Ontario Civil


Appeal

LEAVE TO APPEAL
Business deal entered into by parties could not now be rewritten

Application for leave to appeal two arbitration decisions and secure relief from forfeiture of lease of premises where both parties operated dental practices. Parties had shared leased space for decade under Agreement to Cost Share, which ended on May 20, 2013. Last few years had been unhappy and parties were now fighting over lease, which expired in August 2013. ACS provided that, if lease was renewed, agreement would renew too and parties certainly no longer wanted to work together, but each wanted to stay at premises. Tenant under lease was both parties’ professional corporations and neither party was prepared to allow other to deal with landlord separately. In any event, no notice of renewal had been given and landlord had advised lease would terminate on August 31, 2013. Applicant wanted to compel landlord to accept extension of lease, and defer to later date determination of which dentist would get sole occupancy. Applicant sought leave to appeal arbitrator’s decision parties had not entered binding settlement agreement and extension decision, and sought relief from forfeiture. Application dismissed. Arbitrator found any binding settlement was terminated when applicant refused to withdraw proposal to shorten time for respondent to negotiate lease renewal. Whether parties concluded binding settlement was, at most, question of mixed fact and law, and issue of anticipatory repudiation was arbitrator’s application of legal test to facts. There was no question of law with respect to settlement award, so threshold test for leave under s. 45(1) Arbitration Act, 1991 (Ont.), was not met. In extension decision, arbitrator found he had no jurisdiction over landlord and lease and could not order renewal by one party. Applicant’s motion to amend notice of application to request leave to appeal extension decision was dated more than 30 days after decision was released, so was out of time. There was no explanation for delay, particularly since extension decision was released just one day after settlement award. Furthermore, applicant did not raise question of law, as application of test for injunctive relief was one of mixed fact and law. There was no basis to grant relief from forfeiture. Applicant’s claim turned on nature of rights engaged under lease and neither dentist had right to exercise option to renew alone. Business deal entered into by parties could not now be rewritten. As applicant had no right to renew alone, there was no serious issue for trial.

Dr. K. Ansarian Dentistry Professional Corp. v. Dr. A. Mohajeri Dentistry Professional Corp. (May. 9, 2013, Ont. S.C.J. [Commercial List], D.M. Brown J., File No. CV-13-10045-00CL, CV-13-10061-00CL) 230 A.C.W.S. (3d) 352.

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