Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation: Plazacorp Retail Properties Ltd. v. Mailboxes Etc., 2009 NSCA 40

Date: 20090421

Docket: CA 293910

Registry: Halifax

Between:

Plazacorp Retail Properties Limited, a body corporate

Appellant

Respondent on Cross-Appeal

v.

2502731 Nova Scotia Limited, a body corporate, carrying

on business under the firm name and style of Mailboxes Etc.

Respondent

Appellant on Cross-Appeal

Judge:                The Honourable Justice Linda Lee Oland

Appeal Heard:    January 26, 2009               

                          Subject:         Contracts - Commercial Leases - Exclusivity Clauses -       

Damages       

Summary:        A tenant in a shopping mall sued its landlord, alleging breach of its lease and, in particular, the exclusivity clause.  The trial judge found that the landlord had breached the lease by allowing another business which carried on principal business activities that included many of the primary services offered by the tenant, to open in that mall.  He awarded damages for lost net earnings and loss of business goodwill, but dismissed the claims of aggravated or punitive damages.  The landlord appealed and the tenant cross-appealed.

Issues:              Did the trial judge err in finding the lease had been breached?  Did he err in awarding the damages he did?  Did he err in refusing to award damages for aggravated or punitive damages?

Result:             Appeal and cross-appeal dismissed.  The standard of review for the interpretation of the commercial lease is correctness.  An analysis of the exclusivity clause in its entirety together with the restriction on use clause leads to the conclusion that the landlord had breached the lease, although for different reasons than set out by the trial judge.  In his assessment of damages and his refusal to award damages, the trial judge committed no error which would justify the intervention of this court.