Mel Solmon

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 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.

The applicant Fund sought the return of $1,461,220 that its Former Manager unilaterally paid itself upon resigning.

The Former Manager claimed the funds were owed as Incentive Participation Amounts (IPA) compensation under the Management Agreement.

The court found that the IPA compensation was contractually required to be paid as dividends.

Because the Fund no longer qualified as an open-end mutual fund, it was subject to the solvency test under s. 42 of the Canada Business Corporations Act, which it could not meet.

Therefore, the Fund was prohibited from declaring dividends, making the Former Manager's self-payment unauthorized.

The court ordered the Former Manager to repay the funds but declined to award punitive damages, noting the Former Manager did not conceal its actions.