Country Park Village Properties (Mainland) Ltd. v. Aird, 2005 FCA 352

Date: 20051026

Docket: A-254-04

Citation: 2005 FCA 352

CORAM:        DESJARDINS J.A.

EVANS J.A.

MALONE J.A.

BETWEEN:

                      COUNTRY PARK VILLAGE PROPERTIES (MAINLAND) LTD.

                                                                                                                                            Appellant

                                                                           and

                                                                                                                                      Respondents

                                Heard at Vancouver, British Columbia on October 26, 2005.

          Judgment delivered from the Bench at Vancouver, British Columbia on October 26, 2005.

REASONS FOR JUDGMENT OF THE COURT BY:                                          DESJARDINS J.A.

Date: 20051026

Docket: A-254-04

Citation: 2005 FCA 352

CORAM:        DESJARDINS J.A.

EVANS J.A.

MALONE J.A.

BETWEEN:

                      COUNTRY PARK VILLAGE PROPERTIES (MAINLAND) LTD.

                                                                                                                                            Appellant

                                                                           and

                                                                                                                                      Respondents

                                     REASONS FOR JUDGMENT OF THE COURT

            (Delivered from the Bench at Vancouver, British Columbia on October 26, 2005)

DESJARDINS J.A.

[1]                This is an appeal of the decision of Layden-Stevenson J. wherein she concluded that the rent increase proposed by the appellant did not accord with the required standard of "Fair Market Rent" contained in the sublease for property situated on lands that are part of the Skowkale Indian Reserve in the Sardis area of Chilliwack, B.C., in what is known as the Fraser Valley.

[2]                We are of the view that the Trial Judge was correct in law when she held that the term "Fair Market Rent" in the sublease was equivalent to "Basic Rent".

[3]                The headlease was of no assistance in the interpretation of the sublease since there was no inconsistency between the headlease and the sublease.

[4]                While the sublease is not a document devoid of difficulties, it makes clear that the charges which come under the term "Additional Rent" in article 3.02 are accountable by the sublandlord. In our view, the appellant is not entitled, at its option, to include these charges in the "Fair Market Rent" of article 2.01 so as to claim a "gross rent", a term not found in the sublease.

[5]                The Trial Judge had no choice but, in effect, to subtract the term "Additional Rent" from article 2.01(h) or, as she did, interpret the term "Basic Rent" in article 2.01 as equivalent to "Rent" and to "Fair Market Rent".

[6]                We agree when she refused to interpret the definition of "Rent" in article 2.01(h) as meaning an aggregate of Basic Rent and Additional Rent. The conclusion she came to was based on a correct interpretation of the relevant provisions of the sublease.

[7]                We are also of the view that it was open to the Trial Judge both to determine, from the various comparables, the one which was closest to the residential property at stake and to make the adjustments that she chose.

[8]                The appellant concedes that if we confirm the Trial Judge's interpretation of the sublease, the appellant must account for the Additional Rent it included in the "gross rent" collected from the year 1997 onward.

[9]                This appeal will be dismissed with costs.

(Sgd.) "Alice Desjardins"

J.A.

                                                  FEDERAL COURT OF APPEAL                                                 

                           NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          A-254-04                      

STYLE OF CAUSE:                          Country Park Village Properties (Mainland) Ltd. v. Ted                                                               Aird et al

PLACE OF HEARING:                    Vancouver, B.C.

DATE OF HEARING:                      October 26, 2005          

REASONS FOR JUDGMENT: DESJARDINS, EVANS , MALONE JJ.A.

REASONS READ FROM THE BENCH BY: DESJARDINS J.A.

APPEARANCES:

Mr. George E.H. Cadman, Q.C.                                                FOR THE APPELLANT

Mr. John R. Singleton, Q.C.                                                      FOR THE RESPONDENT

Ms. Barbara Cornish

SOLICITORS OF RECORD:

Boughton Peterson Yang Anderson                                            FOR THE APPELLANT

Law Corporation

Vancouver, British Columbia

Singleton Urquhart                                                                   FOR THE RESPONDENT

Vancouver, British Columbia