Nicolas Canizares

The parties have been engaged in ongoing litigation regarding a commercial lease.

The tenant and its principal brought a motion under Rule 59.06 to introduce fresh evidence, alleging the landlord fraudulently omitted pre-lease emails that would have altered prior court decisions regarding rent arrears and construction allowances.

The landlord brought a motion to terminate the lease for non-payment of rent.

The court dismissed the tenant's motion, finding the proposed fresh evidence inadmissible as it constituted pre-contractual negotiations that did not clearly contradict the landlord's evidence or the final lease terms.

The court granted the landlord's motion to terminate the lease due to the tenant's ongoing default, but stayed the termination pending a companion oppression application, conditional on the payment of ongoing rent into trust.

Following a decision on commercial lease applications, two telecommunications companies (the Rooftop Tenants) sought their costs as deemed intervenors.

The Rooftop Tenants had successfully argued for continued access to their rooftop equipment through the tenant's premises.

The court found that the Rooftop Tenants were entitled to partial indemnity costs because their property interests were directly impacted and they were successful on the merits.

The court fixed costs at $20,000 for Rogers and $15,000 for Freedom Mobile, apportioning liability 75% to the tenant and 25% to the landlord.

On a commercial lease motion arising from a landlord’s purported termination for non-payment of rent, the court held that no rent was due on the termination date once rooftop lease credits required under the lease and prior judgment were properly applied.

The court found the landlord’s unilateral amortization of annual rooftop rent receipts was inconsistent with the prior lease decision and that the purported termination and lockout were invalid.

The tenant’s attempt to assert fresh rent-abatement claims for the pre-April 2022 period was barred by issue estoppel and abuse of process because those issues were bound up with the earlier adjudication of rent arrears.

The court reset the parties’ obligations by ordering payment of specified arrears, excusing rent during the period of wrongful lockout, directing immediate exclusive possession, lock replacement, and a reference on separate construction allowance disputes.

Competing commercial lease applications required interpretation of a negotiated lease governing redevelopment of a heritage property, allocation of a $4 million construction allowance, rooftop rental credits, rent arrears, and rooftop access for telecommunications tenants.

The court applied established contract interpretation principles to require the tenant to account fully for landlord-funded construction work and implied a term requiring repayment of overpaid construction allowance amounts not used for the landlord's work.

The court also held rooftop rent credits were payable from the commencement of the lease, found the landlord had not validly terminated the lease for alleged arrears, and granted relief from forfeiture if needed.

Pre-existing rooftop tenants were held entitled to continued access through the premises on the basis of their leases and easements of necessity, and the tenant was enjoined from interfering.

Success was divided overall, and no costs were ordered between landlord and tenant.

Competing commercial lease applications required interpretation of a negotiated lease governing redevelopment of a heritage property, allocation of a $4 million construction allowance, rooftop rental credits, rent arrears, and rooftop access for telecommunications tenants.

The court applied established contract interpretation principles to require the tenant to account fully for landlord-funded construction work and implied a term requiring repayment of overpaid construction allowance amounts not used for the landlord's work.

The court also held rooftop rent credits were payable from the commencement of the lease, found the landlord had not validly terminated the lease for alleged arrears, and granted relief from forfeiture if needed.

Pre-existing rooftop tenants were held entitled to continued access through the premises on the basis of their leases and easements of necessity, and the tenant was enjoined from interfering.

Success was divided overall, and no costs were ordered between landlord and tenant.

Following an endorsement determining the underlying application, the court considered written submissions on costs.

Both parties had served offers to settle, but neither offer produced a result more favourable than the court’s decision, so Rule 49 of the Rules of Civil Procedure did not affect the costs analysis.

The successful applicants sought costs on a partial indemnity basis totaling just over $31,500 inclusive of disbursements and tax.

The respondent requested an opportunity to have the applicants’ bill assessed but provided no substantive basis to challenge the hourly rates, hours worked, or disbursements.

Applying the factors in Rule 57.01 and the fairness considerations articulated in Boucher v Public Accountants Council (Ontario), the court found the claimed costs reasonable and awarded the requested amount.

The applicants and respondent are neighbours involved in a boundary dispute over a shared driveway and a triangular piece of land.

The respondent claimed possessory title to the triangle through adverse possession, while the applicants sought a declaration of ownership and the removal of fences and interlocking brick installed by the respondent on their property.

The court found that the respondent's adverse possession claim failed because the previous registered owner had interrupted the exclusive possession by entering the land to cut down trees before the 10-year statutory period expired and prior to the property's conversion to the Land Titles system.

The court granted the applicants' request for a declaration of ownership and ordered the respondent to remove the trespassing structures.