COURT FILE NO.: CV-16-552289 DATE: 20170228 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

YAMI TALK CATERING MANAGEMENT LTD. and CHENBEIN ZHONG Plaintiffs – and – 2309603 ONTARIO INC., PASOFINA CANADA CORPORATION and ZAHID NASEER Defendants

Counsel: Shane E. Kazushner for the Plaintiffs Chandaral Hanapangoda for the Defendants

HEARD: February 23, 2017

PERELL, J.

REASONS FOR DECISION

A. Introduction and Overview

[1] The Plaintiffs, Yami Talk Catering Management Ltd. (“the Tenant”) and Chenbein Zhong, sue 2309603 Ontario Inc. (“the Landlord”) and Pasofina Canada Corporation, and their owner, Zahid Naseer, for breach of contract, misrepresentation, conversion, and unjust enrichment with respect to an Agreement to Lease a commercial condominium unit. The Plaintiffs bring a motion for a summary judgment claiming damages of $77,050.21.

[2] Among several allegations, the only allegation that has substance is the allegation that the Landlord breached a promise in the Agreement to Lease to provide an exclusive right to use the leased premises as a Chinese cuisine restaurant, in the food court of a strip plaza. The Defendants, however, submit that the Plaintiffs’ summary judgment motion should be dismissed along with the Plaintiffs’ whole action because there were no actionable misrepresentations and no breaches of contract. The Defendants submit that there should just be a trial of their counterclaim for damages for breach of the Agreement to Lease.

[3] For the reasons that follow, a summary judgment motion is the appropriate, fair and just way to resolve this landlord and tenant dispute.

[4] For the reasons that follow, I grant the Tenant a judgment against the Landlord of $69,897.78 plus pre-judgment interest from the date of the commencement of the action at the statutory rate. I dismiss the Plaintiffs’ action against the Defendants Pasofina Canada Corporation and Mr. Naseer without costs. I dismiss the Defendants’ counterclaim without costs.

B. Evidentiary and Procedural Background

[5] The Plaintiffs commenced their action on May 6, 2016. The Defendants delivered a Statement of Defence and Counterclaim on June 7, 2016, and the Plaintiffs delivered a Reply and Defence to Counterclaim on July 5, 2016.

[6] In their counterclaim, the Defendants claim the following relief: (a) damages for negligence, misrepresentation and a breach of the contract in the amount of $50,000.00; (b) payment of arrears in the additional rent in the amount of $750.00; (c) payment of compensation for the co-ordination of the construction work performed by Mr. Naseer in the amount of $5,000.00; (d) punitive, aggravated and / or exemplary damages in the amount of $50,000.00; (e) reimbursement of extra charges of the individual contractors and unpaid HST in the amount of $8,000.00; (f) pre-judgment and post-judgment interest pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43 as amended; (g) costs of defending the Statement of Claim on a substantial indemnity basis; (h) costs of prosecuting this counterclaim on a substantial indemnity basis; and (i) such further and other relief as this Honourable Court may deem just.

[7] There has been no documentary discovery or examinations for discovery.

[8] On October 14, 2016, the Plaintiffs brought a motion for summary judgment. Their motion was supported by two affidavits from Wei Lui, Mr. Zhong’s wife.

[9] The Defendants responded with an affidavit from Mr. Naseer.

[10] There were no cross-examinations.

C. Are the Action and Counterclaim Appropriate for a Summary Judgment?

[11] The first matter to address is whether the action and the counterclaim may appropriately be resolved by means of a summary judgment.

[12] Notwithstanding the absence of documentary discovery and examinations for discovery, there has been fulsome documentary disclosure that appears to be equivalent to what would have been produced had there been a discovery plan.

[13] Given that there were no cross-examinations, the issues about credibility are based on arguments about whether the deponent’s evidence is credible having regard to the circumstances and the documentary evidence.

[14] Most, if not all, of the respective arguments about credibility that appeared in the factums were about immaterial issues; viz., how credible Ms. Lui’s evidence was that she and her husband were not fluent in English is not a matter that I need decide. Similarly, I need not decide if Mr. Naseer made only an offer to lease or also made an offer to construct and to lease proposal during the initial negotiations.

[15] And I do not need to decide whether the Tenant’s motivation in terminating the Agreement to Lease was to escape from a bad deal. In this last regard, I note that there was no cross-examination of Ms. Lui on this point, and, in any event, regardless of motivation, the genuine issue was whether the Tenant had a legal right to terminate the Agreement to Lease in the circumstances of this case based on the exclusive rights provision. There is no reason to think that either Ms. Lui or Mr. Naseer were lying; they were simply seeing things from their own perspective. I can decide what was said and done about the exclusive rights provision based on the documentary evidence and without making any hard findings about the credibility of the deponents.

[16] The parties are to be taken to have put their best evidentiary foot forward for the purposes of the summary judgment motion, and an analysis of the evidence reveals that the issue about the exclusive rights provision is dispositive of both the claim and the counterclaim. I am able to fairly determine the facts about this issue and to apply the law, which is a normative contract law problem. I can fairly resolve the dispute between the parties. I am able to reach a fair and just determination on the merits by exercising the powers afforded to me under Rule 20.

[17] Therefore, the case at bar is an appropriate case for a summary judgment.

D. The Claims against Pasofina Canada Corporation and Mr. Naseer

[18] The next matter that may conveniently be discussed at the outset is the matter of the claims against Pasofina Canada Corporation and Mr. Naseer.

[19] The Plaintiffs argue that the corporate veil should be pierced and that the Landlord, Pasofina Canada Corporation, and Mr. Naseer should be treated as a single legal entity.

[20] The corporate veil may be pierced when the corporation is incorporated for an illegal, fraudulent or improper purpose, or where respecting the separate legal personality of the corporation would be flagrantly unjust. The separate existence of a corporation may be ignored when the corporation is under the complete control of the shareholder and its existence is being used as a means to insulate the shareholder from responsibility from fraudulent or illegal conduct: Mitchell v. Lewis, 2016 ONCA 903 at para. 21; 642947 Ontario Ltd. v. Fleischer (2001), 56 O.R. (3d) 417 (C.A.); Shoppers Drug Mart Inc. v. 6470360 Canada Inc. (c.o.b. Energyshop Consulting Inc./Powerhouse Energy Management Inc.), 2014 ONCA 85 (Ont. C.A.); Kosmopoulos v. Constitution Insurance Co., [1987] 1 S.C.R. 2.

[21] There is no evidentiary or legal basis to pierce the corporate veil to make Mr. Naseer or his separate corporation, Pasofina Canada Corporation, liable and there are no other viable claims against them, including the misrepresentation claims against Mr. Naseer or against Pasofina Canada Corporation. Mr. Naseer did not stand apart from his corporations and there are no independent tort claims or breach of contract claims against him or against his other corporation.

[22] Therefore, the claims against Mr. Naseer and Pasofina Canada Corporation should be dismissed without costs. This is not an appropriate case to pierce the corporate veil.

E. The Calculation of Damages

[23] It is convenient to deal with the calculation of damages next.

[24] The Plaintiffs claim damages for breach of contract, misrepresentation, conversion, and unjust enrichment. As I shall explain below, the Tenant has a claim for breach of the Agreement to Lease. Practically speaking, the Tenant’s success on the breach of contract claim makes the claims for misrepresentation, conversion, and unjust enrichment all redundant.

[25] Before discussing the merits of the Tenant’s breach of contract claim, it is convenient to calculate its damages for the breach of contract claim, which are set out in the chart below.

Claim	Amount
First and Last Months’ Rent	$4,400.00
Additional Rent	$1,750.00
Construction Contract	$47,000.00
Registration Fee	$530.00
Building Permit Fee	$600.40
Engineer Service Fee	$723.20
Utensil & Equipment Purchased from China	$837.27
Equipment purchased in Canada	$10,018.05
U-Haul Rent for Equipment Moving	$57.54
Dinesafe Application	$96.30
The Admill Group Toronto (Flyer Distribution)	$1,384.22
Chinese Media Advertisement Fee	$1,300.00
POS Machine (Moneris)	$282.50
Utility Bill	$464.60
Camera Data (Feb. 2, 2016 to Oct. 3, 2016)	$293.92
Camera Data	$159.78
BDC Loan Interest Paid (26-08-2015 to10-10-2016)	$3,061.45
BDC Loan Interest Paid Oct. 2016- Feb. 2017	$1,741.00
BDC Loan Principal	$500.00
Futurepreneur Loan Cost (Loan: $12,000.00 CAD) Interest Paid (26-08-2015 -10-10-2016)	$942.00
Flight Itinerary — Air Canada	$907.98
TOTAL	$77,050.21

[26] Of these claims, I disallow, $7,152.43; namely: the air travel for Mr. Zhong’s mother’s trip to Canada, which was also a family visit. I disallow the loan principal and interest claims as double counting once pre-judgment interest is allowed on the balance of the claim. I disallow the Camera Data claims because these contracts should have been cancelled and the Plaintiffs failed to mitigate.

[27] I allow the balance of the claims, $69,897.78 plus pre-judgment interest from the date of the commencement of the action at the statutory rate.

[28] This is a straightforward breach of contract claim and there is no factual basis for an award of aggravated or punitive damages.

F. Factual Background

[29] As will appear from the discussion below, there is only one viable claim in this proceeding, and it is the breach of contract claim with respect to the exclusive rights provision. The Tenant alleges that it was promised an exclusive right to use the leased premises at the plaza for a Chinese cuisine restaurant. The Tenant alleges that this promise was breached. The factual background to this claim and the others is as follows.

[30] The Plaintiff, Chenbein Zhong, and his wife, Wei Lui, are immigrants from the People’s Republic of China. They operated an immigration consultation firm called Everlasting Immigration Corp., but in June 2015, Mr. Zhong and Ms. Lui decided to change businesses. Mr. Zhong’s mother, who is a resident of China, is a trained chef, and he decided to employ her and open a Chinese cuisine restaurant in Toronto.

[31] Mr. Zhong and Ms. Lui began a search for premises and noticed an online advertisement on Kijiji posted by Mr. Naseer for Unit A-207 in a new plaza in Toronto. Through his corporation, the Landlord, Mr. Naseer owned this unit in a commercial condominium project known as “The Diamond at Don Mills,” which was a strip plaza development on Mallard Road in Toronto, Ontario. Unit A-207 was part of the food court of the plaza. Mr. Naseer was the owner of three units in the development, which was being managed by a property manager.

[32] On June 26, 2015, Mr. Naseer met Mr. Zhong and Ms. Lui at the site. At the time of the meeting, Unit A-207 was a shell without mechanical, electrical, plumbing, or HVAC systems and without fixtures or improvements. Mr. Zhong and Ms. Lui were concerned about the viability of a Chinese restaurant in this new plaza and about the expense of constructing a restaurant in the shell.

[33] The Plaintiffs allege that to assuage their concerns and to persuade them to enter into a lease agreement, in addition to representations about his good relationship with the property manager, and about his skill and knowledge in leasing premises, and as a project manager and business consultant, Mr. Naseer made the following representations: (a) the unit would be improved with the HVAC and other systems appropriate for a restaurant; (b) that if he was hired as contractor and project manager, the construction costs to outfit the premises for a restaurant would be approximately $25,000 per month with a construction timetable of one month; (c) that he would offer an eight-month period of free rent to encourage them to enter into the lease and to offset the costs of the construction of the premises; (d) that he would work with the property manager to obtain for them free outdoor billboard signage for the restaurant in the centre part of the billboard; (e) that he would work with the property manager to obtain for them exclusive rights to operate a Chinese cuisine restaurant in the plaza; and (f) that if exclusive rights for a Chinese cuisine restaurant were not obtained, Mr. Naseer would repurchase the unit and make the Plaintiffs whole.

[34] There is no substance to the Plaintiffs’ allegations that some or all of these representations were false. The parties were negotiating and those negotiations culminated in a written agreement at their next meeting. The nature and substance of the representations were formalized into the written terms of a lease agreement.

[35] On July 1, 2015, Mr. Naseer met Mr. Zhong and Ms. Lui again. The meeting was at his office. Mr. Zhong and Ms. Lui testified that they made it clear that it was fundamentally important that they obtain free signage and exclusive rights to operate a Chinese cuisine restaurant at the plaza. They said that without these conditions being satisfied, they would not have entered into any agreement. They say that Mr. Naseer said that he would confirm that they had exclusive rights within six months failing which the agreement would be terminated without penalty and they would get their money back. The negotiations culminated in a written agreement.

[36] The parties set out their agreements and signed the standard form Ontario Real Estate Association Agreement to Lease - Commercial (Long Form).

[37] 2309603 Ontario Inc. signed as Landlord. Mr. Zhong signed as Tenant but subsequently, the agreement was amended to substitute Yami Talk Catering Management Ltd. as Tenant.

[38] The lease was for a five-year term with a fixed minimal rent of $1,946.90 per month. There were renewal rights. The Agreement to Lease contained the following terms and conditions in Schedule A, which addressed the Tenant’s concerns and the extent of the Landlord’s promises:

(2) Notwithstanding the Lease Commencement Date, the Tenant shall not be obliged to pay minimum rent during the first eight month(s) of the term, provided, however, that the Tenant shall be responsible to pay $250/month for additional rent from the Lease Commencement Date. The additional rent will be deducted as credit to tenants on the future rent payment. In order to prepare the premises for the operation of its business, provided that, during the said rent-free period, the Tenant shall comply with all the terms and conditions of the lease.

(3) The Tenant may make any necessary alterations and improvements to said premises, at the Tenant's own expense, subject to the Landlord's written consent, and such consent shall not be unreasonably withheld. The Tenant may, however, make any necessary minor internal improvements to said premises, at the Tenant's own expense, without the Landlord's consent and in compliance with all applicable governmental bylaws and codes governing the use of the demised premises.

(7) The Landlord warrants that all mechanical, heating, ventilating, air conditioning equipment (HVAC), and electrical equipment will be in good working order, normal wear and tear excepted, on or before the occupancy date set herein.

(16) The Tenant shall have the option to cancel the Lease at any time during the Lease, provided that the Tenant gives the Landlord at least 60 days written notice of the Tenant's intention to cancel, and provided that the Tenant is not in default at the time of giving of such notice, or at the time of termination itself.

(19) The Landlord agrees to assist the Tenant to get the outdoor Billboard establishment without any charges which should be put in the centre part of the whole Billboard during the lease term of agreement.

(21) The Landlord agrees to assist the Tenant to get the approval of exclusive right to operate Chinese Cuisines in the food court plaza from the board within six (6) months. The Tenant should provide more specific to the food items in their menu. The Tenant has the right to terminate this agreement without any penalties and the Landlord agrees to give a full refund for all received payments should the Landlord fail to get the above-said approval of exclusive right within six months since the acceptance of this offer.

(22) This lease offer is conditional on the Tenant obtaining improvement loan from the bank within 5 weeks of the date of the acceptance of this offer.

[39] The standard form agreement also contained an entire agreement clause excluding representations and warranties not found in the written agreement. The entire agreement clause stated:

AGREEMENT IN WRITING: If there is any conflict or discrepancy between any provision added to this Agreement (including any Schedule marked hereto and any provision in the standard preset portion hereof, the added provision shall supersede the standard preset provision to the extent of such conflict or discrepancy. This Agreement, including any Schedule attached hereto, shall comprise the entire Agreement between Landlord and Tenant. There is no representation, warranty, collateral agreement or condition which affects this Agreement other than as expressed herein. This Agreement shall be read with all changes of gender or number required by the context.

[40] Mr. Zhong and Ms. Lui paid the first and last months’ rent of $2,200 per month. They also eventually paid the $250/month additional rent up to the end of January 2016 in the amount of $1,750.00.

[41] On July 2, 2015, Mr. Zhong and Ms. Lui closed their immigration business and focused their attention on their new business project.

[42] On July 6, 2015, Mr. Naseer sent an email message to the property manager inquiring about obtaining a statement in the Condominium Declaration with respect to the billboard sign and about exclusive rights for the Chinese cuisine restaurant for the Plaintiffs. The email message stated:

I have signed a 5-year lease with a client who is interested in my food court unit to open a Chinese food restaurant and wanted to have exclusive rights to have their sign in the middle of the billboard …

These two conditions are part of my lease agreement and need to be fulfilled otherwise I will lose this opportunity.

[43] On July 6, 2015, Mr. Naseer asked the Plaintiffs to provide their quotes for construction costs because he wished to make a bid to be the contractor for the project.

[44] On July 7, 2015, Mr. Zhong sent Mr. Naseer the list of food items intended for the Chinese cuisine restaurant. Mr. Zhong’s message stated: “Thanks for your assistance and I am looking forward for a good news from you for the exclusive right.” The information was passed on to the property manager.

[45] On July 8, 2015, after learning that another restaurant in the food court was planning to offer bubble tea and Chinese cuisine, there was an exchange of text messages between Ms. Zhong and Mr. Naseer as follows:

[Zhong] I saw the agent of A206 just now, she said her unit could do both Chinese Cuisine and exclusive Bubble Tea. So, I think we should get our exclusive right for certain CHINESE Cuisine ASAP?

[Naseer] Please do not share further details with these guys. So far nobody has Chinese restaurant exclusive right. A206 only has bubble teas right. I will send you the condo declaration later today for your info.

[46] Later that day, Mr. Zhong and Mr. Naseer texted about the billboard signage and Mr. Naseer sent the Condominium Declaration, which indeed did not grant to any plaza tenant any exclusive rights for a Chinese cuisine restaurant.

[47] During July, the Plaintiffs obtained two quotations for the construction of the restaurant. One quote was for $81,000; the other was for $92,660.

[48] On August 5, 2015, after reviewing the plans and drawings, the property manager approved the restaurant for Unit A-207. The Defendants submit that this approval satisfied term 21 of the Agreement to Lease; i.e., the exclusive rights provision. The Defendants submit that the approval of the property manager meant the approval of construction of the unit into a restaurant and the approval of the operation of the restaurant and the approval of the food items offered by the restaurant. This is the main contentious point about which I will return to below in the discussion and analysis; however, for present purposes, I foreshadow that in my opinion, as a legal matter, this approval on August 5, 2015 did not satisfy the exclusive rights provision of the Agreement to Lease.

[49] As a factual matter, I find as a fact that for the period after August 5, 2015 until March 2016, the situation was that the Tenant continued to want the exclusive right for Chinese cuisine in a written document issued by property management and Mr. Naseer testified that he made several requests to property management. He says that he was told that the property manager was not authorized under the Condominium Declaration to give that assurance but the approval procedure would protect the exclusive rights of every restaurant in the food court. Mr. Naseer assured the Plaintiffs that they would eventually receive a formal amendment to the Condominium Declaration protecting Unit A-207 as having the exclusive right for a Chinese cuisine restaurant, but in the meantime, the Tenant was protected by the vetting process being supervised by the property manager.

[50] I find as a fact that the Tenant never abandoned the requirement for the satisfaction of term 21 but did waive the six-month deadline for performance, which expired on December 21, 2015.

[51] On August 8 and 9, 2015, Mr. Naseer’s company, Pasofina Canada Corporation, provided a construction quote of $35,000 plus applicable taxes for the restaurant construction project. The quote was revised to $42,000 on August 14, 2015. The Plaintiffs agreed to retain Pasofina Canada Corporation to construct the restaurant in Unit A-207.

[52] The Plaintiffs testified that before they hired Pasofina Canada Corporation, Mr. Naseer repeated his representations that it would be advantageous and efficient and more timely to retain his company to construct the restaurant for them. The Plaintiffs allege that the construction scope of work included HVAC and other work that was the responsibility of the Landlord that they ought not to have been charged. However, not until this litigation did the Plaintiffs complain about the HVAC charges.

[53] The Plaintiffs made a $9,000 payment to Pasofina Canada Corporation on September 1, 2015, a $10,000 payment to Pasofina Canada Corporation on September 16, 2015, a $10,000 payment to Pasofina Canada Corporation on October 16, 2015, a $10,000 payment to Pasofina Canada Corporation on December 5, 2015, and an $18,000 payment on February 20, 2016 towards the construction costs. The last payment was made by three $6,000 cheques made payable to Mr. Naseer personally.

[54] The Plaintiffs received their building permit on October 16, 2015, but the construction of the restaurant was not completed in one month. The construction work continued into 2016 and was not completed until February 12, 2016. Because of the delays in completing the work, the lease was amended to change the minimum rent free period from eight to ten months.

[55] The Unit was turned over to the Plaintiffs on February 14, 2016.

[56] The restaurant opened on February 19, 2016.

[57] Ms. Lui deposed that around this time, Mr. Naseer advised the Plaintiffs that he had not been able to obtain exclusive rights for them and that they would not be receiving free or any outdoor billboard signage. She deposed that also around this time, she learned that another tenant intended to open a Chinese cuisine restaurant. She says that this made the operation of their restaurant impossible, and on March 4, 2016, the Plaintiffs closed the restaurant and told Mr. Naseer that the lease had been terminated because of the failure to obtain an exclusive right to operate a Chinese cuisine restaurant and to secure free signage on the plaza’s billboard. Mr. Naseer refused to accept the termination of the lease.

[58] On March 25, 2016, Mr. Zhong sent an email message to Mr. Naseer, as follows:

Hello Zahid,

Second, according to the agreement, we have the right to terminate the agreement without any penalties and you have to give A FULL REFUND for ALL RECEIVED PAYMENTS (TMI, First & Last Rent and Construction Fee) because you failed to get the exclusive right to operate Chinese Cuisine in the food court plaza within six months since the acceptance of this offer. (Six months is due on December 31, 2015, however it has been almost nine months since the acceptance of this offer.)

Meanwhile, according to the agreement, you should get the billboard outside without any charge during the lease term of agreement which should be put in the centre part of the billboard and you also verbally promised. However, you still do not make a commitment up to now.

Therefore, you breached the agreement first and as a matter of fact, we do not have the obligation to pay the TMI since January 01, 2016. However, we already gave you extra three months to fulfill your obligation which is stated in the agreement black and white.

Please arrange a full refund for all received payments (TMI, First & Last Rent and Construction Fee) within 5 business days upon you receive this email. If I cannot receive a full refund within 5 business days, I will take legal action against you for breach of the agreement.

[59] On March 28, 2016, Mr. Naseer replied by email as follows:

Dear Charlie and Sophie,

I am following up with management regarding the exclusive rights and billboard sign status. Will get back to you once I get their response. Thanks,

[60] The Plaintiffs retained a lawyer, Shane Kazushner, and on April 4, 2016 he wrote to Mr. Naseer, and in his letter Mr. Kazushner asserted that the Landlord had breached the Agreement to Lease, entitling the Tenant to terminate and to be reimbursed for the expenses and losses it had incurred.

[61] In turn, Mr. Naseer retained a lawyer, Chandaral Hanapangoda, and in the months that followed the parties turned to litigation and exchanged pleadings and the lawyers exchanged correspondence about what was to be done with the equipment and goods purchased and left on the premises.

[62] For present purposes, I need not detail the correspondence between the lawyers apart from saying that it contained arguments and posturing but did not resolve the matter of what to do with the goods, some of which had been affixed to the premises and some of which appear to have gone missing, and some of which have been stored by the Landlord to be retrieved because the Landlord refused to purchase them.

[63] To conclude the factual narrative, it may be noted that after the Tenant abandoned the leased premises, the Condominium Declaration was eventually amended to provide, among other exclusive uses, exclusive rights for: (a) a bubble tea restaurant; (b) a Cantonese Chinese cuisine restaurant; and (c) a Szechwan Chinese cuisine restaurant.

G. DISCUSSION AND ANALYSIS

[64] The analysis of this case is straightforward and does not involve any serious credibility issues.

[65] The Tenant argues that it was entitled to terminate the Agreement to Lease for three mutually exclusive reasons. The Landlord argues that none of the three reasons entitled the Tenant to terminate the lease, and by abandoning the restaurant after three weeks of occupancy, it was the Tenant that breached the Agreement to Lease. Therefore, the issues to be determined are whether any of the three alleged breaches of the Agreement to Lease justified the Tenant in terminating the Agreement to Lease.

[66] The three alleged breaches were: (1) that the Landlord breached Term 7 of the Agreement to Lease, which provided that the Landlord warranted that the HVAC, and electrical equipment will be in good working order on or before the occupancy date; (2) the Landlord breached Term 19 of the Agreement to Lease, which provided that the Landlord agrees to assist the Tenant to get a placement on the outdoor Billboard establishment without any charges; and (3) the Landlord breached Term 21 of the Agreement to Lease, which provided that the Tenant has the right to terminate if the Landlord failed within six months to get the approval of the Board of the Condominium Corporation for the Tenant to have the exclusive right “to operate Chinese Cuisines in the food court.”

[67] With respect to Terms 7 and 19, there is no evidence that the provisions were breached.

[68] With respect to Term 7, there is no evidence that the HVAC and the electrical equipment were not in good working order on before the occupancy date.

[69] With respect to Term 19, the Landlord’s obligation was only to provide assistance to the Tenant about obtaining a free placement on the billboard for the plaza and the provision did not stipulate what was to happen if the efforts to obtain a free placement failed, which is what occurred. The Landlord did all that it could for the Tenant and did not breach its obligation to assist.

[70] The situation, however, with respect to Term 21 is different. This term required the Landlord to assist in obtaining an exclusive rights provision from the Board of the Condominium Corporation and stipulated that if the exclusive rights provision for “a Chinese Cuisines in the food court” restaurant was not forthcoming, then the Tenant had a right to terminate the Agreement to Lease. My review of the evidence is that the Tenant waived the satisfaction of this provision by no later than the December 31, 2015 deadline but never wavered from insisting that the Landlord satisfy this promise.

[71] In March 2016, it became evident that during the term of the Lease, competitive Chinese cuisine restaurants were possible, and in my opinion, the Tenant was entitled to terminate the Lease on these grounds. It follows that the Landlord, but not the Tenant, breached the Agreement to Lease and, therefore, the Landlord’s counterclaim should be dismissed and the Tenant’s damages claim for breach of the Lease should be granted.

[72] With the granting of the claim in contract in which the Tenant will be made whole for the goods it purchased, it is not necessary to decide whether it has a redundant claim for conversion or for unjust enrichment.

H. CONCLUSION

[73] For the above reasons, I grant the Tenant a judgment against the Landlord for $69,897.78 plus pre-judgment interest from the date of the commencement of the action at the statutory rate. I dismiss the Plaintiffs’ action against the Defendants Pasofina Canada Corporation and Mr. Naseer without costs. I dismiss the Defendants’ counterclaim without costs.

[74] If the parties cannot agree about the costs of the breach of contract claim, they may make submissions in writing beginning with the Tenant’s submissions within 20 days from the release of these Reasons for Decision, followed by the Landlord’s submissions within a further 20 days.

Perell, J. Released: February 28, 2017