Superior Court of Justice - Ontario

Citation: 2017 ONSC 7541

Court File No.: 17-73729

Date: 2017/12/15

Re: Ernest G. Tannis Professional Corporation, Applicant

And:

Clyde Corners Inc., Respondent

Before: Mr. Justice Calum MacLeod

Counsel: Leonard Max, Q.C. for the Applicant Alden Christian, for the Respondent

Heard: December 15, 2017

Endorsement

[1] This is an application that purports to be brought under s. 66 and 67 of the Commercial Tenancies Act, RSO 1990, c. L7, as amended. Those sections of the Act have to do with distraint or threatened distraint and are not applicable to the circumstances of this case.

[2] There are other sections of the Act dealing with eviction or threatened eviction and with overholding tenants. All provide forms of urgent and summary relief but none of them apply today as none of these circumstances have yet occurred.

[3] The issue is the proper interpretation of the lease and specifically how much is owing for additional rent. There has been a demand and a threatened eviction. There may or may not also be a claim for an abatement. All of these issues are clearly justiciable and they would be the proper subject matter of an application under Rule 14.

[4] S. 100 of the Courts of Justice Act, Rule 2 and other provisions exist to avoid technical irregularities from precluding adjudication on the merits. In addition Rule 37 permits motions to be brought in advance of an action or application in appropriate circumstances.

[5] Little purpose is served in refusing to deal with this matter and requiring the parties to bring the matter back before the court in a different form and perhaps in the face of precipitous action by one or other of the parties.

[6] Clearly the tenant is entitled to know the precise calculation of additional rent and the tenant is clearly entitled to an architect’s certificate showing the percentage of the total space occupied by the tenant for purpose of calculating the proportionate share. The tenant is also entitled to a process to challenge the amounts and the calculations if they appear to be significantly in error.

[7] On the other hand, it is not reasonable to permit the tenant to continue in occupation without paying a reasonable pre-estimate for the additional rent. Because no rent was paid or demanded during all of 2016 however, I also do not consider it fair to require the tenant to immediately pay two years of arrears in a lump sum pending resolution of this matter.

[8] The estimated budget for 2016 as set out in the materials was $261,805. The amount allegedly requested for additional rent in January of 2016 was $513.20.

[9] Pending resolution of this matter, the court therefore orders and directs as follows:

a. Providing the tenant continues to pay the base rent and the amount on account of additional rent set out in this order and is otherwise in compliance with its obligations under the lease, the tenant is not to be evicted pending further order or agreement.

b. The tenant is to commence paying $400.00 per month towards additional rent on January 1st, 2018. The tenant is also to pay $400.00 per month towards arrears of additional rent commencing January 1st, 2018.

c. Within 60 days of this order, the landlord shall deliver an architect’s certificate showing the total rentable space in the “shopping centre” and the certified proportion of the space occupied by the tenant.

d. Within the said 60 days the landlord shall also provide the actual figures for calculating additional rent for the premises for 2016, the budget for calculating additional rent for 2017 and as soon as possible thereafter the actual figures for 2017.

e. This application shall be converted to an application under Rule 14 and if the matter is not resolved between the parties by April 1st, 2018 the applicant shall deliver an amended application record and the tenant may deliver an amended respondent’s record.

f. The court may give further direction as required. If the parties wish they may seek to have the amounts owing under the lease determined by a reference to the master.

g. Costs of today are reserved to the applications judge or to the master as may be appropriate.

Mr. Justice Calum MacLeod

Date: December 15, 2017

2017 ONSC 7541

COURT FILE NO.: 17-73729

DATE: 2017/12/15

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Ernest G. Tannis Professional Corporation, Applicant

AND:

Clyde Corners Inc., Respondent

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: Leonard Max, for the Applicant

Alden Christian, for the Respondent

endorsement

Mr. Justice Calum MacLeod

Released: December 15, 2017