I.P. Katchin

Following an application by a landlord seeking a declaration that a tenant was in breach of a lease and that a renewal option was void for uncertainty, the court previously determined that the issues could not be resolved on affidavit evidence and required a trial.

The tenant sought costs of approximately $30,792.74 on a partial indemnity basis, while the landlord argued that costs should either be reserved to the trial judge or reduced due to unresolved arrears issues.

Applying the discretion under s. 131 of the Courts of Justice Act and the factors under Rule 57.01 of the Rules of Civil Procedure, the court held that the tenant achieved sufficient success to justify an immediate costs award.

However, the claimed costs were reduced to reflect issues yet to be adjudicated at trial.

The applicant landlord brought an application seeking a declaration that its tenant was in breach of a commercial lease and that the renewal option was void for uncertainty.

The court found that the renewal option, which provided for rent at 'current rates', was not void for uncertainty as it could be determined by the court or an arbiter.

On the issue of whether the tenant was in default of rent and common expenses, the court found there was a genuine issue regarding the proper calculation of arrears and directed a trial to determine the amounts owing.