Mark Mikulasik

The Tenant (Bryfam Enterprises Inc.) brought an application seeking a declaration that its use of the premises was permitted under the lease.

The Landlord (Harbour Carrick Holdings Inc.) responded with a cross-application for a declaration that the Tenant was in breach of the permitted use clause and for an order terminating the lease.

The court found the Permitted Use Clause unambiguous and that the Tenant's expanded menu items (wraps, salads, soups) were not permitted or ancillary to the principal business of a quick service yogurt, smoothie, and waffle restaurant.

The Tenant's arguments of waiver and proprietary estoppel were rejected due to insufficient evidence of the Landlord's knowledge of the breach.

The lease was ordered terminated effective December 31, 2018.

The court addressed the issue of who should pay costs previously awarded after dismissing a motion brought by Bending Lake Iron Group Limited (BLIG).

The BLIG motion was deemed an abuse of process, a collateral attack on prior orders, and res judicata, with BLIG lacking standing due to its bankruptcy.

The court ordered that the costs be paid jointly and severally by BLIG's lawyer, Robert MacRae, and its directors and officers (Henry Grant Wetelainen, J. Chris Bailey, Dawn Elaine Mackay-Daynes, and Henry Clayton Wetelainen), citing the broad discretion under the Bankruptcy and Insolvency Act and Rule 57.07 of the Rules of Civil Procedure for personal costs against lawyers.