CITATION: Hakim Optical Laboratory Limited v. 1570710 Ontario Ltd., 2010 ONCA 627
DATE: 20100929
DOCKET: M39243 (C52673)
COURT OF APPEAL FOR ONTARIO
Laskin J.A. (In Chambers)
BETWEEN
Hakim Optical Laboratory Limited
Applicant (Appellant/Moving Party)
and
1570710 Ontario Ltd.
Respondent (Respondent/Responding Party)
Paul H. Starkman, for the moving party
Leonard Susman, for the responding party
Heard: September 28, 2010
On appeal from the order of Justice Andra M. Pollak of the Superior Court of Justice, dated September 1, 2010 and on a motion for stay pending appeal.
Laskin J.A. (In Chambers):
[1] The moving party, Hakim Optical, leases space from the responding party, 1570710 Ontario, under an offer to lease. The term of Hakim’s lease ends tomorrow, September 30, 2010. The offer to lease gives Hakim an option to extend the lease on written notice, which it has given. However, the option to extend is qualified. It provides: “This option to extend shall be granted provided the lessor has not given the lessee notice that the lesser plans to redevelop the site.” On April 20, 2010, the responding party, the landlord, gave Hakim notice that “we are terminating on the basis of the redevelopment clause … .”
[2] Hakim applied for relief from forfeiture under s. 20 of the Commercial Tenancies Act. It contended that the moving party’s notice was premature and defective. Pollak J. dismissed the application. Hakim has appealed her decision to this court. It now moves before me under r. 63.02(1)(b) of the Rules of Civil Procedure for a stay of Pollak J.’s decision pending the appeal.
[3] The landlord raised my jurisdiction to grant relief to Hakim. The landlord contends that Hakim does not seek a stay of the order under appeal because there is nothing to stay. Instead, the landlord contends, Hakim in substance seeks an injunction to prevent the landlord from taking possession of the leased premises pending the appeal. The landlord submits that I have no jurisdiction under r. 63 to grant injunctive relief.
[4] I agree with the landlord that a stay of the order dismissing its application for relief is of no benefit to Hakim. See Re Apotex Inc. and Attorney General for Ontario, 1986 CanLII 2481 (ON CA), [1986] O.J. No. 250. As the landlord points out, what Hakim really asks for is an interim injunction preventing the responding party from entering the leased premises pending appeal. I also agree with the landlord that r. 63 does not give me jurisdiction to grant an injunction pending appeal.
[5] However, I do have jurisdiction to grant an interim injunction under s. 134(2) of the Courts of Justice Act, which authorizes this court, on motion, to “make any interim order that is considered just to prevent prejudice to a party pending the appeal”. The jurisdiction conferred on the court under s. 134(2) may be exercised by a single judge. See s. 7(2) of the Courts of Justice Act.
[6] Although I have jurisdiction to grant Hakim’s relief, I decline to do so for two reasons. First, I see little merit in Hakim’s appeal. Hakim’s argument that the landlord’s notice is premature because it does not yet have permits for its redevelopment was thoroughly considered and rejected by the motion judge. I agree with her analysis. As she noted, the offer to lease does not condition the landlord’s notice on the existence of permits.
[7] Hakim’s argument that the landlord’s notice is defective is also weak. Hakim relies on the rider to the offer to lease, which states that “notice to demolish and redevelop the premises from the lessor can only be given to the lessee during the last six months of the first seven (7) year term.” Hakim argues that the court should not give effect to the landlord’s notice because that notice did not specify an intention to demolish. However, as the landlord’s counsel points out, the operative notice provision is in the option to extend clause. The landlord’s notice tracks the wording of that clause. Moreover, Hakim’s position, is at best, highly technical because it has known for five months that the landlord intends to redevelop the property and not extend the lease.
[8] Second, the balance of convenience favours the landlord. Although Hakim will no longer be able to stay in the premises, that is because of the contract it struck with the landlord. The landlord bargained for and obtained the right not to extend the lease if it planned, as it does now, to redevelop the property. The landlord is simply exercising its contractual right. Moreover, Hakim has known of the landlord’s intent for many months and thus has had ample time to find alternative premises.
[9] The landlord does not yet have its permits to proceed with the redevelopment but that does not negate its urgent need for the leased premises. The landlord proposes to build a 42 storey residential/commercial building. As detailed in the affidavit of its principal Claude Bitton, the landlord has already spent a great deal of time and money on the planning process, which appears to be well underway. It requires the leased premise as soon as possible to begin pre-sales of units in the building. Because of these considerations the balance of convenience favours the landlord.
[10] I could, of course, grant a brief stay and expedite the appeal, relief that motion judges in this court often grant on stay motions. However, I decline to do so in this case in view of the lack of any obvious merit in the appeal, and my assessment of the balance of convenience.
[11] The motion for a stay or other relief is dismissed with costs in the amount of $4,000, inclusive of disbursements and applicable taxes.
“John Laskin J.A.”