Make Available
Pursuant to Clause 12 Offer to Lease, the plaintiff states that its only obligation was to assist the defendant to obtain the strata council's approval to the parking alterations; ultimately, the responsibility of obtaining strata council's approval to the parking obligation rested with the defendant. The defendant, on the other hand, argues that Clause 1 of Rider A of the Lease clearly places the burden to secure the strata council's approval on the plaintiff, per his obligation to “make available” the parking stalls to the defendant under the Lease.
The phrase “make available” supports a variety of meanings. The Concise Oxford Dictionary (9th ed. 1995) defines “available” as having a primary meaning of “capable of being used; at one's disposal” and a secondary meaning of “obtainable; within one's reach.” The Merriam-Webster Online Dictionary 2010 lists the following synonyms for “available”: “accessible, acquirable, attainable, obtainable, procurable” and related words such as “provided”, “supplied”, “open”, “public”, and “unrestricted” ... the word “make” invokes a further meaning: a requirement of action on the part of a person who is required to make something available – e.g. “to make it happen”; “to make way”; “to make safe” etc. – thereby overlaying a meaning that extends beyond the plaintiff's narrow interpretation that see the plaintiff required only to assist the defendant.
Diamond Robinson Building Ltd. v. Conn |
2010 CarswellBC 115 (B.C. S.C.) at para. 71, 72 |
Brown J.