Dylan Baker

The appellant purchased furniture, fixtures, and equipment, including a large racking system, from insolvent tenants under a court-approved Liquidation Process Order in bankruptcy proceedings.

The appellant failed to remove the racking from the landlord's distribution centre/warehouse before the lease disclaimer date and multiple deadlines.

The trial judge dismissed the appellant's conversion claim, finding that the racking was deemed abandoned pursuant to the Sale Guidelines incorporated in the Liquidation Process Order, which provided that any fixtures or personal property left in a store after the sale termination date and lease disclaimer would be deemed abandoned.

The Court of Appeal upheld the trial judge's interpretation, holding that the deemed abandonment provision was irrebuttable when read in the context and purpose of the insolvency proceedings, and that the appellant could have sought a variation of the order through the come-back provision but failed to do so.

The appeal and the respondents' cross-appeal on damages were both dismissed.

This commercial lease appeal addressed validity of default and termination notices, the resulting lease termination findings, and related costs rulings.

The court upheld the application judge’s determinations and dismissed both the main appeal and the costs appeal after granting leave on costs.

The Ontario Court of Appeal dismissed the appeal from a summary judgment ordering the appellants, 2562583 Ontario Inc. o/a Meltwich Food Co. and Janarthanan Jeyaparan, to indemnify the franchisor, Meltwich Hospitality Group Inc., for amounts paid to the landlord, Ritson Division Retail GP Limited, following the franchisee’s breach of a commercial lease.

The court upheld the motion judge’s findings that the franchisee’s breach triggered indemnity obligations under the franchise and assignment agreements, and that the settlement between the franchisor and landlord was reasonable.

The appellants’ arguments regarding the scope of indemnity, timing of liability, and procedural fairness were rejected.

The appellant appealed an application judge's order declaring a basement unit part of the premises leased by the respondent.

The original lease defined the premises as "the whole," and while an amended lease changed the rent calculation method, the definition of the premises did not change.

The appellant argued the new rent calculation implied the basement was excluded.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation that the rent calculation merely changed the method for the entire building, especially given the original landlord's knowledge of basement subletting and the illogical outcome of decreased space with increased rent.

In a trial for conversion, the plaintiff claimed the landlord unlawfully disposed of its racking system after a lease disclaimer.

The landlord argued the racking was deemed abandoned under a court order from bankruptcy proceedings or, alternatively, that its disposal was justified due to the plaintiff's trespass.

The court found that the "deemed abandonment" provision in the liquidation order was a valid defense, and even if not, the landlord acted reasonably in disposing of the racking given the plaintiff's trespass and the high costs of preservation.

The plaintiff's claim for conversion was dismissed.

The landlord's counterclaim for lost rental revenue was also dismissed due to insufficient evidence on damages.

The appellant landlord appealed a motion judge's decision not to terminate a commercial tenancy and grant a writ of possession, despite the tenant's late payment of outstanding rent.

The Court of Appeal determined it lacked jurisdiction because the order appealed from was interlocutory, not final, as it did not dispose of the substantive rights in the ongoing action.

The appeal was transferred to the Divisional Court for the appellant to seek leave.

The solicitors brought a motion to transfer the assessment of their bills from Toronto to Ottawa, arguing that systemic delays in Toronto would prevent a hearing until 2024, whereas Ottawa could hear it within three months.

The clients did not appear or object.

The court dismissed the motion, finding that Toronto was the appropriate venue as the legal work, the lawyers' office, the clients, and the underlying litigation were all located in or connected to the Greater Toronto Area.

The court noted that while the assessment system in Toronto is plagued by delays, transferring cases to unrelated regions is not the appropriate solution.

Following a judgment granting the applicant tenant a declaration of unlawful lease termination and restoring possession, the tenant sought costs of up to $24,637.91 on a substantial indemnity basis.

The court considered the parties' conduct, the tenant's limited success on its arguments, and the reasonable settlement offers made by the landlord.

Finding that Rule 49 cost consequences were not appropriate, the court fixed costs payable to the tenant at $5,000 inclusive of disbursements and HST.

The applicant commercial tenant brought an urgent application to recover possession of leased premises after being locked out by the respondent landlord for non-payment of a security deposit.

The parties had orally agreed to an installment plan for the deposit, but the tenant missed the first payment.

The landlord issued a notice of default and terminated the lease shortly after.

The court found that while there was an oral agreement for installments, there was no agreement to waive the five-business-day notice period required by the lease for default of Additional Rent.

Therefore, the termination was premature and unlawful.

The court ordered the landlord to restore possession to the tenant, conditional on payment of the deposit and rent.

The plaintiffs, a group of affiliated wine manufacturers and retailers, brought an action against the LCBO, the AGCO, and the Crown challenging the 'Made Policy', which regulates where wineries can sell their products.

The parties brought six competing motions, including motions to strike pleadings, motions for summary judgment, and a motion regarding the late disclosure of a tolling agreement between the defendants.

The court dismissed the plaintiffs' motion to strike the defendants' pleadings over the tolling agreement, finding it did not alter the expected adversarial landscape.

The court struck significant portions of the plaintiffs' statement of claim against the LCBO and AGCO, particularly allegations relating to pre-2001 conduct that had been settled in prior litigation, and claims for intentional interference with economic relations.

The Crown's motion for summary judgment was granted, dismissing the action against it.

The AGCO's and the plaintiffs' respective motions for summary judgment were dismissed, as the complex factual matrix and allegations of bad faith required a trial.

Following a successful urgent motion by the tenant for relief from forfeiture and a declaration of unlawful lease termination during the COVID-19 pandemic, the court determined the costs of the motion.

The court awarded the tenant substantial indemnity costs fixed at $150,000, finding the landlord's conduct in terminating the lease and immediately re-leasing the premises to be reprehensible and high-handed.

The court declined to order costs against the landlord's principal personally but allowed the tenant to set off the costs award against future rent.

The plaintiff tenants brought a motion for an injunction after being locked out of their commercial premises by the landlord defendants for non-payment of rent during the COVID-19 pandemic.

The court found that the landlord had agreed to accept April rent in installments and subsequently demanded future rent, thereby waiving its right of forfeiture.

The court declared the termination of the lease unlawful, ordered the lease reinstated, and noted that even if the termination had been lawful, relief from forfeiture would have been granted given the unprecedented pandemic circumstances and the landlord's conduct.

The defendants brought a motion to discharge a certificate of pending litigation (CPL) obtained by the plaintiff against a property and for an order that the plaintiff post security for costs.

The plaintiff opposed, alleging fraud in the property's sale and seeking an injunction.

The court found that the plaintiff failed to make full disclosure of material facts when obtaining the CPL and did not have a reasonable claim to an interest in the land, leading to the discharge of the CPL.

The court also ordered the plaintiff to post security for costs, as the plaintiff corporation had insufficient assets and its principal failed to provide adequate financial disclosure to prove impecuniosity.