Substance or Form: Are Burritos Wraps?

Roberto Aburto & Layla Piedra Abu Sharar

Most people would never think of this question as a legal one, but in a recent 2018 decision of the Ontario Superior Court of Justice (2432714 Ontario Inc. v. Heffner Development Group Limited, 2018 ONSC 1034 (CanLII)), this was a principle question at issue, in the context of an injunction relating to a leasing dispute.

Justice Sheard stepped in to settle a dispute between the restaurant tenant, that operated a Pita Pit at the New Hamburg plaza and the landlord of the plaza. The landlord agreed to lease a unit to Holy Guacamole, a Mexican restaurant which offered tacos, burritos and quesadillas on its menu. The issue was that Pita pit had signed a lease with the landlord which included a clause that prevented the landlord from leasing any unit to a restaurant that sold similar foods to that sold by Pita Pit, namely pitas and wraps. The lease provided:

  • 2.02 The Leased Premises are leased to the Tenant(s) for the purpose of operating, conducting, and carrying on, in, and from the whole of the Leased Premises pitas and wraps (hereinafter defined as the “Primary Product(s) and/or Services(s)) and for no other purpose save and except that the Tenant(s) may also sell the Secondary Product(s) and/or Service(s) as provided in Section 2.06 of this Addendum B, Use of Leased Premises. Sale of alcohol, pizzas, chicken wings, panzerotti and Italian sandwiches are not permitted.
  • 2.03 … the Landlord covenants and agrees that throughout the Term and any Extension Term(s), the Landlord shall not lease any portion of the Centre, other than the Leased Premises, to be used for the sale of the Primary Product(s) and/or Service(s).

Pita Pit took this matter to court seeking an injunction stating that tacos, burritos and quesadillas are “prepared by taking savoury foods and wrapping them in a tortilla”, which constitutes the making of a wrap. The landlord on the other hand, held that Holy Guacamole’s menu was quite distinct to the wraps offered by Pita Pit.

I think most of us would agree that it is the contents inside a wrap, a tortilla or even a sandwich that give the product a unique status. The landlord in this case argued that wraps and burritos are distinguished by the cultural origin. Holy Guacamole’s food is Mexican inspired, whereas pitas have Arabic origins. This on its own is a sufficient difference between the two types of food, given the distinctive cultural influence in the flavours, spices and ingredients used to make each of them.

Pita Pit filed evidence from Daniel Pashman, a food journalist and commentator who purported to provide an expert opinion on whether the food sold by Holy Guacamole consists of wraps. Mr. Pashman has gained notoriety for his publications on “is a hot dog a sandwich”.[1] Mr. Pashman stated that the foods sold by Holy Guacamole, just like that of Pita Pit’s, are delivered by way of a wrapped covering, suggesting that this was enough to make them the similar. He described Holy Guacamole’s food as “burrito wraps, taco wraps and quesadilla wraps”, but who has ever referred to a burrito as a “burrito wrap”, or a taco as a “taco wrap”?

As an injunction was sought by the landlord, the test considered by the Court is that set out by the Supreme Court in RJR Macdonald, namely: (1) that there is a serious issue to be tried; (2) whether irreparable harm will be suffered if the injunction is not granted; and (3) a consideration of the balance of convenience.

Surprisingly, Justice Sheard ruled in favour of Pita Pit and granted an injunction to keep Holy Guacamole from opening its doors. She found that there was a serious issue to be tried as to whether the food sold by Holy Guacamole included wraps. In my opinion, she did not give as much importance to each product’s distinct qualities, as she did to the similarity in the way they are delivered, that is by way of a wrapped covering. The standard that was met was only whether there was a serious issue to be tried; so stay tuned for a more determinative statement on this critical topic.

[1] A hot dog is a sandwich according to Mr. Pashman.

Roberto Aburto is a Partner practicing in municipal law at Gowling WLG (Canada) LLP’s Ottawa office. Layla Piedra Abu Sharar is a law student at the University of Ottawa. Roberto and Layla are proud members of the CHBA’s mentor/mentee program.