Summary judgment granted for unpaid sports facility license fees during COVID-19 closures; 'pay-if-available' interpretation rejected.
The plaintiff, Extreme Toronto Sports Club (XTSC), held license agreements for sports facilities managed by the defendant, Razor Management Inc. During the COVID-19 pandemic, the facilities were closed or restricted.
XTSC stopped paying license fees, arguing the agreements were 'pay-if-available'.
Razor terminated the agreements for non-payment and counterclaimed for arrears.
On a motion for summary judgment, the court found the agreements required payment for allocated time regardless of availability, subject only to specific bargained-for exceptions.
Razor's termination was valid, and summary judgment was granted for Razor on its counterclaim for $338,984.20.
XTSC's claim for wrongful termination was dismissed.
The court accepted a supplementary book of authorities to address unpleaded issues raised in a late factum, granting leave for further written submissions.
The plaintiff brought a motion for summary judgment.
During the hearing, the defendants raised unpleaded legal issues in their factum, which was served late.
The plaintiff sought to file a supplementary book of authorities to address these new issues, providing it to the defendants at the commencement of the motion.
The court accepted the plaintiff's supplementary book of authorities and heard submissions from both parties.
To ensure fairness, the defendants were granted leave to file written submissions on the cases in the supplementary book within ten days, with the plaintiff allowed a further ten days for reply submissions, both limited to five pages.
