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