Froyo a go in Halifax Second Cup legal dispute, judge rules

A battle over frozen yogurt that pitted a coffee shop against its landlord ended up in Nova Scotia Supreme Court, where a judge decided the Second Cup franchise in the Halifax Shopping Centre should be allowed to sell Pinkberry Frozen Yogurt.

Cushman and Wakefield, the management company that operates the mall on behalf of its owners, had argued the frozen yogurt would put the Second Cup franchise in direct competition with two other food retailers in the mall, Dairy Queen and Freshly Squeezed.

The judge questioned whether there was anything in the mall's lease agreements that would prevent direct competition between tenants.

Lawyers for Cushman Wakefield argued that Second Cup's lease did not permit it to sell frozen yogurt.

Portions of the lease restrictions were included in the decision by Justice John Bodurtha that was published Wednesday.

Lease restrictions

"Tenant shall use the Store only for the sale at retail of 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 premade specialty sandwiches all for on or off premises consumption," said the document.

In his analysis, the judge weighed the legal meanings of non-perishable and dessert, and whether a product that required refrigeration, such as frozen yogurt, could be considered non-perishable.

One of the owners of Second Cup, Paul Kieley, testified that he tried to buy frozen yogurt at Dairy Queen and Freshly Squeezed, but was unable to do so.

A Cushman Wakefield executive testified he saw no difference between the yogurt Second Cup wanted to sell and the soft ice cream that is a staple of Dairy Queen's menu.

The judge concluded that "There is nothing in the Use Clause to preclude frozen yogurt as a 'dessert' or a continuation of the foods in the list."

On Wednesday, Edward Grant, the co-owner of the Second Cup franchise in the Halifax Shopping Centre, said theyhave not yet installed the refrigeration equipment necessary to sell the frozen yogurt, but will do so soon.