Diana Restaurant Ltd. v. Saint John (City) and Holland, (1969) 1 N.B.R.(2d) 154 (CA)

• Judge: Bridges, C.J.N.B., Limerick and Hughes, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: January 30, 1969
• Jurisdiction: New Brunswick
• Citations: (1969), 1 N.B.R.(2d) 154 (CA)

Diana Restaurant v. Saint John (1969), 1 N.B.R.(2d) 154 (CA);

    1 R.N.-B.(2e) 154

MLB headnote and full text

Sommaire et texte intégral

Diana Restaurant Ltd. v. The City of Saint John and Raymond Holland

Indexed As: Diana Restaurant Ltd. v. Saint John (City) and Holland

Répertorié: Diana Restaurant Ltd. v. Saint John (City) and Holland

New Brunswick Court of Appeal

Bridges, C.J.N.B., Limerick and Hughes, JJ.A.

January 30, 1969.

Summary:

Résumé:

The New Brunswick Court of Appeal affirmed trial judge's dismissal of plaintiff's action for damages and for an injunction where defendant City of Saint John leased to the defendant Holland, for restaurant purposes, a portion of the City Market which restaurant business directly competed with the plaintiff's restaurant business being conducted by the plaintiff on premises in the City Market also leased from the defendant City of Saint John.

The New Brunswick Court of Appeal refused to imply a term restricting the City from leasing any of the City Market for restaurant purposes where plaintiff's lease contained restrictive clause applying only to a small portion of the ground floor of the City Market building.

The New Brunswick Court of Appeal held that while lease to defendant Holland was in contravention of a city Bylaw, that the plaintiff/appellant could not base an action against either of the defendants on the Bylaw or a contravention of the Bylaw.

Landlord and Tenant - Topic 2325

The lease - Implied terms, conditions or covenants - Restrictive business covenant - Whether term to be implied restricting business competition (New Brunswick Court of Appeal).

Municipal Law - Topic 6385

Actions against municipality - Cause of action - Breach of own bylaw - Effect of bylaw - Liability of municipality where it fails to follow its own bylaw (New Brunswick Court of Appeal).

Cases Noticed:

Connolly v. The City of Saint John (1904), 36 N.B.R. 411 and affirmed by the Supreme Court of Canada in (1904), 35 S.C.R. 186, folld.

Hamlyn & Co. v. Wood & Co., [1891] 2 Q.B. 488 at p. 491, folld.

Lazarus v. Cairn Line of Steamships Ltd. (1912), 106 L.T. 378, folld.

Shirlaw v. Southern Foundaries (1926) Ltd., [1939] 2 K.B. 206, folld.

Broome v. Pardess Co-Operative Society of Orange Growers (Est. 1900) Ltd., [1940] 1 All E.R. 603, folld.

Orpen v. Roberts et al., [1925] S.C.R. 364, folld.

Wynant v. Welch, [1943] 1 D.L.R. 13 (Ont. C.A.), folld.

Bertrand v. Neilson and City of Vancouver, [1934] 3 W.W.R. 433, folld.

City of Montreal v. Mulcair (1898), S.C.R. 458, folld.

Counsel:

J.D. Harper, for plaintiff/appellant;

Deno P. Pappas, for City of Saint John;

Henry E. Ryan, Q.C., for Raymond Holland.

The judgment of the Court was delivered by Bridges, C.J.N.B.