Eldar Babayev

The tenant of a commercial restaurant space and the landlord brought cross-applications against each other alleging fundamental breaches of the lease.

The tenant claimed constructive eviction, breach of quiet enjoyment, and bad faith due to the landlord's demands regarding noise, garbage, HVAC installation, and failure to apply for the CECRA rent subsidy.

The landlord sought forfeiture of the lease and damages, alleging the tenant breached the lease regarding noise, parking, garbage, and unauthorized patio use.

The court dismissed both applications, finding that neither party's conduct amounted to a fundamental or material breach of the lease.

The court directed the parties to negotiate or seek a further hearing to determine a fair rental rate for the tenant's use of the exterior patio space.

The applicants and respondent disputed the termination point of the lot line between their adjacent waterfront properties on Jack Lake, a controlled body of water.

The applicants argued the line ended at the normal controlled high water level, while the respondent argued it ended at the original natural water level prior to damming.

The court found that on a controlled body of water, the 'High Water Mark' shown on the subdivision plan presumptively refers to the normal controlled high water level.

The court granted a declaration in favour of the applicants, establishing the boundary at the contour elevation of 106.33 feet.

The appellant appealed from an order dismissing his motion to set aside a default judgment in a land banking fraud scheme.

The appellant was served with the Statement of Claim on March 5, 2014, but took no steps to defend and was noted in default on August 1, 2014.

After an undefended trial, judgment was rendered against him for fraudulent misrepresentation in the amount of $276,031.06 plus pre-judgment interest, punitive damages of $25,000, and costs of $25,000.

The appellant did not learn of the judgment until September 15, 2016.

The motion judge refused to set aside the default judgment, finding that the appellant provided an inadequate explanation for his default, consciously decided not to participate, had no arguable defence on the merits, and that setting aside the judgment would undermine the integrity of the justice system.

The Court of Appeal upheld this decision.

The respondents, GMD Canavas Holdings Inc. and Decora Building Restoration Limited, moved to enforce an Offer to Settle dated May 3, 2016, which the applicant, 1435970 Ontario Inc., had accepted.

The applicant contended its acceptance was void due to a misunderstanding regarding RDI Construction Company Ltd. vacating its premises.

The court found that a miscommunication between the applicant and its counsel did not invalidate the acceptance, especially since the applicant itself was aware RDI had not vacated.

Furthermore, the Offer's terms did not premise on RDI vacating.

The motion to enforce the Offer to Settle was granted, and the applicant was ordered to pay costs to the respondents.