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
|
TED AIRD, VIVIEN AIRD, GLENN ALSIP, SHIRLEY ALSIP, SHIRLEY BEATTIE, AL BOSSERT, ROGER BOYCE, PAT BOYCE, JIM COLLINS, OLIVE COLLINS, REG COOPER, PAT COOPER, BILL DAVIES, JESSIE DAVIES, ED DAVIES, ELAINE DAVIES, TONY DAVIS, JACKIE DAVIS, NELL DOORNBOSCH, WILLARD EDWARDS, ETHNA EDWARDS, PATRICIA ELLIOT, ARCHIBALD ELLIS, KURT FENGLER, ANNA FENGLER, LARRY FENGLER, RENATE FENGLER, TOM GLANCY, SHIRLEY GLANCY, JOE GRZYB, DORLES GRZYB, JOHN GUILIANA, BRITT GUILIANA, ED HOLMES, ETHEL HOLMES, HELEN HOLZWORTH, HERB HOLZWORTH, SOPHIE HONCH, KATHY HRISHUK, MIKE HRISHUK, PETER JOHNER, HELEN JOHNER, ERNIE KAHLER, HILDA KAHLER, RON BACON, Executor of the Estate of JOSEPH KOVACS, GERRY McCARTHY, MARILYN McCARTHY, RON McCOMB, ROSE McCOMB, PETER MEISTER, INGRID MEISTER, WAYNE MITCHEL, TRUDIE MITCHEL, DIANE MOORE, JOHN MOORE, BERNIE MORRIS, JOHN MORSE, CATHERINE MORSE, ROY NEFF, DAISY NEFF, JOAN OLLIFFE, JOHN OSTENDORF, NELLIE OSTENDORF, ROXIE PARKER, KEN PATTERSON, JEFFREY PUNSHON, DOREEN PUNSHON, PAT RADBOURNE, ELAINE EBY, DOROTHY REID, LYNNE REYNAN, ED ROGOZINSKY, DELORES ROGOZINSKY, DEREK ROLPH, BETTE ROLPH, DAVID SCHELLENBERG, JOHN SNIJDERS, JANNIE SNIJDERS, RUDY SNIJDERS, JOHN SONNEVELDT, WILLIE SONNEVELDT, TOM SPANN, IRMA SPANN, HARLYN SPROULE, FAYE SPROULE, HENRY STRYD, ADRIANA STRYD, STAN TURNER, HAL WESTON, DOLORES WESTON, DON WHITTAKER, MARYANN WHITTAKER, CATHERINE KNUDSEN, HOWARD KNUDSEN, MARGARET MAKI, LEO MAKI, LORENZ LOHNINGER, HANNELORE LOHNINGER, MARGARET TIBBEN, RALPH CHURCHILL, SANDRA CHURCHILL, JANET REED, CHRIS SEABROOK, MARGARET SEABROOK, FRED HOWSE, PHYLLIS HOWSE, MACE HARRISON, IRENE HARRISON, BUD THOMPSON, MARJORIE THOMPSON, JOHANNA AUBERTIN, GORDON SIDDONS, ROSEMARY SIDDONS, RUSS GRILLS, DIANE GRILLS, BILL MILLER, GERRY MILLER, DEBORAH INNES, ARLEE MISFELDT, JANET MISFELDT, ALAN McLEAN, STANLEY BAXTER and GRACE BALES |
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
|
TED AIRD, VIVIEN AIRD, GLENN ALSIP, SHIRLEY ALSIP, SHIRLEY BEATTIE, AL BOSSERT, ROGER BOYCE, PAT BOYCE, JIM COLLINS, OLIVE COLLINS, REG COOPER, PAT COOPER, BILL DAVIES, JESSIE DAVIES, ED DAVIES, ELAINE DAVIES, TONY DAVIS, JACKIE DAVIS, NELL DOORNBOSCH, WILLARD EDWARDS, ETHNA EDWARDS, PATRICIA ELLIOT, ARCHIBALD ELLIS, KURT FENGLER, ANNA FENGLER, LARRY FENGLER, RENATE FENGLER, TOM GLANCY, SHIRLEY GLANCY, JOE GRZYB, DORLES GRZYB, JOHN GUILIANA, BRITT GUILIANA, ED HOLMES, ETHEL HOLMES, HELEN HOLZWORTH, HERB HOLZWORTH, SOPHIE HONCH, KATHY HRISHUK, MIKE HRISHUK, PETER JOHNER, HELEN JOHNER, ERNIE KAHLER, HILDA KAHLER, RON BACON, Executor of the Estate of JOSEPH KOVACS, GERRY McCARTHY, MARILYN McCARTHY, RON McCOMB, ROSE McCOMB, PETER MEISTER, INGRID MEISTER, WAYNE MITCHEL, TRUDIE MITCHEL, DIANE MOORE, JOHN MOORE, BERNIE MORRIS, JOHN MORSE, CATHERINE MORSE, ROY NEFF, DAISY NEFF, JOAN OLLIFFE, JOHN OSTENDORF, NELLIE OSTENDORF, ROXIE PARKER, KEN PATTERSON, JEFFREY PUNSHON, DOREEN PUNSHON, PAT RADBOURNE, ELAINE EBY, DOROTHY REID, LYNNE REYNAN, ED ROGOZINSKY, DELORES ROGOZINSKY, DEREK ROLPH, BETTE ROLPH, DAVID SCHELLENBERG, JOHN SNIJDERS, JANNIE SNIJDERS, RUDY SNIJDERS, JOHN SONNEVELDT, WILLIE SONNEVELDT, TOM SPANN, IRMA SPANN, HARLYN SPROULE, FAYE SPROULE, HENRY STRYD, ADRIANA STRYD, STAN TURNER, HAL WESTON, DOLORES WESTON, DON WHITTAKER, MARYANN WHITTAKER, CATHERINE KNUDSEN, HOWARD KNUDSEN, MARGARET MAKI, LEO MAKI, LORENZ LOHNINGER, HANNELORE LOHNINGER, MARGARET TIBBEN, RALPH CHURCHILL, SANDRA CHURCHILL, JANET REED, CHRIS SEABROOK, MARGARET SEABROOK, FRED HOWSE, PHYLLIS HOWSE, MACE HARRISON, IRENE HARRISON, BUD THOMPSON, MARJORIE THOMPSON, JOHANNA AUBERTIN, GORDON SIDDONS, ROSEMARY SIDDONS, RUSS GRILLS, DIANE GRILLS, BILL MILLER, GERRY MILLER, DEBORAH INNES, ARLEE MISFELDT, JANET MISFELDT, ALAN McLEAN, STANLEY BAXTER and GRACE BALES |
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia on October 26, 2005)
[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