Loblaws Inc. v. The General Inc., (2007) 271 Nfld. & P.E.I.R. 337 (NLTD)

• Judge: Adams, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: September 14, 2007
• Jurisdiction: Newfoundland and Labrador
• Citations: (2007), 271 Nfld. & P.E.I.R. 337 (NLTD)

Loblaws v. The General Inc. (2007), 271 Nfld. & P.E.I.R. 337 (NLTD);

    826 A.P.R. 337

MLB headnote and full text

Temp. Cite: [2007] Nfld. & P.E.I.R. TBEd. SE.012

Loblaws Inc. (applicant) v. The General Inc. (respondent)

(200701T0591; 2007 NLTD 160)

Indexed As: Loblaws Inc. v. The General Inc.

Newfoundland and Labrador Supreme Court

Trial Division

Adams, J.

September 14, 2007.

Summary:

Loblaws leased three properties from General. Loblaws closed a supermarket which had operated on one of the properties in 1995. Loblaws and General had both tried unsuccessfully to find a sub-tenant for that property. Loblaws obtained an offer to sublet the property to a business which proposed to operate a bargain centre and flea market. Loblaws requested General's consent to the sublease. General refused to consent. Loblaws sought a declaration that General was unreasonably withholding its consent, contrary to the lease.

The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the application.

Landlord and Tenant - Topic 5606

Subleases - Granting of subleases - Consent of landlord - Unreasonable withholding - What constitutes - Loblaws leased three properties from General - Loblaws closed a supermarket which had operated on one of the properties in 1995 - Loblaws and General had both tried unsuccessfully to find a sub-tenant for that property - Loblaws obtained an offer to sublet the property to a business which proposed to operate a bargain centre and flea market - The lease contained the standard general clause that the consent of the landlord to subletting by a tenant would not be unreasonably withheld - General refused to consent to the sublease on the basis that the type of business being proposed was inconsistent with General's corporate strategy which was to enter into relationships with financially sound national corporations who dealt in first class trade/business activity and who were considered in the industry as an "anchor tenant" - The Newfoundland and Labrador Supreme Court, Trial Division, held that it was not unreasonable for General to have refused its consent - It was not unreasonable for General to conclude, inter alia, that such a business use would lower or diminish the market perception of its property and might also affect the marketability of its other two properties.

Cases Noticed:

Canada Safeway Ltd. v. Rene Management & Holdings Ltd., [1999] 11 W.W.R. 759; 139 Man.R.(2d) 165; 1999 CarswellMan 206 (Q.B.), refd to. [para. 14, footnote 1].

Dominion Stores Ltd. v. Bramalea Ltd., [1985] O.J. No. 1874 (Dist. Ct.), refd to. [para. 14, footnote 1].

Ayre's Ltd. v. Atlantic Shopping Centres Ltd. (1989), 79 Nfld. & P.E.I.R. 347; 246 A.P.R. 347 (Nfld. C.A.), refd to. [para. 14, footnote 1].

Community Drug Marts P & S Inc. Estate v. Schwartz (William) Construction Co. (1980), 31 A.R. 466; 116 D.L.R.(3d) 450 (Q.B.), refd to. [para. 18, footnote 6].

Coopers & Lybrand Ltd. v. Schwartz (William) Construction Co. - see Community Drug Marts P & S Inc. Estate v. Schwartz (William) Construction Co.

Lehndorff Canadian Pension Properties Ltd. v. Davis Management Ltd. (1989), 59 D.L.R.(4th) 1 (B.C.C.A.), refd to. [para. 21, footnote 7].

Bromley Park Garden Estates v. Moss, [1982] 2 All E.R. 890 (C.A.), dist. [para. 25, footnote 8].

Counsel:

Robert P. Stack, for the applicant;

David P. Goodland, for the respondent.

This application was heard before Adams, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following judgment on September 14, 2007.