Joe Latham

This motion arose from a contentious landlord-tenant relationship, addressing the proper calculation of realty taxes and occupancy expenses, and costs, following a prior application.

The court found the Landlord improperly used inconsistent methods to calculate the Tenant's realty tax allocation.

While declining to rule on occupancy expenses in this motion, the court remained seized of the issue.

Critically, the Landlord was ordered to pay the Tenant substantial indemnity costs for both the original application and this motion, totaling $709,017.39, due to the Landlord's "reprehensible" conduct, including attempting to evict the tenant for an ulterior motive (a better offer from another party) and engaging in vexatious litigation tactics.

The landlord applied for a writ of possession and to terminate a commercial lease, while the tenant applied for a declaration that the termination was invalid.

The dispute centered on the allocation of realty taxes and occupancy costs.

The court found that while the landlord's method of allocating taxes by square footage was a reasonable exercise of its contractual discretion, it could not charge the tenant for taxes related to the parking garage.

Furthermore, the landlord was not entitled to terminate the lease because it had previously agreed to defer tax discussions and had failed to provide the required annual estimates and reconciliations for occupancy costs.

The court also held that, in the alternative, the tenant would be entitled to relief from forfeiture.

The plaintiff successfully moved for an interlocutory injunction to prevent the defendant landlord from re-entering the leased premises.

The parties could not agree on costs.

The plaintiff sought costs payable immediately, arguing the defendant's conduct forced the urgent motion.

The defendant argued costs should be in the cause.

The court held that because the merits of the case would be decided shortly at an upcoming application, and most of the evidence on the motion related to the merits, the costs of the motion should be reserved to the judge hearing the application.

The plaintiff tenant sought an interlocutory injunction to restrain the defendant landlord from exercising a right of re-entry over leased commercial premises.

A dispute had arisen regarding the share of realty taxes payable by the plaintiff, and the defendant had issued a notice of default and attempted to re-enter the premises.

Applying the RJR-MacDonald test, the court found a serious issue to be tried regarding contractual interpretation, irreparable harm to the plaintiff's business and reputation if locked out, and a balance of convenience favouring the plaintiff.

The motion for an interlocutory injunction was granted.