Court File and Parties
Court File No.: CV-20-635391 Date: 20200319 Superior Court of Justice - Ontario
Re: Eva Oppong, Applicant And: Desaro Holdings Inc., Respondent
Before: Kimmel J.
Counsel: Reshma Kishnani, for the Applicant (reshma.kishnani@millsandmills.ca) Karanpaul Randhawa, for the Respondent (kp.randhawa@me.com)
Heard: March 18, 2020, by teleconference
Endorsement
[1] The applicant is a commercial tenant seeking relief from forfeiture and the return of her leased premises that she was locked out of in January 2020. This application came before me today as an urgent matter that was approved for hearing by endorsement of Myers J. dated March 18, 2020 under the Notice to the Profession released by the Chief Justice of the Superior Court of Justice dated March 15, 2020.
[2] The respondent requested an adjournment today, which I have reluctantly granted to March 27, 2020 on terms outlined at the end of this endorsement and for the reasons indicated herein.
The Respondent’s Adjournment Request(s)
Prior Adjournments and Timetabling
[3] This is the third request for an adjournment made by the respondent. The applicant is understandably frustrated.
[4] The application was served on January 30, 2020 and, following an attendance at Civil Practice Court on January 31, 2020, was scheduled to return on February 7, 2020. The respondent retained counsel who appeared on February 7, 2020 and requested an adjournment, at which time a timetable was agreed to and the application was adjourned to February 27, 2020.
[5] The applicant could not adhere to the timetable. Its responding affidavits were delivered just prior to the second appearance, causing it to ask for a further adjournment. Counsel for the respondent advises the court that this was due to the death of a family member of one of the deponents of the responding affidavits. The application was adjourned at that time to today (March 19, 2020), which was the first available date, and a new timetable was set. The applicant contests the respondent’s suggestion that she was ever agreeable to hearing dates offered in May of 2020.
[6] The applicant adhered to the new timetable, but the respondent was again unable to. Counsel for the respondent advises the court that this was due to the illness and hospitalization of one of the deponents of the responding affidavits. This delayed the cross-examinations of the deponents of the responding affidavits until Monday of this week (March 16, 2020).
[7] The respondent raised three primary grounds for the adjournment request: i) unavailability of certain materials; ii) practical considerations arising from the coronavirus pandemic; and iii) the absence of the third party in possession of the premises.
i) Availability of Materials
[8] One of the grounds for the requested adjournment today is the unavailability of the transcripts from the March 16, 2020 cross-examinations and outstanding undertakings given that the respondent has yet to answer. Applicant’s counsel advises that she asked for the transcripts to be expedited but they have not been received, likely due to the intervening events and extraordinary measures that have occurred over the past week due to the coronavirus pandemic. The applicant was prepared to proceed today on the basis of the summaries of the evidence from the cross-examinations of the respondent’s deponents that both counsel have included in the filed factums, and on the basis that the unanswered undertakings be treated as refusals.
[9] This ground on its own would not have been justification for an adjournment, but since a brief adjournment is being granted, I have addressed the absence of these materials in the terms of the adjournment outlined at the end of these reasons.
ii) Practical Considerations Due to Coronavirus Pandemic
[10] Counsel for the respondent raised as another ground for the requested adjournment that, due to the outbreak of the coronavirus, the municipal or provincial governments may soon issue directives that only essential services remain open. The applicant’s business is a hair salon, as is (or was, according to the applicant) at least part of the business of the new tenant in possession of the subject premises. I note that the new lease specifies the use to be for software development and music related activities.
[11] This may have implications for the future ability of the applicant to carry on business from the premises, even if the requested relief from forfeiture is granted and quiet possession and enjoyment of the premises is returned to her. Counsel for the applicant advised the court that the applicant has turned her mind to this but still, at this time, wishes to proceed.
[12] This is an important practical consideration but does not create an impediment to the relief that the applicant seeks at this time.
iii) Third Party in Possession of the Subject Premises
[13] The final and most compelling ground for the requested adjournment is that there is nothing before the court to indicate that the current tenant said to be in possession of the subject premises (2248506 Ontario Inc.) is on notice of these proceedings and the relief sought, which could have the effect of requiring that new tenant to vacate the premises.
[14] Each party argues that it was the responsibility of the other to put the new tenant on notice. I do not need to lay blame at this point, but I would find it surprising to hear that the landlord has kept the new tenant completely in the dark about these proceedings since learning of them at the end of January. Since the applicant learned of the identify of the new tenant from the responding material, it was also open to her to put the new tenant on notice as a potentially affected party. Neither the applicant nor the respondent have joined the new tenant in possession as a necessary party under Rule 5.03 of the Rules of Civil Procedure.
[15] In support of her supposition that it is unlikely that the new tenant is unaware of these proceedings, counsel for the applicant points out that Sean Hall, who is apparently the shareholder of the new tenant and who signed one of the versions of the new commercial lease tendered by the landlord in its responding materials, lives above the premises and is the purported witness to the applicant’s signature on a lease amending agreement that the landlord relies heavily upon in opposition to this application and as the justification for the termination of the applicant’s lease.
[16] The applicant contends that the new tenant in possession has conspired with the landlord to in essence create and back-date this lease amending agreement, which the landlord produced in its responding materials and which the applicant says she did not sign and had not previously seen. From that, the applicant asks the court to infer that the new tenant is aware of these proceedings. I am not at this time prepared to draw that inference, without at least giving the new tenant in possession an opportunity to put its position before the court.
[17] In my view, before deciding this application on its merits, which the applicant is still asking the court to do, the court should at a minimum be satisfied that the new tenant in possession is aware of the proceeding and given an opportunity to come forward with any further evidence or submissions that it wishes the court to be made aware of. All parties are encouraged to consider and provide the court before the next appearance with any relevant authorities on the subject of the relevant considerations for the court in making an order affecting a commercial tenant in possession of premises.
[18] I am not at this time requiring the new tenant in possession to be joined as a party. It is ultimately open to the court to relieve against the requirement of joinder under Rule 5.03(6) of the Rules of Civil Procedure if it is determined to be an appropriate or necessary party. I will wait to see what the response is to the notice and opportunities that I have afforded to the new tenant in possession as part of the terms of this adjournment indicated below before making any ruling about this. The parties are encouraged to address any considerations regarding this in their written submissions to be filed in advance of the next hearing date.
iv) Potential Further Evidence About the Contentious Lease Amending Agreement
[19] There is an additional consideration, related to the last one, that has influenced my decision to briefly adjourn this application.
[20] There is reason to believe that the shareholder of the new tenant in possession may have relevant information about the matters in dispute as between the applicant and respondent. In response to my request, both counsel confirmed that the adjudication of this application on its merits will require the court to make findings about the validity and effect of the lease amending agreement that the landlord says the applicant signed in 2018, and that the applicant claims she did not sign and saw for the first time in the landlord’s responding material on this application.
[21] Sean Hall, the shareholder of the new tenant in possession, purportedly witnessed the signatures of both the landlord and the tenant on the version of that document that the respondent has filed with the court. Furthermore, one of the outstanding undertakings from the cross-examinations of the deponents of the responding affidavits is to produce the original of that document.
Terms of the Adjournment Requested by the Respondent
[22] The adjournment requested by the respondent is granted, to March 27, 2020 (to a hearing to be convened by teleconference) on the following terms:
a. This adjournment is peremptory to the respondent;
b. The respondent landlord, or its agent/property manager, shall deliver by email to the shareholder of the tenant in possession 2248506 Ontario Inc., Sean Hall, a copy of this endorsement and all of the materials that were filed for the hearing of this application today with a copy also to be delivered by email (if an email address is available) to the director of that tenant company, Roger Blair, and shall request a read receipt or other confirmation of receipt of these materials and provide proof of such to counsel for the applicant;
c. If no read or other confirmation of receipt is received by the landlord from the new tenant (from at least one of either Mr. Hall or Mr. Blair) then the landlord/its property manager shall deliver a hard copy of these materials to the subject premises by no later than noon on Friday March 20, 2020, and provide proof of such to counsel for the applicant;
d. If the tenant in possession, 2248506 Ontario Inc., wishes to add anything to the evidentiary record currently before the court on this application, it may do so on or before 6 pm on Monday March 23, 2020 by delivering its affidavit(s) and exhibits by email to counsel for the parties;
e. If the tenant in possession, 2248506 Ontario Inc., does deliver any material on Monday March 23, 2020, its deponents shall make themselves available to be cross-examined by video conference or telephonically (whichever can be arranged) on Tuesday March 24, 2020 upon the request of either party, the arrangements for which are to be made by counsel for the requesting party and the requesting party shall arrange for expedited (one-day) transcripts of any such cross-examination;
f. The applicant will follow-up to arrange for the production of the transcript of the cross-examinations of the deponents of the responding affidavits that took place on Monday March 16, 2020 and will provide a copy of such to respondent’s counsel as soon as it is available;
g. If the respondent intends to answer the outstanding undertakings from the March 16, 2020 cross-examinations, those are to be delivered to the applicant’s counsel by no later than 6 pm on Monday March 23, 2020, failing which those requests will be treated as refusals;
h. Counsel for the respondent shall be responsible for ensuring that any new materials exchanged between the parties that are not in existence today are delivered to the tenant in possession in the manner provided for in sub-paragraphs b) and c) above, or its counsel if any counsel identifies him/herself to be representing that tenant, as soon as possible after those materials are delivered by one or the other party;
i. I am directing that all materials may be served by email on counsel for the parties with effect on the date the email is sent, or if sent after 6 pm, on the next day; other than as provided for in sub-paragraphs b) and c) above, no acknowledgment of receipt for email service is required but if the sender receives a notice of undeliverability, they are responsible for separating out the attachments or configuring them so that they can be delivered and received;
j. All parties and participants, including the tenant in possession, 2248506 Ontario Inc. if so advised, shall file with the court by no later than 2 pm on Thursday March 26, 2020 a complete set of all of their material (including transcripts of cross-examinations of other parties) to be used for the March 27, 2020 hearing (even if previously filed, for the convenience of the court I am asking them to be filed all at one time, together), together with, in the case of the applicant and the respondent, a new factum, or in the case of 2248506 Ontario Inc. a factum or statement of its position if so advised;
k. These materials may be filed electronically following the directions in the Notice to the Profession dated March 15, 2020 (as may be updated or amended from time to time), and sent to: CivilUrgentMatters-SCJ-Toronto@ontario.ca with a copy to Michelle.chen@ontario.ca;
l. If the tenant in possession retains counsel and that counsel wishes to file an appearance, he/she may do so electronically by filing it at the above email addresses;
m. Counsel for the applicant shall file by email in the normal course the requisite confirmation form by 2 pm on Wednesday March 25, 2020; and
n. If there is an urgent need for counsel to speak to me before the next scheduled hearing date of March 27, 2020 a request for such with brief reasons shall be submitted to: CivilUrgentMatters-SCJ-Toronto@ontario.ca with a copy to Michelle.chen@ontario.ca.
Costs and Implementation
[23] Costs of today (and prior attendances) are reserved to the extent not previously dealt with.
[24] The notice regarding the conduct of the hearing contained in the March 18, 2020 endorsement of Myers J. continues to apply to any future hearings in this matter.
[25] This endorsement is effective when made. No formal order is required.
Kimmel J. Date: March 19, 2020