Kenneth Pimentel

The tenants brought a motion to stay an eviction order after a single judge of the Divisional Court quashed their appeal from the Landlord and Tenant Board.

The tenants argued that the Board lacked jurisdiction to order eviction while their Superior Court action for damages, which they claimed as an equitable set-off, was pending.

The court dismissed the motion, finding that the tenants failed to establish a serious issue to be tried under the RJR-MacDonald test, as the Board is a statutory tribunal without equitable jurisdiction to stay its own proceedings pending a Superior Court action.

The plaintiffs sought default judgment for damages arising from the termination of a commercial lease after the defendant tenant failed to pay rent.

The court considered the proper method for calculating damages for lost future rent following termination of a lease and emphasized that, even on a default judgment motion, damages must be proven with evidence.

Applying the principles from Highway Properties Ltd. v. Kelly, Douglas & Co., the court held that damages must reflect the present value of future rent for the unexpired term minus the actual rental value of the premises, taking mitigation into account.

The landlord’s original claim exceeded $450,000 but lacked a proper present value calculation and sufficient evidence.

The court therefore reduced the claim and awarded $250,000 all-inclusive damages.