Court File and Parties
COURT FILE NO.: CV-18-593728 DATE: 201901 15 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
McRae Cold Storage Inc. Applicant – and – Nova Cold Logistics ULC Respondent
COUNSEL: Ronald Birken and Monica Peters, for the Applicant Emily Sherkey, for the Respondent
HEARD: August 14, 2018
Additional Reasons for Judgment
NISHIKAWA J.
[1] On December 13, 2018, I rendered judgment in favour of the Respondent, Nova Cold Logistics ULC (“Nova”) and remained seized to determine the amount of damages owed by the Applicant, McRae Cold Storage Inc. (“McRae”) on a commercial lease: McRae Cold Logistics Inc. v. Nova Cold Storage ULC, 2018 ONSC 7494 (the “Judgment”). In my decision, I found that McRae owed energy surcharges and other amounts under the Lease, and was not entitled to renew the Lease because it was in default. I requested further submissions in order to be able to determine the outstanding amounts.
[2] On December 22, 2018, I issued an Addendum to the Judgment ordering that $136,000 that was being held in trust by McRae’s counsel, Garfinkle Biderman LLP, (the “Funds”) be returned and continue to be held in trust until the conclusion of this proceeding or until further order of this court: McRae Cold Logistics Inc. v. Nova Cold Storage ULC, 2018 ONSC 7697.
[3] In the meantime, McRae brought an appeal of my decision on the issues of its entitlement to renew the lease and relief from forfeiture. McRae is not appealing my findings regarding the manner in which the energy surcharges are calculated. McRae has brought a motion to stay the Judgment pending the outcome of the appeal and for an order permitting it to return to the premises, which it vacated on December 31, 2018.
[4] Counsel for the parties have now provided a joint submission in writing on the total amounts that McRae owes under the Lease. The amounts owing for energy surcharges, interest and costs (a, b, c and d below) are undisputed. While McRae does not dispute the amount of holdover rent below, no holdover rent will be owed if its appeal is successful.
(a) Energy surcharge amounts and interest to June 18, 2018 = $149,778.78 (b) Energy surcharge amounts and interest from June 18, 2018 to November 30, 2018 = $6,915.62 (c) Additional interest charges from June 18, 2018 to December 31, 2018 = $11,409.70 (d) Costs = $16,000.00 (e) Holdover rent for nine months to December 31, 2018 = $212,199.09
Total amount owing = $396,303.19
[5] There will be an additional amount for the energy surcharge for December 2018, which has not yet been calculated.
[6] Based on my findings, McRae owes Nova the total amount of $396,303.19 for the energy surcharges, interest and holdover rent. At this time, the undisputed amount owed is $168,104.10 (a + b + c + d). Nova’s entitlement to the remaining amount for holdover rent will depend on the outcome of McRae’s appeal. I note that there is a possibility that additional holdover rent will be owing if McRae’s motion to return to the premises is successful but its appeal is ultimately unsuccessful.
[7] As the amount of $168,104.10 is undisputed, the Funds held in trust by Garfinkle Biderman LLP may be released and paid toward this amount.
Nishikawa J.