Brendan Jones

The appellant tenant operated a duty-free store that suffered a material adverse effect due to COVID-19 border closures.

The tenant invoked a lease provision requiring the landlord to consult and discuss the impact of regulatory changes.

After negotiations failed, the tenant sought a judicially imposed rent abatement.

The motion judge dismissed the request, finding the provision was an agreement to agree, and the landlord had negotiated in good faith.

The Court of Appeal dismissed the appeal, affirming that pre-contractual subjective intentions were inadmissible, the court could not impose a rent adjustment without a contractual mechanism, and the landlord was entitled to pursue its economic self-interest during negotiations.

The tenant, a duty-free store operator at the Peace Bridge, brought a cross-motion seeking a declaration that it was not required to pay base rent during the 18-month period its store was closed due to COVID-19 border restrictions.

The tenant argued the landlord breached a lease provision requiring consultation on regulatory changes and breached its duty of good faith by making unreasonable demands.

The court dismissed the motion, finding the landlord engaged in good faith negotiations and offered reasonable accommodations.

The court held it cannot rewrite the lease or impose a new rent structure where the parties failed to reach an agreement, as the lease lacked objective benchmarks for such an adjustment.

Following a successful motion by the landlord to terminate a commercial lease and obtain immediate possession due to over $1 million in rent arrears, the court determined costs.

The landlord sought costs on a substantial indemnity basis pursuant to the lease terms and due to the tenant's unreasonable conduct, including advancing meritless arguments and refusing to approve the draft order.

The court awarded the landlord $45,000 in costs on a substantial indemnity basis, payable forthwith.

The landlord brought a motion for an order declaring a commercial lease terminated and for a writ of possession due to the tenant's failure to pay rent for 29 months.

The tenant argued it was entitled to withhold rent and sought an abatement, alleging the landlord breached the lease and its duty of good faith by failing to disclose redevelopment plans and failing to maintain the shopping centre.

The court found no breach by the landlord, noting the tenant had contracted out of any right to abatement.

The court denied the tenant's request for relief from forfeiture due to its unreasonable conduct and the significant rent arrears of over $1 million.

The landlord's motion was granted.

The applicant landlords sought to enforce a Relief From Forfeiture Agreement and terminate a commercial lease due to the tenant's failure to pay rent.

The tenant argued it was protected from eviction based on its application for the Canada Emergency Rent Subsidy (CERS).

The court found that the tenant had breached the conditional agreement, which explicitly stated the landlord would not be prejudiced by a stay of eviction based on CERS.

The court granted the application, terminating the lease and awarding judgment for rent arrears and costs against the tenant and its indemnifiers.

At a case conference, the applicant landlord requested an interim order requiring the respondent commercial tenant and its indemnifiers to pay outstanding rental arrears and ongoing rent until the application hearing.

The court ordered the respondents to pay full monthly rent going forward, but declined to make an order regarding accumulated arrears as the respondents' counsel had just been retained and needed time to respond.

In a supplementary costs endorsement, the court reviewed the respondents' late-filed Costs Outlines.

The respondents argued that their costs were substantially lower than the applicant's, pointing to differences in the number of counsel billing and hourly rates.

The court found the applicant's counsel's higher hourly rate to be within the reasonable market range and noted that the respondents' outline omitted time spent by another lawyer on the file.

The court concluded that the new information did not alter its prior finding that the applicant's costs were reasonable.

Following the granting of interlocutory injunctions against the respondents, the applicant sought costs on a substantial indemnity basis.

The court found that the respondents engaged in deliberate and high-handed conduct by attempting to unilaterally terminate commercial leases and evict the applicant without legal basis, aiming to frustrate the court proceedings.

The court exercised its discretion to award costs immediately rather than reserving them to the trial judge, fixing costs at $58,000 and $45,000 payable forthwith on a substantial indemnity scale.

Parkland Corporation sought an interlocutory injunction to prevent SRAA Inc. and 1064110 Ontario Ltd. from unilaterally terminating their gas station leases and subleases to re-lease the properties to a competitor selling Esso brand fuel.

The respondents argued the agreements were essentially fuel supply contracts and that they were operating at a loss.

The court found that the respondents deliberately breached their contracts and that Parkland would suffer irreparable harm from the loss of control over the sites.

The court granted the interlocutory injunctions, enforcing the leases and the negative covenants in the subleases pending a final determination.

The plaintiffs alleged that the defendant, an officer of their corporation, fraudulently and without authorization registered two mortgages against their properties.

They also sued the lawyer who registered the mortgages for negligence and the mortgagees for relying on the mortgages despite alleged red flags.

The court dismissed the action, finding that the officer had actual authority to bind the corporation under its by-laws, the plaintiff was aware of and benefited from the mortgages as part of a scheme to avoid foreign creditors, the lawyer met the standard of care, and the mortgagees were protected by the indoor management rule and the Land Titles Act.

The receiver brought a motion for directions to determine whether an appeal from a priority dispute order in a receivership lies to the Court of Appeal under the Bankruptcy and Insolvency Act or to the Divisional Court under the Construction Act.

The Court of Appeal held that because the motion judge's order was granted in reliance on jurisdiction under the Bankruptcy and Insolvency Act, specifically a receiver's application for directions under s. 249, the appeal route is to the Court of Appeal.

The self-represented plaintiff abandoned her motion for documentary production shortly before it was scheduled to be heard.

The defendants sought costs of the abandoned motion on a full indemnity basis, citing the plaintiff's conduct and previous abandoned motions.

The court awarded costs to the defendants on a partial indemnity basis, noting that while costs were justified under Rule 37.09(3), the plaintiff's self-represented status and health issues mitigated against an extraordinary costs sanction.

Costs were fixed at $3,500 for one defendant and $2,500 for the other.

The defendant Crown brought a motion for summary judgment to dismiss the plaintiff's action for failing to comply with the 60-day notice requirement under the Proceedings Against the Crown Act.

The plaintiff, an inmate who was assaulted by another inmate, argued that incident reports and statements given at the time of the assault constituted sufficient notice.

The court rejected this argument, finding that the initial reports contained no element of complaint against the Crown.

The action was commenced less than 60 days after formal written notice was provided by the plaintiff's counsel, rendering the action a nullity.

The motion for summary judgment was granted and the action was dismissed.

The plaintiff moved to set aside the registrar’s automatic dismissal of an action alleging misappropriation of investment funds and to transfer the place of trial from Toronto to St. Catharines.

The dismissal was set aside on consent, as the motion had been brought before the dismissal order was issued and procedural steps had continued.

Applying Rule 13.1.02(2)(b) of the Rules of Civil Procedure, the court weighed convenience, trial scheduling, and access to justice considerations.

Despite several defendants and counsel being located in Toronto, the court found the plaintiff’s health issues and limited financial means were significant factors favouring transfer.

The action was therefore ordered transferred to St. Catharines in the Central South judicial district.