Windsor Apothecary Ltd. v. Wolfe Group Holdings Ltd., (1996) 140 Sask.R. 233 (QB)

• Judge: Maurice, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 04, 1996
• Jurisdiction: Saskatchewan
• Citations: (1996), 140 Sask.R. 233 (QB)

Windsor Apothecary v. Wolfe Group (1996), 140 Sask.R. 233 (QB)

MLB headnote and full text

Windsor Apothecary Ltd. (plaintiff) v. Wolfe Group Holdings Ltd. (defendant)

(1995 Q.B.G. No. 1171)

Indexed As: Windsor Apothecary Ltd. v. Wolfe Group Holdings Ltd.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Maurice, J.

March 4, 1996.

Summary:

The plaintiff leased premises in the defen­dant's mall. The lease prevented subletting without the defendant's consent, which was not to be unreasonably withheld. The plain­tiff subsequently requested the defendant's consent to sublease a portion of its premises. The defendant refused to consent. The plain­tiff felt that the consent was unreasonably withheld and brought an action against the defendant.

The Saskatchewan Court of Queen's Bench held that the defendant's withholding of consent was reasonable and dismissed the action.

Landlord and Tenant - Topic 5606

Subleases - Granting of subleases - Con­sent of landlord - Unreasonable withhold­ing - What constitutes - The plaintiff leased premises in the defendant's mall for use as a pharmacy - The lease prevented subletting without the defendant's consent, which was not to be unreasonably withheld - The plaintiff felt that a medical doctor in the mall was necessary for its economic well-being - When the defendant was unsuccessful in attracting a doctor to the mall, the plaintiff decided to attempt to sublease a portion of its premises to a doctor and requested the defendant's con­sent - There was vacant space in the mall at the time - The defendant refused to consent - The Saskatchewan Court of Queen's Bench held that the withholding of consent was rea­sonable where it was not in the defend­ant's economic interest to allow the plain­tiff to compete against it for ten­ants.

Landlord and Tenant - Topic 5606

Subleases - Granting of subleases - Con­sent of landlord - Unreasonable withhold­ing - What constitutes - The Saskatchewan Court of Queen's Bench stated that "[a]t one time, to be considered reasonable, the withholding of consent by a landlord had to be connected to the personality of the intended sublessee or with his probable user of the property ... This view of the law has fallen into disfa­vour, and the modern approach is for a court to put itself into the position of the landlord and, hav­ing regard to the sur­rounding circumstances, the commercial realities of the marketplace and the eco­nomic impact of the sublease on the land­lord, determine whether a reasonable land­lord would con­sent to the sublease" - See paragraph 3.

Cases Noticed:

Jerol Investments Ltd. v. Deaco Holdings Ltd. (1983), 28 Sask.R. 137 (Q.B.), refd to. [para. 2].

Sundance Investment Corp. v. Richfield Properties Ltd. et al., [1983] 2 W.W.R. 493; 41 A.R. 231 (C.A.), refd to. [para. 2].

Houlder Bros. & Co. v. Gibbs, [1925] Ch. 575 (C.A.), refd to. [para. 3].

Federal Business Development Bank v. Starr (1986), 41 R.P.R. 151 (Ont. H.C.), refd to. [para. 3].

Lehndorff Canadian Pension Properties Ltd. v. Davis Management Ltd., [1989] 5 W.W.R. 481 (B.C.C.A.), refd to. [para. 3].

Counsel:

K.A. Ready, Q.C., for the plaintiff;

P.A. Kelly, Q.C., for the defendant.

This case was heard before Maurice, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on March 4, 1996.