allowed, the judgment of the Ontario Court of Appeal was set aside and the judgment of the trial court was restored in part. The Supreme Court of Canada stated that the agreement by the landlord to insure relieved the tenant from liability to the landlord for negligence resulting in the loss of the building. However, the Supreme Court of Canada held that the agreement to insure did not relieve the tenant from liability for negligence resulting in the loss of rental income by the owner. The Supreme Court of Canada allowed the landlord's claim against the tenant for $25,105. for loss of rental income.

Laskin, C.J.C., Judson and Spence, JJ., dissenting in part, in the Supreme Court of Canada, would have dismissed the landlord's claim for $25,105. for the loss of rental income. Laskin, C.J.C., Judson and Spence, JJ., stated that the landlord agreed to insure against the loss of the building by fire and that the loss of rental income was one of the risks of liability for loss by fire.

de Grandpré and Martland, JJ., dissenting in the Supreme Court of Canada, would have dismissed the appeal and would have affirmed the judgment of the Ontario Court of Appeal. de Grandpré and Martland, JJ., stated that the words used in the agreement by the landlord to insure were not wide enough to exclude the liability of the tenant for its negligence.

Landlord and Tenant - Topic 1628

The premises - Insurance - Fire loss, agreement to insure by landlord, effect of - A landlord in a shopping centre lease agreed to insure the shopping centre building against loss by fire - Whether such an agreement to insure relieved the tenant from liability to the landlord for negligence resulting in a loss of the building by fire - The Supreme Court of Canada stated that the agreement to insure extended to all damage from fire, regardless of how it occurred - See paragraph 10 - The Supreme Court of Canada interpreted the lease and dismissed the landlord's action against the tenant for damages for the loss of the building.

Landlord and Tenant - Topic 1628

The premises - Insurance - Fire loss, agreement to insure by a landlord, effect of - A landlord in a shopping centre lease agreed to insure a building against loss by fire - Whether such an agreement relieved the tenant from liability for negligence resulting in loss of rental income to the owner - The Supreme Court of Canada allowed the owner's claim against the tenant for $25,105. for loss of rental income - The Supreme Court of Canada stated that the agreement by the landlord to insure the building against loss by fire did not extend to the loss of rental income resulting from the destruction of the building by fire - See paragraphs 11, 13 and 38.

Landlord and Tenant - Topic 2605

The lease - Interpretation - Commercial lease - The Supreme Court of Canada stated that in the interpretation of a commercial lease between two business corporations that "the standard of appraisal is business efficacy, not conveyancing preciosity" - See paragraph 20.

Damages - Topic 3903

Interference with economic relations - General principles - Extend of recovery for economic loss - The Supreme Court of Canada stated that recovery for economic loss caused by negligence need not be accompanied by recovery of damages for property damage - See paragraph 14.

Cases Noticed:

United Stores Service, Inc. v. Hutson, [1937] S.C.R. 294, dist. [paras. 2, 30]; folld. [para. 45].

Alderslade v. Hendon Laundry Ld., [1945] 1 K.B. 189, folld. [para. 3].

Rutter v. Palmer, [1922] 2 K.B. 87, folld. [para. 3].

Canada Steamship Lines Ld. v. The King, [1952] A.C. 192, folld. [paras. 4, 43]; dist. [para. 29].

Salmon River Logging Co. Ltd. v. Burt Bros., [1953] 2 S.C.R. 117, folld. [paras. 4, 44].

Shaw v. Robberds (1837), 6 AD. & E 75; 112 E.R. 29, folld. [para. 6].

Attorney General v. Adelaide Steamship Co., [1923] A.C. 292, folld. [para. 6].

Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189, folld. [para. 14].

General Mills Inc. v. Goldman (1950), 184 F. 2d 359, folld. [para. 31].

Morris v. Warner (1929), 279 P. 152, folld. [para. 31].

Sears, Roebuck & Co. Ltd. v. Poling (1957), 81 N.W.2d 462, folld. [para. 31].

Fry v. Jordan Auto Co. (1955), 80 So.2d 53, folld. [para. 31].

Cerny-Pickas & Co. v. C.R. Jahn Co. (1955), 131 N.E.2d 100, folld. [para. 31].

Fred A. Chapin Lumber Co. v. Lumber Bargains Inc. (1961), 11 Cal.Rptr. 634, folld. [para. 31].

Winkler v. Appalachian Amusement Co. (1953), 79 S.E.2d 185, folld. [para. 31].

Wichita City Lines Ltd. v. Puckett (1956), 295 S.W.2d 894, dist. [para. 31].

Dame Virginie Beauchamp v. Consolidated Paper Corporation Limited, [1961] S.C.R. 664, folld. [para. 44].

Statutes Noticed:

Conveyancing and Law of Property Act, R.S.O. 1970, c. 85, sect. 30, sect. 31, sect. 32, sect. 33 [paras. 19, 42].

Short Forms of Leases Act, R.S.O. 1970, c. 436, Schedule B, clause 9 [para. 2].

Counsel:

John P. Bassel, Q.C., and J. Murray Davison, for the appellant;

Brendan O'Brien, Q.C., and L.P. Shannon, Q.C., for the respondent.

This appeal was heard by the Supreme Court of Canada on November 12 and 13, 1974. Judgment was delivered by the Supreme Court of Canada on April 22, 1975 and the following opinions were filed:

PIGEON, J. - see paragraphs 1 to 16.

LASKIN, C.J.C. - see paragraphs 17 to 38.

de GRANDPRE, J. - see paragraphs 39 to 62.

RITCHIE, DICKSON, and BEETZ, JJ., concurred with PIGEON, J.

JUDSON and SPENCE, JJ., concurred with LASKIN, C.J.C.

MARTLAND, J., concurred with de GRANDPRE, J.