Sam A. Presvelos

The appellant tenant appealed a decision finding it had not validly exercised its option to renew a commercial lease and denying relief from forfeiture.

The tenant argued the landlord waived the requirement for written notice of renewal through email negotiations about rent.

The Court of Appeal dismissed the appeal, upholding the application judge's findings that the landlord did not waive strict compliance with the renewal provision and that the tenant's conduct—including hedging its bets on renewal and paying rent late—did not warrant equitable relief from forfeiture.

A case management conference was held to set procedural directions for an appeal from an interim decision of the Landlord and Tenant Board.

The court ordered that the appeal proceed before a three-judge panel via video conference.

Detailed directions were provided regarding the electronic filing of documents, factums, compendiums, and costs materials using a password-protected drop box.

The tenant brought a motion to stay an eviction order pending its appeal of a decision finding it failed to validly exercise its option to renew a commercial lease.

The court first determined that the appeal properly lay to the Court of Appeal, not the Divisional Court, and transferred the appeal.

Sitting as a Superior Court judge, the court then applied the RJR-MacDonald test and granted the stay, finding the appeal raised a serious issue, the tenant would suffer irreparable harm to its business if evicted, and the balance of convenience favoured the tenant.

This case involved an application and cross-application concerning a commercial lease dispute.

The tenant, 2324702 Ontario Inc. (Remix), sought a declaration that its lease was in full force and effect and had been validly renewed.

The landlord, 1305 Dundas W Inc., sought termination of the lease and possession.

The court granted Remix relief from forfeiture for a single instance of non-payment of rent, finding the breach not grave and the landlord suffered no damages.

However, the court found that Remix failed to properly exercise its option to renew the lease, as its communications were equivocal and conditional, not a clear and unequivocal notice.

The court also rejected arguments of waiver and estoppel regarding the renewal.

Additionally, the court applied estoppel against the landlord, preventing it from retroactively claiming increased realty taxes based on a strict lease provision, due to its prior conduct of adopting the previous landlord's calculation method.

Ultimately, the lease was declared expired, and Remix was ordered to vacate the premises within 60 days, while also being ordered to pay outstanding rent increases and a reasonably allocated share of realty taxes.