Brendan Alexander Bell Jones

The Opposing Landlords sought costs after successfully opposing the debtor Applicants' motion to assign 25 commercial leases to a third party in a CCAA proceeding.

The court found that the dispute was a classic adversarial proceeding, entitling the successful landlords to costs.

The court awarded partial indemnity costs to the landlords, including additional costs to Ivanhoe Cambridge for opposing ipso facto relief.

However, the court deferred payment of the costs until the end of the CCAA proceeding to avoid unfairly prejudicing the secured creditors' collateral before priorities are finally determined.

Two defendants appealed a trial judgment awarding substantial damages for breach of fuel-delivery contracts and for inducing breach.

The court upheld findings that Remote breached contract and good faith duties, that Wasaya induced the breach, and that mitigation findings were available on the record.

However, it held the trial judge erred by not applying the contractual limitation clause, reducing Remote’s liability to $50,000 while leaving Wasaya liable for $856,458.

In a landmark CCAA proceeding involving Hudson's Bay Company, the court declined to approve the assignment of 25 major retail department store leases across Canada to a new tenant, Ruby Liu Commercial Investment Corp., despite the transaction representing the highest bid and generating approximately $50 million in net proceeds for creditors.

The court found that the proposed assignee failed to meet the reasonableness standard under section 11.3(3) of the CCAA, particularly regarding its ability to perform the substantial and ongoing obligations under the leases.

The decision emphasizes that section 11.3 is an extraordinary power that must be exercised sparingly, and that the court must balance the interests of all stakeholders, including the contractual counterparties (landlords) who would be compelled into a long-term relationship with an untested and undercapitalized purchaser.

The court also rejected the applicants' arguments that certain lease provisions constituted ipso facto clauses violating the anti-deprivation rule and section 34 of the CCAA.

In this CCAA proceeding, the court granted multiple orders sought by Hudson's Bay Company and related entities, including approval of lease assignment agreements with YM Inc. and Ivanhoe Cambridge, sealing of confidential bid information, extension of the stay of proceedings to October 31, 2025, and approval of the Monitor's reports and activities.

The court rejected requests for adjournment and conditional distributions, finding the lease monetization process was fair and transparent, and that the proposed transactions represent a positive development for stakeholders.

The decision addresses motions regarding the appointment of representative counsel for current and former employees and retirees of Hudson’s Bay Company ULC and related entities in ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings.

The Court declined to appoint any of the nominated law firms as representative counsel at this stage, instead appointing the Honourable Herman Wilton-Siegel as an independent third party to evaluate proposals and make a recommendation.

The Court also approved amendments to the Sale and Investment Solicitation Process (SISP) to remove the company’s art and artifact collection from the SISP and to appoint Heffel Gallery Limited to conduct a separate auction for the collection, subject to further court approval of procedures.

The reasons review the legal framework for appointing representative counsel and the importance of balancing stakeholder interests in complex insolvency proceedings.

The court considered whether Parkland Corporation was entitled to a permanent injunction and other relief against 2700455 Ontario Inc. for breach of an exclusive fuel supply agreement.

The court found that 270 breached the agreement by failing to provide a security deposit and by selling non-Parkland fuel.

The court rejected arguments of frustration and fundamental breach, held the exclusive supply clause enforceable, and granted a permanent injunction prohibiting 270 from selling non-Parkland fuel.

Damages were left for trial, and costs were awarded to Parkland.

This endorsement grants a brief adjournment in the Companies’ Creditors Arrangement Act (CCAA) proceedings involving Hudson’s Bay Company ULC and related entities, following ongoing discussions between the applicants and stakeholders.

The court extends the stay of proceedings, increases the Directors’ Charge, amends the relative priorities of charges, and approves the engagement of Reflect Advisors, LLC as financial advisor.

The court finds the requested relief appropriate, unopposed, and supported by the Monitor, and orders the requested amendments to the Initial Order.

This costs endorsement follows the granting of interlocutory relief to Parkland Corporation in a lease dispute.

The court awards partial indemnity costs to Parkland, finding the respondents' conduct did not rise to the level warranting substantial indemnity.

The decision discusses the principles governing costs, including proportionality, misconduct, and the timing of costs awards.

The appellant tenant operated a duty-free store that suffered a material adverse effect due to COVID-19 border closures.

The tenant invoked a lease provision requiring the landlord to consult and discuss the impact of regulatory changes.

After negotiations failed, the tenant sought a judicially imposed rent abatement.

The motion judge dismissed the request, finding the provision was an agreement to agree, and the landlord had negotiated in good faith.

The Court of Appeal dismissed the appeal, affirming that pre-contractual subjective intentions were inadmissible, the court could not impose a rent adjustment without a contractual mechanism, and the landlord was entitled to pursue its economic self-interest during negotiations.

The decision concerns Parkland Corporation’s motion for interlocutory relief to enforce negative covenants in a lease requiring Caledon Fuels Inc. to operate a gas station as an Ultramar station with fuel supplied by Parkland.

The court grants Parkland leave to register a certificate of pending litigation (CPL) and issues an injunction against Caledon and the purchaser, 16408117 Canada Inc., from breaching the lease.

The ruling addresses the legal tests for a CPL and interlocutory injunction, the effect of actual notice of a lease under the Land Titles Act, and the balance of convenience between the parties.

The applicant, Parkland Corporation, sought an interlocutory injunction to prevent the respondent Dealer from selling non-Parkland supplied motor fuel from a gas station, in breach of a long-term exclusive supply contract.

The court granted the injunction, finding that Parkland demonstrated a strong prima facie case of breach of a negative covenant, which gives rise to a presumption of irreparable harm.

The balance of convenience strongly favored Parkland, as the Dealer's actions appeared pre-meditated and in bad faith, and Parkland would suffer unquantifiable harm to its commercial control, intellectual property, and business model.

The Dealer's various defenses, including an alleged oral agreement, lack of independent legal advice, and corporate oppression, were dismissed as unlikely to succeed.

Parkland Corporation, a fuel supplier, sought a declaration that its lease and sublease agreements with Caledon Fuels Inc., a gas station operator, were in full force and effect, and a permanent injunction to prevent Caledon from breaching exclusive supply covenants.

Caledon argued an alleged oral agreement varied the renewal option and that Parkland breached its duty of good faith.

The court found the alleged oral agreement unenforceable due to lack of consideration and the parol evidence rule, and deemed it unbelievable.

The court also found no breach of good faith by Parkland.

Consequently, the court granted the declaration and permanent injunction in favour of Parkland and awarded partial indemnity costs.

This appeal concerned a dispute over commercial rent arrears, specifically whether a binding rent relief agreement was in place during the COVID-19 pandemic.

The appellant argued the motion judge erred in finding no genuine issues for trial due to alleged inconsistencies and an incomplete record.

The Court of Appeal found no reversible error in the motion judge's factual findings, including that the rent relief offer had expired before acceptance and that no waiver or promissory estoppel applied.

The appeal was dismissed.

The tenant, a duty-free store operator at the Peace Bridge, brought a cross-motion seeking a declaration that it was not required to pay base rent during the 18-month period its store was closed due to COVID-19 border restrictions.

The tenant argued the landlord breached a lease provision requiring consultation on regulatory changes and breached its duty of good faith by making unreasonable demands.

The court dismissed the motion, finding the landlord engaged in good faith negotiations and offered reasonable accommodations.

The court held it cannot rewrite the lease or impose a new rent structure where the parties failed to reach an agreement, as the lease lacked objective benchmarks for such an adjustment.

The Landlord sought summary judgment against a former tenant for rent arrears totaling $367,668.44.

The tenant argued a binding rent relief agreement excused payment and raised defenses of waiver, promissory estoppel, and bad faith.

The court found no genuine issue requiring a trial, determining that the tenant's response to the Landlord's offer was a counter-offer that was never accepted, and the Landlord consistently maintained no rent relief agreement was in place.

All the tenant's defenses were dismissed, and summary judgment was granted in favour of the Landlord for the full amount of arrears plus interest.

This costs endorsement followed a successful application by commercial landlords (Applicants) against Cerieco Canada Corp., a second indemnifier, for payment of garnished funds and outstanding rent.

Cerieco unsuccessfully defended the application.

The Applicants sought costs on a substantial indemnity basis, as contractually provided in the lease.

The court found no "good reason" to deviate from the contractual right to costs, despite the court's inherent discretion.

The Applicants were awarded $56,000 in all-inclusive costs.

Hydro One Networks Inc. appealed a decision denying its claim for a permanent prescriptive easement over a road on the respondent's land, which provides access to its transmission lines.

The application judge had found Hydro One's use was not "as of right" or "continuous." The Court of Appeal found that the application judge misapprehended the evidence regarding the frequency and nature of Hydro One's use, which was sufficient to meet the "continuous" requirement.

The Court also determined that Hydro One's post-2008 interactions with the respondent, aimed at accommodation, did not negate the "as of right" character of its use established prior to the land's registration under the Land Titles Act in 2008.

The appeal was allowed, and the prescriptive easement was declared.