Tradedge Inc. (Shoeless Joe’s) v. Tri-Novo Group Inc.
The appeal is allowed because the application judge, while applying the reasonableness test, failed to consider whether the landlord's refusal to consent was aimed at achieving a collateral purpose or benefit; evidence existed that could support that finding, so the judgment was set aside and the matter remitted for...
Source-derived case information.
- Citation
- 2007 ONCA 562
- Parties
- Appellant: Tradedge Inc. c.o.b. as Shoeless Joe’s; Respondent: Tri-Novo Group Inc.
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 17 August 2007
- Procedural Posture
- Commercial Tenancy / Civil Appeal / Court of Appeal Decision on Appeal From Superior Court; Matter Remitted for Rehearing
- Outcome
- Appeal allowed; judgment of the Superior Court set aside and matter remitted for rehearing by a different judge.
- Legal Topics
- Refusal of Consent to Assignment, Reasonableness of Landlord Consent, Collateral Purpose Doctrine, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tradedge Inc. c.o.b. as Shoeless Joe’s
Appellant
Tri-Novo Group Inc.
Respondent
Procedural Posture
Commercial Tenancy / Civil Appeal / Court of Appeal Decision on Appeal From Superior Court; Matter Remitted for Rehearing
Legal Issues
- 1 Whether the landlord unreasonably withheld consent to an assignment under s.23(2) of the Commercial Tenancies Act
- 2 Whether the respondent's refusal was motivated by a collateral purpose or to obtain a collateral benefit
- 3 Whether the trial judge erred by failing to consider the collateral purpose issue
Ratio Decidendi
The appeal is allowed because the application judge, while applying the reasonableness test, failed to consider whether the landlord's refusal to consent was aimed at achieving a collateral purpose or benefit; evidence existed that could support that finding, so the judgment was set aside and the matter remitted for rehearing by a different judge.
Court Disposition
Appeal allowed; judgment of the Superior Court set aside and matter remitted for rehearing by a different judge.
Orders
- Appeal allowed
- Judgment of June 29, 2005 set aside
Full Case Text
Judgment text and source record
1 paragraphs
Tradedge Inc. (Shoeless Joe’s) v. Tri-Novo Group Inc. Collection Decisions of the Court of Appeal Date 2007-08-17 Neutral citation 2007 ONCA 562 Docket numbers C43951 Judges Rosenberg, Marc; Armstrong, Robert Patrick; Juriansz, Russell G. Subject Civil Decision Content CITATION: Tradedge Inc. (Shoeless Joe’s) v. Tri-Novo Group Inc., 2007 ONCA 562 DATE: 20070817 DOCKET: C43951 COURT OF APPEAL FOR ONTARIO ROSENBERG, ARMSTRONG and JURIANSZ JJ.A. BETWEEN: TRADEDGE INC. c.o.b. as Shoeless Joe’s Appellant and TRI-NOVO GROUP INC. Respondent M.A. Klaiman for the appellant Bruce Jaeger for the respondent Heard and released orally: August 13, 2007 On appeal from the judgment of Justice F. Graham of the Superior Court of Justice dated June 29, 2005. ENDORSEMENT [1] This is an appeal from a judgment dismissing an application under s. 23(2) of the Commercial Tenancies Act for an order finding that the respondent, as landlord, unreasonably withheld its consent to an assignment of the appellant’s lease. [2] The application judge set out the applicable test, which is summarized in 1455202 Ontario Inc v. Welbow Holdings Ltd., [2003] O.J. 1785 (S.C.J., however, his analysis is incomplete. He found a reasonable landlord could have refused to consent to the assignment, but erred in not considering whether the respondent’s refusal was unreasonable in fact because it was designed to achieve a collateral purpose or benefit. In this case, there was evidence that could have supported such a conclusion. [3] Therefore, we allow the appeal, set aside the judgment and remit the matter to be decided by a different judge. [4] In these circumstances, it is unnecessary to determine the motion to admit fresh evidence, which the parties may well tender on the rehearing. [5] The appellant is entitled to his costs of the appeal fixed at $12,000 inclusive of GST and disbursements. [6] The costs of the application before Graham J. are reserved to the judge at the new hearing. “M. Rosenberg J.A.” “R.P. Armstrong J.A.” “R. Juriansz J.A.”