Gasper Galati

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.

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.

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 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 plaintiff landlord brought a motion for default judgment against the defendant tenant for breach of a lease agreement.

The defendant was noted in default for failing to defend the proceeding.

The court granted judgment to the plaintiff, finding liability based on the deemed admissions in the Statement of Claim and supporting evidence.

Damages were awarded for arrears of rent and loss of bargain for the unexpired term of the lease, totaling $450,528.14, plus interest and costs.

The court was satisfied that the landlord had made reasonable efforts to mitigate its damages.

The tenant unilaterally repudiated a commercial lease and vacated the premises.

The landlord refused to accept the repudiation, kept the lease alive, and sued for rent arrears without taking steps to mitigate by re-letting the premises.

The tenant argued that the Supreme Court of Canada's precedent in Highway Properties, which allows a landlord to insist on performance without mitigating, should be overturned in light of modern contract law principles.

The court held it was bound by vertical stare decisis to follow Highway Properties and the Ontario Court of Appeal's subsequent affirmations of the rule.

The court also rejected the tenant's argument that the lease capped damages at two years' rent, finding the cap only applied if the landlord terminated the lease.

Summary judgment was granted to the landlord for rent arrears.

This is a costs endorsement following an appeal.

The Court of Appeal had previously released its decision and invited written submissions on costs.

Considering the appellant's partial success on one issue and the dismissal of the balance of the appeal, the court fixed costs of the appeal at $20,000, inclusive of HST and disbursements, payable by the appellant to the respondent.

The Landlord appealed a trial judgment concerning a commercial lease, challenging conclusions regarding rent for a shed area and mezzanine, and the tenant's option to extend the lease, as well as the costs award.

The Court of Appeal allowed the appeal only to correct the limitation period for arrears of "non-lease-based rent" for the shed area from two to six years, finding it fell under the Real Property Limitations Act.

All other grounds of appeal, including the mezzanine rent, the validity of the lease extension, and the costs award, were dismissed.

The applicant tenant brought an application for declaratory relief to interpret the term 'Rentable Area of the Premises' in a commercial lease.

The tenant argued the area was 2,035 square feet, restricted to its specific unit, while the respondent landlord argued it was 2,314 square feet, which included the tenant's share of common areas.

Applying principles of contractual interpretation, the court read the lease as a whole and found that the landlord had the express right to measure the area and include the tenant's share of common areas.

The court determined the rentable area to be 2,314 square feet and dismissed the tenant's arguments regarding waiver and unconscionability.

The landlord applicant sought declaratory relief regarding its ability to lease former Sears space in an Ottawa shopping mall to a bank for a call centre.

The respondent, Hudson’s Bay Company (HBC), argued its consent was required under the lease due to a material change to the mall's merchandising plan.

The court found that the proposed lease constituted a "major change to the merchandising balance of the mall," would "materially change pedestrian flow," and would "detrimentally affect the Tenant’s merchandising environment," thereby triggering HBC's consent requirement.

The court further determined that HBC had not waived its rights, had not unreasonably withheld consent, and had not acted in bad faith.

The application was dismissed with costs awarded to the respondent.

The applicant landlord sought an urgent hearing prior to the expiry of a conditional period in a new lease to determine if the respondent tenant had a consent right over the proposed change of use to a call centre.

The respondent sought an adjournment because its lead counsel was unavailable on the scheduled date and opposed a weekend hearing due to the impact on junior staff and preparation time.

The court granted the adjournment, noting the lack of objective urgency, the landlord's voluntary assumption of the deadline, and the importance of health and wellness for legal practitioners during the pandemic.

The applicant pharmacy entered into an agreement to lease commercial space in the respondent's condominium building.

The agreement permitted the use of the premises as a pharmacy and family medical clinic.

Upon discovering the applicant intended to dispense methadone, the respondent attempted to impose a standard form lease containing onerous conditions not contemplated in the original agreement, and refused to grant possession unless signed.

The court held the agreement to lease was binding and enforceable, and the respondent breached the agreement by refusing possession.

A trial was directed to determine the applicant's damages.

The appellant appealed a motion judge's decision dismissing his claim for unconscionability and upholding the respondent's cross-motion for summary judgment.

The appeal concerned a forfeiture clause in an agreement between a purchaser and vendor.

The Court of Appeal deferred to the motion judge's finding that there was no unconscionability based on the circumstances and relationship between the parties.

The court also found that while the damages document may have overstated the vendor's losses, the damages were significant and the forfeited amount was not out of all proportion to those damages, failing to meet the criteria established in Redstone Enterprises Ltd. v. Simple Technology Inc.

The plaintiff sought equitable relief from forfeiture of a substantial deposit on a real estate purchase agreement after defaulting on a payment.

The defendant vendor sought full forfeiture, arguing the deposit was liquidated damages.

The court applied the two-part test for relief from forfeiture, assessing whether the deposit was disproportionate to the vendor's damages and if its retention would be unconscionable.

The court found no unconscionability, noting the purchaser was a foreign buyer who agreed to a larger deposit, had legal representation, and the vendor had granted multiple indulgences.

The deposit amount was deemed commercially reasonable given the circumstances.

Summary judgment was granted in favour of the vendor, allowing full forfeiture of the deposit.