Rinaldo Hair Stylist Limited v. bcIMC Realty Corporation, 2013 ONCA 38

ENDORSEMENT

1This was an appropriate case for summary judgment, in our view. Given the record, the motion judge was in a position to have a "full appreciation of the evidence", and we do not see that the trial judge would have a record that would be in any way substantially different.

2We do not agree that the motion judge purported to apply a principle that as a matter of law there were two periods of negotiation (one before the time for renewing the option and a "new ball game" thereafter). Rather, he reviewed the conduct of the parties as a whole and concluded that that conduct did not amount to waiver of the notice requirement in the circumstances. His findings at para. 24 of his reasons are well supported on the record.

3With respect to the post-deadline negotiations, the motion judge simply concluded that they were not negotiations about the tenant's renewal option, but were instead negotiations regarding a potential new and different lease. This conclusion was also supported by the record.

4In these circumstances, we also disagree that it was bad faith on the part of the landlord to consider other tenant options either before or after the renewal period or that its conduct somehow impeded or "eviscerated" the renewal option right.

5The appeal is therefore dismissed with costs to each respondent fixed in the amount of $10,000 inclusive of disbursements and applicable taxes.