Are bur­ri­tos wraps? Judge steps into dis­pute be­tween restau­rant, plaza owner

Waterloo Region Record - - Local - GOR­DON PAUL

NEW HAM­BURG — It’s a wrap!

A judge has stepped into a dis­pute be­tween a restau­rant tenant and a New Ham­burg plaza, tem­po­rar­ily prevent­ing the land­lord from leasing a unit to an­other restau­rant that may of­fer sim­i­lar food.

The ex­ist­ing tenant, Pita Pit, has an agree­ment with the land­lord that no other restau­rant sell­ing sim­i­lar prod­ucts will be al­lowed to open up shop there.

But the land­lord agreed to let the Mex­i­can restau­rant chain Holy Gua­camole move into the plaza. It was set to open later this month. Then the case went to court.

The big ques­tion is: Does Holy Gua­camole sell wraps? Pita Pit says yes. The land­lord says no.

“Holy Gua­camole’s menu lists three types of food prod­ucts: tacos, bur­ri­tos and que­sadil­las,” Jus­tice Liza Sheard said in a re­cap of the case. “(Pita Pit) as­serts that all three of those food prod­ucts are wraps in that they are pre­pared by tak­ing savoury foods and wrap­ping them in a tor­tilla.”

Pita Pit filed an af­fi­davit from ac­claimed food jour­nal­ist Daniel Pash­man, “who pur­ported to pro­vide an ex­pert opin­ion on

whether food sold by Holy Gua­camole are wraps,” Sheard said.

“In Pash­man’s opin­ion, bur­ri­tos, soft tacos and most que­sadil­las are wraps in that they are foods that are ‘de­liv­ered’ by way of a wrapped cov­er­ing. He de­scribes the tenant’s prod­ucts as ‘pita wraps’ and Holy Gua­camole’s prod­ucts as ‘bur­rito wraps, taco wraps or quesadilla wraps/ sand­wiches.’”

The land­lord, Heffner De­vel­op­ment Group Ltd., ac­knowl­edges that food sold at Holy Gua­camole may be sim­i­lar to Pita Pit food “in that they are both flat­breads and are used to en­case or wrap food.”

But it main­tains Holy Gua­camole food is dif­fer­ent from Pita Pit’s of­fer­ings be­cause Holy Gua­camole’s prod­ucts orig­i­nate in Mex­ico, while a pita is “Ara­bic, Le­banese or Syr­ian bread.”

Heffner De­vel­op­ment dis­putes that Pash­man is an ex­pert and main­tained that if his opin­ion is ac­cepted, one could con­clude a wrap is not a food prod­uct but a de­liv­ery sys­tem.

The land­lord notes food sold at restau­rants al­ready op­er­at­ing in the plaza “could also be seen as in breach of the land­lord’s ex­clu­siv­ity clause,” the judge said.

Heffner De­vel­op­ment points to Scran & Dram Scot­tish Pub­lic House, which sells hag­gis, “a savoury pud­ding en­cased in an an­i­mal’s stom­ach or an ar­ti­fi­cial cas­ing, and Twice-the-Deal Pizza that sells panze­rot­tis, a savoury turnover en­closed in dough,” the judge said.

Pita Pit main­tains that if it loses cus­tomers to Holy Gua­camole, it may not sur­vive.

Sheard ruled in Pita Pit’s favour on Mon­day.

“I find that the tenant has made out a prima fa­cie (ac­cepted as cor­rect un­til proven oth­er­wise) case that the food sold by Holy Gua­camole in­cludes wraps,” the judge said.

Whether the land­lord has or will breach the lease by al­low­ing Holy Gua­camole to open in the plaza will be de­ter­mined at a trial.

The judge agreed to a re­quest from Pita Pit for a pre­trial in­junc­tion prevent­ing Holy Gua­camole from open­ing.

The plaza, called Water­loo Place Plaza, is at 338 Water­loo St. in New Ham­burg.

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