Christopher Liang

Following the dismissal of the appeal, the court received written submissions on costs.

The court ordered the appellant to pay the respondents' costs fixed at $25,000, plus disbursements and applicable HST.

The appellant tenant sought to overturn a summary judgment, arguing that commercial landlords have a duty to mitigate damages even when they do not accept a tenant's repudiation of a lease, and that a lease clause capped damages.

The Court of Appeal affirmed the motion judge's decision, holding that it was bound by Supreme Court of Canada precedent (Highway Properties v. Kelly, Douglas & Co.) which states no such duty to mitigate exists when the landlord insists on performance of the lease.

The court also upheld the motion judge's interpretation of the lease clause, finding that the two-year rent cap on damages only applied if the landlord had terminated the lease, which it had not.

The appeal was dismissed.

The Plaintiffs/Defendants by Counterclaim brought a motion under Rule 59.06 to vary a prior judgment, alleging errors in the calculation of rental damages and pre-judgment interest.

The court found a manifest error in its reasons regarding the date used for rental damage calculation, clarifying that the awarded amount was for rent up to November 3, 2022, not June 15, 2023.

However, the court declined to vary the pre-judgment interest calculation, finding it was not a slip or manifest error but an amount agreed upon by counsel.

The motion to vary the judgment itself was dismissed, with the court providing a direction to clarify the reasons.