With a napkin figuratively tucked in to his judicial robe, Nova Scotia Supreme Court Justice John P. Bodurtha issued a weighty ruling this week:
“I find soft-serve ice cream and smoothies are distinctly different from frozen yogurt.”
Bodurtha presided over a dispute between the Second Cup and OPB Realty, owners of Halifax Shopping Centre, over whether the Second Cup location in the mall could sell frozen yogurt.
The two parties are governed by a lease that contains a use clause, but they disagreed over whether that clause permits Second Cup to sell frozen yogurt, including Pinkberry frozen yogurt and yogurt parfait, at its HSC location.
The use clause says the tenant can sell “specialty coffees, coffee, espresso-based beverages, teas, other hot, cold and blended beverages, gourmet coffee products, coffee in bean or bulk form and as ancillary thereto the sale of non-perishable food products, including, but not limited to, desserts, pastries, baked goods, dessert squares, muffins, croissants, Danishes, scones, tarts, rolls, cakes, donuts, biscotti, bagels, cookies and pre-made specialty sandwiches."
The lease also permits the sale of other merchandise if it doesn’t conflict with other mall tenants.
An affidavit stated that two other tenants within Halifax Shopping Centre, Dairy Queen and Freshly Squeezed, sell frozen yogurt.
But a witness who was cross-examined on his affidavit was pressed on the difference between soft-serve ice cream and frozen yogurt, and responded that he considered them the same.
He also said Freshly Squeezed had frozen yogurt in their smoothies but agreed it did not sell it separately.
Bodurtha deliberated on the parties’ interpretation of the terms dessert and non-perishable, ruling that “the word dessert is more general than the specific types of items that are listed after it. Therefore, dessert must mean something other than ‘pastries, baked goods, dessert squares, muffins, croissants, Danishes, scones, tarts, rolls, cakes, donuts, biscotti . . . and cookies (being the other sweet items that may otherwise be considered dessert in the list). All these various baked desserts are removed from the category of dessert by virtue of the list, yet dessert must refer to something (i.e., some food item) if it is at least as non-perishable as the other items listed. Frozen yogurt would fall into this category."
Bodurtha wrote that the mall owners argued that had the parties envisioned frozen yogurt being sold at Second Cup when the lease was drafted, they would have included words to make that clear.
“They argue that the fact they did not use those words makes it clear that the offer to sell frozen yogurt was never intended by the parties,” he wrote.
“I disagree and find the contrary. The parties would not have used the word dessert if they did not intend some unlisted, uncontemplated sweet items might eventually be sold by Second Cup. . . . Reading the use clause as a whole, frozen yogurt is not excluded.
“I find soft-serve ice cream and smoothies are distinctly different from frozen yogurt and, in particular, the Pinkberry frozen yogurt offered for sale by Second Cup. There was no evidence before me as to whether these items are in direct competition, and, therefore, again, I find no reason to read the use clause restrictively to limit competition in the (Halifax Shopping Centre).”