CITATION: Tradedge Inc. (Shoeless Joe's) v. Tri-Novo Group Inc., 2009 ONCA 855

DATE: 20091202

CKET: C50582

COURT OF APPEAL FOR ONTARIO

Doherty, Moldaver and Epstein JJ.A.

BETWEEN:

Tradedge Inc., carrying on business as Shoeless Joe’s

Applicant (Respondent in Appeal)

and

Tri-Novo Group Inc.

Respondent (Appellant)

Bruce R. Jaeger, for the respondent (appellant)

Mark A. Klaiman, for the applicant (respondent)

Heard:  December 1, 2009

On appeal from the judgment of Justice Lauwers of the Superior Court of Justice dated May 4, 2009.

APPEAL BOOK ENDORSEMENT

[1]              This was a one issue matter – did the landlord unreasonably withhold his consent to the assignment to extract higher rent from the proposed assignee?

[2]              The application judge was alive to the relevant legal principles (see para. 7).  He made a finding of fact that the landlord’s sole interest in refusing to consent was to secure a higher rent because the current rent was well below market (para. 38).  That finding was open to him.  His conclusion (para. 39) was based on his application of the law to his findings of fact.  The appeal should be dismissed.

[3]              Our disposition should not be taken as accepting the proposition set out in para. 38 of the reasons to the effect that a demand for an increase in rent can never be a reasonable response to a request to an assignment of a lease.  Whether that request is for a “collateral purpose” and, therefore unreasonable, will depend on the entirety of the circumstances.

[4]              The appeal is dismissed.

[5]              Counsel advised that they have agreed that Tradedge should have its costs before Graham J. of $10,000 and costs before Lauwers J. of $4,000.  So ordered.  Tradedge should have its costs of this appeal fixed at $6,500, inclusive of GST and disbursements.