A Sudbury judge has ruled Zellers, the anchor store in Sudbury's downtown mall, will be able to close its doors at the end of next week as scheduled.
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However, Justice Robert Del Frate of the Ontario Superior Court of Justice would not make any ruling on whether the retail giant broke its lease with the Rainbow Value Centre by announcing in late February it was closing its doors for good effective May 15.
The issue of whether Zellers has breached its lease agreement should be decided by another judge following the completion of a civil trial, said Del Frate.
Last week, lawyers for Vista Sudbury Hotel Inc., which owns the downtown Rainbow Outlet Centre, sought an injunction against Zellers, asking the store be ordered to remain open despite the fact almost all of its stock has been cleared out in anticipation of the May 15 closing date.
Vista lawyers argued Zellers did not give appropriate notice, were breaching their long-term lease and closing the anchor store would cause irreparable harm to the entire mall.
Part of the injunction sought by Vista would have forced Zellers to remain operating in the mall until at least next spring.
However, Del Frate, in a written decision, ruled granting an injunction is a drastic and extraordinary remedy and there was insufficient evidence before him to grant such a remedy.
Â?This is not a situation that warrants the granting of an extraordinary remedy of an interlocutory mandatory injunction,Â? said the veteran judge.
Del Frate also disagreed that the closing of the Zellers store would devastate the mall financially.
Â?I am neither convinced that Vista has proved that it faces irreparable harm nor that damages cannot adequately compensate for any harm in the event that Zellers is found to be in breach of the leasing agreements,Â? he said.
Lawyers for Zellers had argued no Ontario court has ever granted an injunction forcing a business to stay open and should not be in the business or telling retail outlets when to open or close stores or conduct their business.
Lawyers for Zellers told the court the downtown Sudbury location was Â?near the topÂ? in yearly losses of its 315 outlets in Canada, with annual losses over the past five years since Eaton's left the mall averaging between $500,000 and $750,000 a year.
Lawyers for Zellers also reiterated the retail giant is closing its store, but will continue to pay full rent and other subsidiary charges for repair and maintenance until its lease expires next April.
It's expected mall management will not work long and hard to secure another tenant to take up most or all of the 73,000 square feet of retail space that will be available when Zellers does close its doors next weekend.
Mall management could not be reached for comment.
