In the Matter of the Receivership of Crate Marine Sales Limited et al.

Ontario Reports

Court of Appeal for Ontario,

Hoy A.C.J.O., Blair and L.B. Roberts JJ.A.

June 3, 2016

132 O.R. (3d) 104 | 2016 ONCA 433

[Indexed as: Crate Marine Sales Ltd. (Re)]

Case Summary

Bankruptcy and insolvency — Receivers — Occupation rent — Receiver continuing to operate debtor's business at leased premises until lease expired — Receiver taking control of premises to exclusion of others (including landlord) and paying insurance, electricity and heating costs — Receiver "occupying" premises and obligated to pay occupation rent.

The debtor operated a marina on premises owned by 212. After a receivership order was made, the receiver continued to operate the debtor's business at that location until the lease expired. The receiver changed the locks on the premises and subsequently entered into an agreement with 212 whereby 212 was provided with a key to the premises, but only subject to a number of stringent restrictions. 212 took the position that the receiver owed it occupation rent for the period from the making of the receivership order to the expiry of the lease. It brought a motion to establish its entitlement to occupation rent. The motion judge determined that the receiver was not obligated to pay occupation rent. He recognized that court-appointed receivers are bound by the same general principle that applies to anyone occupying another's property -- there is an implied agreement by the occupier, subject to rebuttable presumption, to pay rent for the use of the occupied property. He concluded, however, that the act of occupation required some form of deprivation of use, and the receiver's conduct did not cross that threshold. 212 appealed.

Held, the appeal should be allowed.

The motion judge misapprehended the nature of the test for determining whether the receiver was liable to pay occupation rent. He erred by focusing primarily on "deprivation of use" when there was admitted possession and evidence of actual occupation, and by conflating "deprivation of use" in the real property sense with "deprivation of use" in a more general strategic or economic benefit/detriment sense. The obligation to pay occupation rent does not require some form of deprivation of use in addition to occupation of the premises. The receiver took control of the premises to the exclusion of others, including 212. In all of the circumstances, the receiver "occupied" the premises, giving rise to the obligation to pay occupation rent. [page105]

Beatty Limited Partnership (Re) (1991), 1991 CanLII 7260 (ON SC), 1 O.R. (3d) 636, [1991] O.J. No. 6, 1 C.B.R. (3d) 225, 24 A.C.W.S. (3d) 744 (Gen. Div.), consd

Other cases referred to

Bank of Montreal v. Steel City Sales Ltd., 1983 CanLII 3010 (NS SC), [1983] N.S.J. No. 407, 148 D.L.R. (3d) 585, 57 N.S.R. (2d) 396, 47 C.B.R. (N.S.) 15, 28 R.P.R. 225, 120 A.P.R. 396, 21 A.C.W.S. (2d) 61 (S.C. (T.D.)); B.L. Armstrong Co. v. Kisluk, [1981] O.J. No. 939, 39 C.B.R. (N.S.) 230, 11 A.C.W.S. (2d) 283 (H.C.J.); Checkout Foodmarts Ltd. (Re), [1975] O.J. No. 1643, 21 C.B.R. (N.S.) 151 (H.C.J.); Rossiter v. Swartz, [2013] O.J. No. 162, 2013 ONSC 159 (S.C.J.); Sasso v. D. & A. MacLeod Co. (1991), 1991 CanLII 7170 (ON SC), 3 O.R. (3d) 472, [1991] O.J. No. 676, 5 C.B.R. (3d) 239, 26 A.C.W.S. (3d) 780 (Gen. Div.); Sawridge Manor Ltd. v. Western Canada Beverage Corp., 1995 CanLII 641 (BC CA), [1995] B.C.J. No. 1371, 61 B.C.A.C. 32, 33 C.B.R. (3d) 249, 1995 CarswellBC 169, 56 A.C.W.S. (3d) 171 (C.A.); Young v. Bank of Nova Scotia (1915), 1915 CanLII 531 (ON CA), 34 O.L.R. 176, [1915] O.J. No. 59, 23 D.L.R. 854 (C.A.); Zalev v. Harris, [1924] O.J. No. 341, 27 O.W.N. 197 (C.A.)

Authorities referred to

Bentley, Christopher A.W., John McNair and Mavis Butkus, Williams and Rhodes' Canadian Law of Landlord and Tenant, loose-leaf (2015--Rel. 9), 6th ed. (Toronto: Carswell, 2013)

APPEAL from the order Penny J., [2015] O.J. No. 5465, 2015 ONSC 6295 (S.C.J.).

James P. McReynolds, for appellant 2124915 Ontario Inc.

R. Brendan Bissell, for respondent A. Farber & Partners Inc. as receiver.

Harvey Chaiton, for respondent Crawmet Corp.

The judgment of the court was delivered by

BLAIR J.A.: —

Overview

[1] The Crate Marine group of companies operated a number of marinas in Southern Ontario, including the Lagoon City Marina on Lake Simcoe (the "marina"). The appellant, 2124915 Ontario Inc. ("212 Ontario"), is the owner and landlord of the premises on which the marina is located.

[2] In the fall of 2014, the Crate Marine companies ("Crate Marine") became insolvent. At the instance of one of their creditors, Crawmet Corp., A. Farber & Partners was appointed first as interim receiver and then, by order dated December 8, 2014, as receiver over the Crate Marine assets, undertakings and properties. As Farber's third report states, it immediately "took possession of" the debtor companies properties and "secured ongoing utility, insurance and other services in the Receiver's name". The Lagoon City Marina was one of those properties. [page106] The receiver continued Crate Marine's boat storage operations at that site and collected accounts receivable from customers.

[3] At issue on this appeal is whether the motion judge erred in determining that the receiver is not obligated to pay occupation rent for the period from December 8, 2014 to April 30, 2015, when the Lagoon City Marina lease expired and 212 Ontario began leasing the marina to another tenant, Pride Marine Group.

[4] Respectfully, he did, in my view.

Factual Background

[5] 212 Ontario acquired the marina property in 2007, subject to a lease in favour of Steven and Greg Crate as trustees "for a company to be incorporated". The Crate brothers are the principals of Crate Marine. Crate Marine's sole operating entity was Crate Marine Sales Limited ("CMSL"). It is common ground that the lease was never assigned to any corporate entity. However, CMSL operated the marina. It booked all costs and revenues associated with the operations at the marina, and paid rent under the lease directly to 212 Ontario.

[6] By December 2014, CMSL owed the appellant $501,950.65 in arrears of rent.

[7] As part of the exercise of taking possession, the receiver changed the locks on the marina. Subsequently, it entered into an agreement with 212 Ontario whereby 212 Ontario was provided with a key to the premises, but only subject to a number of stringent restrictions (the "key agreement"):

(i) subject to the permission of the receiver on prior notice, access was limited to dealing with actual or potential emergencies or damages to the marina;

(ii) the receiver could cancel the right to access at any time by requesting the return of the key;

(iii) 212 Ontario would not use the access to assert any of its rights as landlord against the marina;

(iv) 212 Ontario would not permit unauthorized access to the marina; and

(v) 212 Ontario would report to the receiver if it discovered any action out of the ordinary course of business within the marina, and would report on all of its actions with regard to the marina. [page107]

[8] Between December 8, 2014 and April 30, 2015, the receiver paid the insurance, electricity and heating costs associated with the marina. It retained former employees to preserve and safeguard the assets of the marina, collect accounts receivable, deal with customer inquiries, continue shrink-wrapping boats for winter storage and conduct an inventory at the marina. It also continued to use the marina to store customer-owned boats and various Crate Marine assets and to carry on the Crate Marine business in that respect. In March 2015, the receiver took the position that it was entitled to enforce storage and repair liens against a number of customers' boats that were docked and stored at the marina. But the receiver did not pay occupation rent.

[9] 212 Ontario took the position that the receiver owed rent in the sum of $66,821.66 per month, for a total of $319,016. In response, the receiver took the position that it was not obliged to pay occupation rent because there was a "lack of any connection between the landlord and the companies for which our client has been appointed" -- a reference to the fact that the lease itself was between 212 Ontario and the Crate brothers and had never been formally assigned to any of the Crate Marine companies.

[10] The parties' approach to the issue of occupation rent was complicated by the fact that a dispute arose over the ownership of the equipment and assets in the marina. 212 Ontario filed a proof of property claim in the receivership claims procedure and took the position that all chattels under dispute had to remain on site until this issue was resolved. During an on-site meeting in January to identify and review the machinery and equipment on-site, the receiver's representatives were present to escort 212 Ontario's representatives through the marina.

[11] Early in the receivership, the receiver expressed an interest in obtaining a new lease, or continuing the existing lease of the marina. However, these discussions did not lead to an agreement, and on January 15, 2015, 212 Ontario entered into a new lease, effective May 1, 2015, with the Pride Marine Group. Again, the receiver's representatives were present to escort the representatives of 212 Ontario and Pride during Pride's attendance to review the marina prior to the commencement of its tenancy.

[12] At one point, 212 Ontario indicated that it would bring a motion in the receivership to "carve out" the marina and the machinery and equipment from the receivership, but it never pursued that option. It eventually brought this motion to establish its entitlement to occupation rent. [page108]

The Decision of the Motion Judge

[13] The motion judge determined that the receiver was not obliged to pay occupation rent. He recognized that court-appointed receivers are bound by the same general principle that applies to anyone occupying another's property -- there is an implied agreement by the occupier, subject to a rebuttable presumption, to pay rent for the use of the occupied property: Beatty Limited Partnership (Re) (1991), 1991 CanLII 7260 (ON SC), 1 O.R. (3d) 636, [1991] O.J. No. 6, 1 C.B.R. (3d) 225 (Gen. Div.), at para. 6; B.L. Armstrong Co. v. Kisluk, [1981] O.J. No. 939, 39 C.B.R. (N.S.) 230 (H.C.J.); Bank of Montreal v. Steel City Sales Ltd., 1983 CanLII 3010 (NS SC), [1983] N.S.J. No. 407, 148 D.L.R. (3d) 585 (S.C. (T.D.)). He concluded, however -- relying on Beatty -- that the act of occupation required "some form of deprival of use" and that the receiver's conduct did not cross that threshold in the circumstances.

[14] The motion judge also referred to the receiver's argument that it was not obliged to pay occupation rent because the tenants were the Crate brothers personally and not CMS over whose assets it had been appointed receiver. He observed that it was unnecessary to deal with this issue, given his foregoing conclusion, but went on to find in any event that there was a sufficient nexus between 212 Ontario, as landlord, and CMSL -- CMSL operated the marina, paid rent to 212 Ontario, received revenues and paid costs -- to make CMSL responsible under the lease.

The Issues

[15] The primary issue raised on the appeal is whether the motion judge erred in concluding that the receiver did not occupy the marina and was therefore not obliged to pay occupancy rent.

[16] I conclude that he did.

[17] The respondents raise two other issues as well. They submit that

(a) the result reached by the motion judge is nonetheless correct because there was no privity between CMSL (over whose assets the receiver had been appointed) and 212 Ontario; and

(b) the record supports a finding that the presumption in favour of occupancy rent is rebutted in the circumstances or that equitable considerations such as estoppel or detrimental reliance lead to the same conclusion.

[18] I would not give effect to the latter arguments. [page109]

Law and Analysis

[19] In my opinion, the motion judge misapprehended the nature of the test for determining whether the receiver was liable to pay occupation rent. The appellant contends that the motion judge imported a requirement for "deprivation of use" in addition to "occupation" of the premises before the obligation to pay occupation rent is triggered. While that may be, I think it is more accurate to say that he erred by focusing primarily on "deprivation of use" -- when there was admitted possession and evidence of actual occupation -- and by conflating "deprivation of use" in the real property sense with "deprivation of use" in a more general strategic or economic benefit/detriment sense. This skewed his approach to whether the receiver's activities crossed the occupation threshold for purposes of liability for occupation rent.

[20] The motion judge did not deal with either the rebuttable presumption or the equitable arguments, presumably because he concluded that the receiver had not crossed the initial "occupation" threshold. However, he dealt with a number of the considerations upon which the respondents rely in this context in his "deprivation of use" analysis. For the reasons outlined below, this was an erroneous approach, in my view. That said, I am not persuaded that the record supports either a finding that the presumption in favour of the obligation to pay occupancy rent has been rebutted, or that equitable considerations would work against a finding of liability.

[21] Finally, I agree with the motion judge's finding that there is a sufficient nexus between CMSL and 212 Ontario in relation to the lease to provide the necessary privity between 212 Ontario and the receiver for the liability to pay occupation rent to flow from the receiver to 212 Ontario: see Checkout Foodmarts Ltd. (Re), [1975] O.J. No. 1643, 21 C.B.R. (N.S.) 151 (H.C.J.).

Occupation/deprivation of use

[22] As the jurisprudence referred to above establishes, there is a long-standing principle that where a person occupies the property of another, that occupation gives rise to a rebuttable presumption, based on an implied contract, that the occupier will pay rent to the owner for the use of the property. Receivers, liquidators and trustees in bankruptcy and others with similar obligations who occupy the premises of the debtors are bound by that principle: see Beatty, at para. 6; Kisluk; Steel City Sales; Young v. Bank of Nova Scotia (1915), 1915 CanLII 531 (ON CA), 34 O.L.R. 176, [1915] O.J. No. 59 (C.A.); Zalev v. Harris, [1924] O.J. No. 341, 27 O.W.N. 197 (C.A.); [page110] Christopher A.W. Bentley, John McNair and Mavis Butkus, Williams and Rhodes' Canadian Law of Landlord and Tenant, loose-leaf (2015--Rel. 9), 6th ed. (Toronto: Carswell, 2013), vol. 1, at p. 7-11.

[23] This presumption may be rebutted where there is evidence that the parties intended the occupier would use the land without an expectation of paying compensation to the owner: Canadian Law of Landlord and Tenant; Steel City Sales, at pp. 588-89 D.L.R.; Rossiter v. Swartz, [2013] O.J. No. 162, 2013 ONSC 159 (S.C.J.), at para. 41.

[24] I agree that the jurisprudence does not support the view -- to the extent it may have been adopted by the motion judge -- that the obligation to pay occupation rent requires "some form of deprivation of use" in addition to occupation of the premises. However, the notion of "deprivation of use" led to considerable discussion on the appeal about the interaction between it and the concepts of "occupation" and "possession" raising several questions. Is deprivation of use the equivalent of occupation, or one of the indicia of occupation, or something in addition to occupation, for these purposes? Is possession the same as occupation for these purposes? Does taking possession constitute a sufficient deprivation of use to constitute occupation for these purposes?

[25] While these questions may generate an interesting debate at a certain esoteric level, they need to be kept in perspective for purposes of determining whether a trustee or receiver has occupied premises in the context of liability for occupation rent. The threshold test for occupation rent is "occupation". It is not deprivation of use or possession. However, deprivation of the right of use, or possession, to the exclusion of the landlord will no doubt -- in most cases at least -- be tantamount to occupation for these purposes.

[26] Beatty illustrates this, it seems to me. In that case, the trustee took possession and changed the locks to prevent theft and vandalism, but did not provide the landlord with a key until much later, thereby excluding the landlord from the premises. The trustee did not assume actual occupation of the premises, nor did it continue to operate the bankrupt's business from them.

[27] The issue was whether, by reason of this conduct, the trustee had "occupied" the premises. The issue was not whether, in addition to occupation, the landlord had otherwise been deprived of a right of use. Steele J. concluded that the trustee's taking of possession, leading to the deprivation of the landlord's use, was the equivalent of occupation. At para. 13, he said: [page111]

The issue in the present case is whether the trustee has occupied the premises. It was argued that the trustee never went into occupation of the premises and in fact that he expressly stated that he had no intention of so doing. However, the landlord was deprived of his right of use of the premises because he did not have the keys until some period of time later. In my opinion the deprivation by the trustee of the landlord's right of possession is the same as actual occupation by the trustee. It is a question of fact in each case whether or not the trustee actually occupied or deprived the landlord of his right of use of the premises.

(Emphasis added)

[28] This approach makes sense to me. Where deprivation of use, through the taking of possession or otherwise, is tantamount to actual occupation, the liability to pay occupation rent is engaged. That is what Steele J. meant when he referred to the trustee having "actually occupied or deprived the landlord of his right of use of the premises".

[29] "Right of use" in this context is a real property concept, however. A landlord's right to receive occupation rent stems from the landlord's real property interest in the lands. It is not tethered to whether that use gives rise to a net benefit or detriment to the landlord in an overall economic benefit or other sense. This is where the motion judge's analysis of the factual basis for occupation led him down an impermissible path, in my view. Respectfully, he erroneously conflated "deprivation of the use of the premises" in the real property sense, with "deprivation of use" in a more general cost/benefit or economic sense.

[30] The respondents are right when they submit that determining "occupation" is a factual exercise and that the motion judge correctly referred to, and to some extent dealt with, the general factors found in the jurisprudence to be relevant to that exercise: (i) changing the locks; (ii) keeping assets of the estate on the premises; (iii) bringing prospective buyers to the premises; (iv) employing persons to perform maintenance work on the premises; and (v) employing persons to take inventory of the premises: Sasso v. D. & A. MacLeod Co. (1991), 1991 CanLII 7170 (ON SC), 3 O.R. (3d) 472, [1991] O.J. No. 676 (Gen. Div.), at paras. 32-37; Sawridge Manor Ltd. v. Western Canada Beverage Corp., 1995 CanLII 641 (BC CA), [1995] B.C.J. No. 1371, 61 B.C.A.C. 32, 1995 CarswellBC 169 (C.A.), at paras. 16-20. With the possible exception of (iii), all of these factors, and more, were present here. But the motion judge downplayed them, and his treatment of their impact appears to have been subsumed in his overall view that 212 Ontario had not suffered any economic or strategic disadvantage as a result of what had happened.

[31] For example, in conducting his analysis and arriving at his conclusion, at para. 30, that "[o]n the threshold question . . . the Receiver did not 'occupy' the premises in the sense necessary [page112] to attract liability for occupation rent", the motion judge focused primarily on the following considerations:

212 Ontario "had a significant economic interest in these boats remaining on site until April 30, 2015" in order to retain the existing customers' business (para. 15);

212 Ontario "would [not] have done anything differently than the Receiver did upon its appointment to secure the property" (para. 24);

there may have been advantages to 212 Ontario to have the equipment remain on site for purposes of the dispute between it and the receiver over the machinery and equipment (para. 26); and

the security measures put in place by the receiver were equally advantageous to 212 Ontario (para. 29).

[32] All of these factors were borne out on the record, but the focus on them was misplaced. The motion judge's approach impermissibly substituted equity or an analysis of the economic benefits or disadvantages flowing from the use of the premises, for a real property analysis as to whether 212 Ontario had been deprived of its real property rights of use of the premises.

[33] At the time the receivership order was granted, there were substantial arrears of rent totalling over $500,000. Had the receiver not taken possession of and exerted control over the premises to the exclusion of 212 Ontario, 212 Ontario would have been free to exercise its rights over the property as landlord in December 2014. It could have taken steps to terminate the lease and obtain possession. It could have exercised its right to distrain. It could have sought a new tenant to take possession immediately, instead of having to wait until the termination of the lease at the end of April 2015.

[34] The receiver submits that 212 Ontario was precluded from taking such steps in any event, because of the terms of the receivership order that was obtained at the behest of Crawmet, the secured creditor, and not by the receiver. The deprivation therefore flows from the order itself and not from the conduct of the receiver, the argument goes.

[35] I do not accept this submission. While there may be some force in the response that it was all part of the receivership process, the ultimate answer is that the receiver was "empowered and authorized, but not obliged" to act in respect of the marina property under the terms of the order, as it chose to do. [page113]

Factual errors

[36] Had he not been drawn down the path of an economic or strategic benefits/detriment analysis, the motion judge may have recognized that in reality the receiver had both taken possession of and assumed actual occupation of the marina or -- to put it another way -- had deprived 212 Ontario of its rights of use of the premises in a manner that constituted occupation. His finding to the contrary amounts to palpable and overriding error on this record, in my respectful opinion.

[37] The receiver admitted and advised the court that it had taken possession of the marina on or shortly before December 8, 2014 -- the date when the final receivership order was made. It paid the insurance, electricity and heating costs associated with the marina.

[38] The receiver took control of the premises to the exclusion of others, including 212 Ontario. While it is true that 212 Ontario was provided with a key to the premises, the terms of the key agreement were very restrictive and -- except perhaps in the case of an emergency threat to the property, such as a fire or break-in -- effectively precluded 212 Ontario from access to the premises except with the permission of, and under the control of, the receiver. Importantly, the terms of access specified that "212 Ontario would not use the access to assert any rights as landlord against the Marina".

[39] As noted above, the receiver employed former Crate Marine employees not only to preserve and safeguard the assets of the marina, but also to collect accounts receivable, deal with customer inquiries, continue shrink-wrapping boats for winter storage after December 8, 2014 and conduct an inventory at the marina. It also continued to use the marina to store customer-owned boats and various Crate Marine assets and to carry on the Crate Marine business in that respect. In March 2015, the receiver took the position that it was entitled to enforce storage and repair liens against a number of customers' boats that were docked and stored at the marina.

[40] Finally, 212 Ontario's visit to the marina to assess the equipment and inventory was supervised by representatives of the receiver, and it required the consent of the receiver to show the premises to the ultimate new lessee, Pride Marine, and was subject the supervision of the receiver during that period of access.

[41] The receiver "occupied" the marina giving rise to the obligation to pay occupation rent. [page114]

The nexus between 212 Ontario and CMSL

[42] The respondents argue that the result reached by the motion judge is nonetheless correct because there was no privity between CMSL (over whose assets the receiver had been appointed) and 212 Ontario. The lease was entered into between 212 Ontario, as landlord, and the Crate brothers in trust for a company to be incorporated, as tenant. The lease was never formally assigned to CMSL or any of the Crate Marine companies.

[43] The motion judge dealt with this argument, even though he viewed it as unnecessary given his conclusion that the occupation threshold had not been met. In doing so, he said, at para. 33:

Had it been necessary to do so, I would have held that because Crate Marine Sales Limited in fact operated from the Marina, actually paid the rent and booked Marina revenues and costs, there was a sufficient nexus with 212 Ontario to make Crate Marine Sales Limited liable to 212 Ontario for the use of that property. Accordingly, I would have found that one of the exceptions specifically identified by Henry J. (payment of rent by the occupier to the landlord, who accepts it) applied here so that the core principle of Re Checkout Food Marts has no application.

[44] I agree with these findings and reject the argument that occupation rent is not payable because the lease was technically between 212 Ontario and the Crate brothers.

Equitable considerations

[45] Having concluded that 212 Ontario had not met the threshold test of establishing that the receiver occupied the marina, the motion judge did not go on to consider whether there were circumstances that would rebut the presumption that it was liable to pay occupation rent. The respondents submit that there are equitable factors such as estoppel or detrimental reliance which should lead to such a conclusion.

[46] I am not persuaded by this argument.

[47] As noted earlier, the presumption may be rebutted where there is evidence that the parties intended the occupier would use the land without an expectation of paying compensation to the owner: Rossiter v. Swartz, at para. 41; Canadian Law of Landlord and Tenant; Steel City Sales, at pp. 588-89 D.L.R. It is not tenable to conclude that the parties intended the receiver would use the land without compensation when, on the evidence, 212 Ontario was adamant throughout -- and confirmed this on multiple occasions in correspondence between counsel -- that it was seeking occupation rent.

[48] The motion judge did not address whether there were equitable grounds upon which the presumption could be rebutted. The grounds suggested by the respondents centre on the [page115] collateral dispute between the parties over entitlement to the machinery and equipment at the marina. Essentially, the argument is: 212 Ontario insisted that the disputed machinery and equipment remain on site pending a resolution of the dispute over who owned them; it was in 212 Ontario's financial interest that the machinery and equipment (and the boats owned by third party customers) remain on site; the receiver acquiesced in this arrangement; and therefore there was no expectation that the receiver would pay occupation rent for the use of the premises. It would be inequitable to require the receiver to do this because of the benefit enjoyed by 212 Ontario and because the receiver apparently relied to its detriment on this arrangement by not removing the machinery and equipment out and therefore avoiding the obligation.

[49] Again, this is a difficult argument to make in face of 212 Ontario's clear and adamant position throughout that it expected occupation rent to be paid. In any event, the receiver took possession of and used the premises for more than just the security and protection of the machinery and equipment. It continued to operate CMSL's business, collecting accounts receivable as it did, and, although it may never have brought a potential purchaser to the marina, the receiver did attempt to find a buyer for Crate Marine's business as a going concern. The fact that it was ultimately unsuccessful in doing so does not suggest that it should not pay occupation rent for its use of the premises.

[50] I would not give effect to these submissions.

Conclusion and Disposition

[51] The receiver is liable to pay occupation rent.

[52] The appeal is therefore allowed, the order below set aside and in its place an order is granted

(a) declaring that A. Farber & Partners Inc. occupied the Lagoon City Marina from December 8, 2014 to April 30, 2015, and is therefore obliged to pay occupation rent for that period; and

(b) requiring A. Farber & Partners Inc. to pay 2124915 Ontario Inc. occupation rent in the amount of $319,016 plus applicable interest.

[53] In accordance with the agreement of counsel, the costs of the appeal are payable to the appellants by the respondent, A. Farber & Partners Inc., fixed in the amount of $15,000, inclusive of disbursements and HST. No costs are awarded for or [page116] against the respondent, Crawmet Corp. If the parties are unable to agree on costs before the motion judge, they may make brief submissions to the panel, not to exceed three pages in length, within two weeks of the release of this decision.

Appeal allowed.

End of Document