Martin P. Zarnett

A landlord sought leave to bring an urgent motion for directions to enforce an eviction order against tenants, despite a province-wide moratorium on evictions due to a public health emergency.

The Landlord and Tenant Board had previously ordered eviction based on a finding that a tenant committed a serious illegal act within the residential complex.

The court, acting as delegate of the Regional Senior Justice, found the matter urgent and granted leave for the landlord to bring the motion for directions, emphasizing the time-sensitive nature and potential interests of vulnerable third parties.

The landlord moved to quash the tenant's appeal from a Landlord and Tenant Board decision for lack of jurisdiction.

The appeal, concerning rent arrears and eviction, raised only factual matters, not questions of law as required by the Residential Tenancies Act.

The court found the appeal devoid of merit, frivolous, vexatious, and an an abuse of process, granting the motion, dismissing the appeal, and lifting the automatic stay of the eviction order.

McDonald's appealed a Superior Court decision that terminated a commercial ground lease due to McDonald's failure to comply with the renewal provision.

The application judge found that because the parties had not agreed on a rental rate at least nine months before the lease expiry, McDonald's was obliged to either refer the matter to arbitration or revoke its renewal notice.

The Court of Appeal allowed the appeal, finding that the application judge erred in concluding that North Elgin had properly revoked its waiver of strict compliance with the renewal provision.

The court held that the revocation lacked sufficient clarity and did not provide McDonald's with reasonable notice or an opportunity to cure the defect.

This case involved two applications concerning the renewal of a twenty-year ground lease between a landlord, North Elgin Centre Inc., and its tenant, McDonald’s Restaurants of Canada Limited.

McDonald's had given notice to renew but failed to either revoke its intention or elect arbitration within the stipulated nine-month period when rent negotiations stalled.

The landlord sought a declaration that the lease was terminated due to McDonald's non-compliance with the renewal provision.

McDonald's sought a declaration that the lease was renewed and an order for arbitration.

The court found that McDonald's did not strictly comply with the renewal provision.

While the landlord's conduct initially constituted a waiver of strict compliance, this waiver was effectively revoked by clear communication.

McDonald's subsequently failed to elect arbitration within a reasonable time and was not entitled to relief from forfeiture.

The court granted the landlord's application, declaring the lease terminated, and dismissed McDonald's application.

A 90-day stay of judgment was granted.

Following dismissal of a motion for summary judgment, the defendant sought costs of approximately $18,500 and argued the plaintiff acted unreasonably in bringing the motion.

The court considered Rules 20.06 and 57.01 of the Rules of Civil Procedure and the conduct of the parties regarding whether examinations for discovery should occur before the motion.

The plaintiff had proposed delaying the motion to conduct discoveries, consistent with guidance from appellate authority on summary judgment procedure, but the defendant opposed that approach.

The court held it was unreasonable for the defendant to resist discovery and then seek costs on the basis that the motion was improperly pursued.

Costs of the motion were therefore reserved to the trial judge.

The plaintiff bank brought a motion for summary judgment seeking recovery of a mortgage deficiency following a power of sale and dismissal of the defendant’s counterclaim.

The defendant alleged she had been subjected to undue influence by a third party and that both the bank’s representative and the lawyer acting jointly for the lender and borrower knew of the arrangement and of a prior impersonation fraud involving her identity.

The court found that the record raised serious credibility issues and factual disputes regarding undue influence, potential misrepresentation, and the conduct of the joint solicitor.

Applying the summary judgment principles from Combined Air Mechanical Services Inc. v. Flesch, the court held that a full appreciation of the evidence required a trial.

The motion for summary judgment was therefore dismissed.