Mitchell Sean Koczerginski

The court determined that the applicants were not entitled to extend their subleasehold interest in commercial premises for a further five years because they had committed at least three defaults, constituting "habitual default" under the sublease.

The court found that the applicants failed to meet the conditions for extension, including defaults related to unauthorized physiotherapy services, late rent payments, fire code deficiencies, and nonpayment of rent during COVID-19 closures.

The court also held that the equitable remedy of relief from forfeiture did not apply, as the applicants' defaults were not due to circumstances beyond their control.

The application was dismissed, and costs were awarded to the respondents.

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.

The Moen defendants brought a motion seeking a confidentiality order to protect proprietary product design and manufacturing information, arguing it was highly sensitive and at commercial risk.

The plaintiffs and co-defendant Motion Specialties opposed, asserting the motion was premature, unnecessary, and lacked sufficient evidentiary basis to meet the high onus for such orders.

The court dismissed the Moen defendants' motion, finding they failed to demonstrate an important commercial interest or the absence of reasonable alternative protective measures.

The court concluded that the information's level of secrecy did not warrant confidentiality beyond the implied undertaking rule and criticized the Moen defendants for causing unnecessary delay in the litigation.

Subway Franchise Restaurants of Canada Ltd. appealed the dismissal of its application for relief from forfeiture after failing to exercise a lease renewal option within the specified timeframe.

Subway argued that BMO Life Assurance Company, the landlord, breached its duty of good faith by remaining silent when Subway inquired about the lease termination date, which Subway had incorrectly diarized.

The Court of Appeal upheld the application judge's decision, finding that BMO did not lie, mislead, or actively contribute to Subway's misapprehension.

The court distinguished the facts from the Supreme Court's decision in *C.M. Callow Inc. v. Zollinger*, emphasizing that a duty to correct a misapprehension only arises if the party contributed to it.

Subway had access to the correct termination date via an estoppel certificate and failed to make diligent efforts to comply with the lease terms.

The Applicant, a commercial tenant, sought relief from forfeiture after failing to exercise its lease renewal option within the stipulated timeframe.

The tenant had mis-diarized the lease expiry date despite having signed an Estoppel Certificate with the correct date.

The court dismissed the application, finding that the onus was on the tenant to comply with the lease terms and that the landlord had no duty to correct the tenant's errors or disclose information beyond the contractual obligations.