Linda Galessiere

The appellant landlord appealed a trial judgment awarding the respondent tenant damages for overpayment of rent, common area maintenance (CAM) charges, and the cost of replacing a roof.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's interpretation of the commercial lease.

The court upheld the findings that the lease unambiguously required the landlord to replace the roof, that the tenant's calculation of additional rent during renewal periods was correct, and that the landlord's claim for historical CAM charges was statute-barred because a party cannot indefinitely toll a limitation period by delaying the issuance of invoices.

The Opposing Landlords sought costs after successfully opposing the debtor Applicants' motion to assign 25 commercial leases to a third party in a CCAA proceeding.

The court found that the dispute was a classic adversarial proceeding, entitling the successful landlords to costs.

The court awarded partial indemnity costs to the landlords, including additional costs to Ivanhoe Cambridge for opposing ipso facto relief.

However, the court deferred payment of the costs until the end of the CCAA proceeding to avoid unfairly prejudicing the secured creditors' collateral before priorities are finally determined.

In a landmark CCAA proceeding involving Hudson's Bay Company, the court declined to approve the assignment of 25 major retail department store leases across Canada to a new tenant, Ruby Liu Commercial Investment Corp., despite the transaction representing the highest bid and generating approximately $50 million in net proceeds for creditors.

The court found that the proposed assignee failed to meet the reasonableness standard under section 11.3(3) of the CCAA, particularly regarding its ability to perform the substantial and ongoing obligations under the leases.

The decision emphasizes that section 11.3 is an extraordinary power that must be exercised sparingly, and that the court must balance the interests of all stakeholders, including the contractual counterparties (landlords) who would be compelled into a long-term relationship with an untested and undercapitalized purchaser.

The court also rejected the applicants' arguments that certain lease provisions constituted ipso facto clauses violating the anti-deprivation rule and section 34 of the CCAA.

In a Companies' Creditors Arrangement Act proceeding, the applicant Hudson's Bay Company ULC and related entities sought approval of an Art Collection Auction Process Order to authorize the auction of artwork and artifacts held by the company.

The court approved the proposed auction procedures, which included both live and online auction components.

The court noted that certain items were excluded from the auction, including the Royal Charter, artifacts previously donated to the Manitoba Museum, the company's reference collection donated to the Archives of Manitoba, and war memorials.

Additionally, 24 artifacts believed to be of Indigenous origin or representative of Indigenous culture were excluded from the auction and would be donated to appropriate custodians in consultation with Indigenous communities.

The court found that the proposed procedures satisfied the applicable legal tests and represented the most appropriate process for disposing of the art collection while balancing the interests of creditors with cultural and historical considerations.

The defendant Rhonda Niles brought a motion under Rule 42.02 to discharge a certificate of pending litigation (CPL) registered against her property at 55 Avenue Road, Toronto.

The CPL was obtained ex parte by the plaintiff in December 2017.

Ms. Niles argued that the plaintiff failed to provide full and frank disclosure of material facts when obtaining the CPL.

The court found three instances of material non-disclosure: (1) the affiant asserted personal knowledge when the evidence was based on information and belief; (2) the affiant mischaracterized the defendant's financial independence and income sources; and (3) the affiant failed to disclose material facts regarding the property's acquisition and financing.

Although Ms. Niles delayed seven years before bringing the motion, the court exercised its equitable discretion to grant relief, considering the plaintiff's failure to make full and frank disclosure, the plaintiff's lack of diligence in prosecuting the action, and the tenuous connection between the defendant's property and the alleged misappropriated funds.

The CPL was discharged and costs awarded to the defendant.

In this CCAA proceeding, the court granted multiple orders sought by Hudson's Bay Company and related entities, including approval of lease assignment agreements with YM Inc. and Ivanhoe Cambridge, sealing of confidential bid information, extension of the stay of proceedings to October 31, 2025, and approval of the Monitor's reports and activities.

The court rejected requests for adjournment and conditional distributions, finding the lease monetization process was fair and transparent, and that the proposed transactions represent a positive development for stakeholders.

The decision addresses motions regarding the appointment of representative counsel for current and former employees and retirees of Hudson’s Bay Company ULC and related entities in ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings.

The Court declined to appoint any of the nominated law firms as representative counsel at this stage, instead appointing the Honourable Herman Wilton-Siegel as an independent third party to evaluate proposals and make a recommendation.

The Court also approved amendments to the Sale and Investment Solicitation Process (SISP) to remove the company’s art and artifact collection from the SISP and to appoint Heffel Gallery Limited to conduct a separate auction for the collection, subject to further court approval of procedures.

The reasons review the legal framework for appointing representative counsel and the importance of balancing stakeholder interests in complex insolvency proceedings.

This endorsement grants a brief adjournment in the Companies’ Creditors Arrangement Act (CCAA) proceedings involving Hudson’s Bay Company ULC and related entities, following ongoing discussions between the applicants and stakeholders.

The court extends the stay of proceedings, increases the Directors’ Charge, amends the relative priorities of charges, and approves the engagement of Reflect Advisors, LLC as financial advisor.

The court finds the requested relief appropriate, unopposed, and supported by the Monitor, and orders the requested amendments to the Initial Order.

Following a ten-day trial regarding a commercial lease dispute, the court issued an endorsement to finalize the calculation of damages.

The court held that the landlord's claims for unpaid common area maintenance (CAM) charges from 2009 to 2011 were statute-barred under the Real Property Limitations Act.

The court declined to order equitable set-off for either party, finding the tenant solely responsible for its rent overpayments and the landlord guilty of misfeasance regarding CAM charges.

The court also rejected the landlord's 'Rent Paid Theory' for recalculating rent, awarding the tenant a total of $1,359,799.88 in damages.

The plaintiff, 1080977 Ontario Inc. operating as Stevans Sales and Marketing, sought leave to continue its action for breach of contract and unjust enrichment, despite having operated for 30 years without registering its business name under the Business Names Act.

The defendants opposed, arguing the failure to register was not inadvertent and that they were misled.

The court granted leave, finding the failure to register was inadvertent, there was no evidence the public was deceived, and the plaintiff had since registered the name.

The court also noted a residual discretion to grant leave to prevent an unfair outcome, emphasizing that denying leave would be a disproportionate punishment for a technical breach, especially given the underlying dispute was about unpaid invoices for goods and services received.

The Body Shop Canada Limited (TBS Canada) brought a motion seeking three orders: authorization to continue its Bankruptcy and Insolvency Act (BIA) proposal proceeding under the Companies' Creditors Arrangement Act (CCAA), approval of a Sale and Investor Solicitation Process (SISP), and a Discharge and Termination Order for the Proposal Trustee.

The court granted all requested relief, finding that the conversion to CCAA was appropriate given the company's insolvency, the ongoing UK sale process for its parent company, and the CCAA's flexibility to maximize stakeholder value and preserve the going concern.

The court also approved the SISP, the continuation of existing charges (administration, D&O, KERP), and the fees and releases for the Proposal Trustee and counsel.

The plaintiff tenant brought an action against the defendant landlord regarding a commercial lease for a grocery store.

The parties disputed the calculation of rent, responsibility for a roof replacement, and the calculation of Common Area Maintenance (CAM) charges.

The court found that the landlord knowingly inflated CAM invoices by charging for non-common areas, manipulating the gross leasable area, and charging unrecoverable management fees.

The court also held that the lease allocated the cost of replacing the roof to the landlord, awarding the tenant $331,746.03.

Furthermore, the court agreed with the tenant's interpretation of the rent calculation provisions and found that the tenant had overpaid rent.

The tenant was awarded $493,269.66 in restitution for unjust enrichment.

The landlord's counterclaim for unpaid rent and CAM charges was dismissed.

This decision concerns a motion for costs brought by the defendants, Alexander Gerstein and Ethan Gerstein (the "Moving Defendants"), after the plaintiffs discontinued their action and agreed to vacate a certificate of pending litigation (CPL) on the Moving Defendants' property.

The Moving Defendants sought full indemnity costs, alleging egregious conduct by the plaintiffs, including material misrepresentations and omissions when obtaining the ex parte CPL, unfounded fraud allegations, and uncooperative conduct during the motion.

The court found that the plaintiffs' numerous and significant failures to make full and fair disclosure, coupled with their belated and uncooperative conduct, amounted to a material misrepresentation.

The court awarded full indemnity costs of $115,000 to the Moving Defendants, finding the plaintiffs' conduct sufficiently egregious and reprehensible.

The applicant, BBB Canada Ltd., sought court approval under the Companies' Creditors Arrangement Act (CCAA) for an Omnibus Assignment and Assumption of Leases, FF&E and Trade Fixtures Agreement with DKB Capital.

The motion also requested orders for the assignment of certain leases under section 11.3 of the CCAA and a temporary sealing order for the unredacted agreement.

The court found the marketing process comprehensive, the consideration fair and reasonable, and the agreement beneficial to stakeholders.

The assignments were unopposed.

The court applied the Sherman Estate test for the sealing order and found it appropriate given its limited scope and time.

The motion was granted in its entirety.

In a commercial lease dispute involving allegations of rent overpayment and underpayment, both the plaintiff tenant and defendant landlord brought motions to compel answers to undertakings and refusals from examinations for discovery.

The court applied the principles of relevance and proportionality under the Rules of Civil Procedure, ordering both parties to answer certain questions and produce specific financial and lease-related documents, while dismissing requests that were overbroad or disproportionate.