Court of Appeal for Ontario

Citation: Toronto (City) v. Queen-St. Patrick Market Inc., 2021 ONCA 276

Date: 20210427

Docket: C67921

Before: Huscroft, Nordheimer and Harvison Young JJ.A.

Between

The City of Toronto Applicant (Respondent)

and

Queen-St. Patrick Market Inc. Respondent (Appellant)

Counsel: Jeffrey Larry and Daniel Rosenbluth, for the appellant Michele Ann Wright and Graham Thomson, for the respondent

Heard: April 26, 2021 by video conference

On appeal from the judgment of Justice Janet Leiper of the Superior Court of Justice, dated December 12, 2019.

APPEAL BOOK ENDORSEMENT

[1] The appellant argues that the application judge erred in finding it was in breach of its lease with the respondents and denying it relief from forfeiture.

[2] The appellant’s submissions essentially invite us to revisit the application judge’s findings. That is not our function on appeal. The application judge’s interpretation of the lease is entitled to deference. We see no error, let alone a palpable and overriding error that would justify this court’s intervention. The appellant left the building vacant for almost two years. The application judge’s finding that this breached the use clause is amply supported by the record and we agree with her analysis that the respondent was entitled to terminate the lease as a result.

[3] Nor is there any basis for interfering with the application judge’s decision denying the appellant relief from forfeiture. The appellant acknowledges that the application judge stated the relevant legal principles. She found that the appellant’s conduct revealed a pattern of non-compliance with the terms of the lease. Her decision to exercise her discretion to deny relief from forfeiture in these circumstances reveals no error of principle and is entitled to deference in the absence of a palpable and overriding error. We see none.

[4] The appeal is dismissed. The respondent is entitled to its costs in the agreed amount of $15,000, inclusive of taxes and disbursements.