Sundance Investment Corp. v. Richfield Properties Ltd. and Beaver Lumber Co., (1983) 41 A.R. 231 (CA)

• Judge: McClung, Harradence and Belzil, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 19, 1983
• Citations: (1983), 41 A.R. 231 (CA)

Sundance Inv. Corp. v. Richfield Prop. (1983), 41 A.R. 231 (CA)

MLB headnote and full text

Sundance Investment Corporation Ltd. v. Richfield Properties Limited and Beaver Lumber Company Limited

(14303)

Indexed As: Sundance Investment Corp. v. Richfield Properties Ltd. and Beaver Lumber Co.

Alberta Court of Appeal

McClung, Harradence and Belzil, JJ.A.

January 19, 1983.

Summary:

One of the two main tenants in a small shopping center was refused approval of a sublease by the landlord on the ground that the other major tenant objected. The lease provided that a withholding of consent to sublet was not unreasonable if the other major tenant objected to the nature of the business to be carried on by the proposed subtenant. The tenant brought an action for a declaration that it be relieved from obtaining consent on the ground that the consent was unreasonably withheld. The Alberta Court of Queen's Bench in a judgment unreported in this series of reports dismissed the action. The tenant appealed.

The Alberta Court of Appeal, Harradence, J.A., dissenting, dismissed the appeal and held that the landlord was entitled to withhold consent.

Landlord and Tenant - Topic 5606

Subleases - Granting of - Consent of landlord - Unreasonable withholding - What constitutes - The lease of one of two major tenants in a small shopping center provided that the lessor's consent to sublet could not be arbitrarily or unreasonably withheld - Withholding consent was deemed not to be unreasonable if the other major tenant objected to the nature of the business of the proposed subtenant - The tenant's proposed subletting to a major family restaurant was objected to by the other tenant because severe parking congestion would result - The Alberta Court of Appeal held that the lessor was entitled to withhold consent - See paragraphs 1 to 21.

Landlord and Tenant - Topic 5606

Subleases - Granting of - Consent of landlord - Unreasonable withholding - What constitutes - The Alberta Court of Appeal held that the burden is on a tenant who proposes to sublet to show that the landlord has unreasonably withheld his consent and is not on the landlord to prove that he was justified in withholding consent - See paragraphs 23, 27.

Landlord and Tenant - Topic 5606

Subleases - Granting of - Consent of landlord - Unreasonable withholding - What constitutes - The Alberta Court of Appeal stated that a landlord's consent to sublet is not unreasonably withheld, if the landlord's own financial interest will be adversely affected, such as by the damaging of another tenant's business, where rent is a percentage of income - See paragraphs 22 to 28.

Cases Noticed:

Coopers and Lybrand Ltd. v. William Swartz Construction Co. Ltd. (1980), 116 D.L.R.(3d) 450; 31 A.R. 466, appld. [para. 22].

Community Drug Marts P & S Inc. v. William Schwartz Construction Co. Ltd. (1980), 116 D.L.R.(3d) 450; 31 A.R. 466, appld. [para. 22].

Grove v. Portal, [1902] 1 Ch. 727, consd. [para. 39].

Canada Safeway Ltd. and Oshawa Holdings Ltd. v. Triangle Acceptance Ltd., [1980] 3 W.W.R. 352; 5 Man.R.(2d) 22 (Man. Co.Ct.), affd. [1980] 5 W.W.R. 259; 19 Man.R.(2d) 292 (Man. C.A.), consd. [para. 42].

Bromley Park Garden Estates v. Moss, [1982] 1 W.L.R. 1019, consd. [para. 45].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 27, para. 371 [para. 23].

Counsel:

C.D. O'Brien, for Sundance Investment Corporation (appellant);

J.G. Grennan, for Richfield Properties Limited (respondent);

G. McKibben, for Beaver Lumber Company Limited (respondent).

This case was heard before McCLUNG, HARRADENCE and BELZIL, JJ.A., of the Alberta Court of Appeal.

On January 19, 1983, the judgment of the Court of Appeal was delivered and the following opinions were filed:

BELZIL, J.A. - see paragraphs 1 to 29;

HARRADENCE, J.A., dissenting - see paragraphs 30 to 51.

McCLUNG, J.A., concurred with BELZIL, J.A.