Kirby Cohen

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.

The defendants sought their costs of the action, including a summary judgment motion brought by the plaintiff which resulted in the dismissal of the plaintiff's claim.

The defendants sought substantial indemnity costs, arguing the plaintiff acted unreasonably in bringing the motion.

The court found the plaintiff's motion was reasonable, as instances of undue influence being successfully established are rare.

The court awarded partial indemnity costs of $49,000 to the first defendant and $1,000 to the second defendant.