Frego Construction Incorporated v. Mary Lee Candies Limited

alatoire-pour opter pour la seconde. En toute d6f~rence pour les Juges dissidents et d'accord avec les Juges de Ila BavUDY majorit6 en Cour d'Appel, je dirais que, dans les circons- AIM tances, 1'action en dommages-intirits 6tait bien fond6e. et al. I en r6sulte que les trois jugements de la Cour d'Appel Fauteux J. doivent 6tre maintenus et que les quatre appels devant cette Cour doivent 6tre renvoyds, avec d6pens dans chacun des cas.

TASCHEREAU J.:-On the 5th of November 1959, the appellant Frego Construction Inc. leased to respondent Mary Lee Candies Limited a store situated on Lafleur Avenue in the City of Lasalle, described in the lease as follows:

Those certain premises presently being built by the Lessor on Lafleur Avenue, in the City of Lasalle, Province of Quebec, and forming part of a proposed shopping centre to be built by the said Lessor, between the existing building containing the Royal Bank at the corner of Jean Milot Street and Lafleur Avenue, and the existing Steinberg's Supermarket; The said shopping centre being erected on land more fully designated as follows:that certain block of land in the City of Lasalle, Province of Quebec, situated on the northwest side of Lafleur Avenue, being of irregular shape and composed of the whole of Lots. Nos. 958-19-1-1, 958-19-2, 958-19-3, 958-20-1, 958-20-2 and 958-20-3-1 and part of Lot No. 958-19-1-3 of the Official Cadastre of the Parish of Lachine, Registration Division of Montreal, which said block of land measures two hundred and eight and thirty-eight hundredths (280.38') feet in its southeast line along Lafleur Avenue, two hundred and five (205) feet in its Southeast line and two hundred (200) feet in its northeast line, all measurements being English measure and more or less;

The said shopping centre being built by the Lessor shall be referred to hereinafter as 'The Centre';

The premises being built as part of the Centre, which is being leased by these presents to the Lessee herein, shall measure ten feet (10') in frontage center to center of walls along Lafleur Avenue, by a depth of sixty feet (60') more or less; i.e. center lines of partitioning walls. (S.M.W.M.F.).

It is clearly stipulated in the lease and agreed that there will not be another store in the Centre whose business would be devoted primarily towards the sale of candies and nuts. The Centre was built between The Royal Bank, at the 1 [1963] Que. Q.B. 37.

corner of Jean Milot Street and Lafleur Avenue, and the existing Steinberg's Supermarket. Some time later, another store was leased to Laura Secord which company was in the same business. The claim of the respondent is that this had constituted a violation of the agreement and asked that the lease entered into be declared annulled and cancelledTaschereau for all future purposes. Mr. Justice Charbonneau of the

Superior Court dismissed the action, but the Court of

, came to the conclusion that the trial judge's judgment should be reversed, and annulled the lease entered into between the appellant and the respondent.

I have reached the conclusion that the prohibition to lease premises to another store selling candies and nuts, applies only to that portion of the land described in the agreement as the "Centre".

I fully agree with the finding of the trial judge, concurred in by Hyde and Owen JJ., that the new store leased to

Laura Secord was outside the boundaries of the "Centre"

as contemplated by the parties.

I would allow the appeal and dismiss the action with costs throughout.

Appeal allowed with costs.

Polak, Montreal.

Montreal.

S.C.R.