COURT FILE NO.: TBD
DATE: 20200511
SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
COURTNEY CAMPBELL, Applicant
– and –
1493951 ONTARIO INC. et al., Respondents
BEFORE: F.L. Myers J.
COUNSEL: Russell Bennett, for the Applicant
READ: May 11, 2020
ENDORSEMENT
[1] The applicant is a commercial subtenant who claims that her cannabis store has been shut down by her landlord. She seeks an urgent order for relief from forfeiture under ss. 19 to 22 of the Commercial Tenancies Act, RSO 1990, c L.7.
[2] The court is receiving numerous applications for relief from forfeiture of commercial tenancies during the current pandemic crisis. It is not always clear in such cases that the tenant is suffering from the effects of the pandemic or whether the tenant actually cannot pay its rent or, by contrast, whether a landlord may be using a tenant’s financial predicament as a convenient basis to remove an otherwise pesky tenant. There is always a factual story which drive the equities or the justice of the case.
[3] What is clear however, is that these cases are always urgent. Re-entry by the landlord shuts down a business on the sudden. Irreparable harm is rarely in issue where injunctive relief is sought along with relief from forfeiture.
[4] In virtually all of these cases that have been dealt with during this crisis, at the first case conference the parties have agreed upon interim terms to allow the tenant to resume occupation of the premises pending determination of the issues between the parties at a more opportune time.
[5] The court has been calling for extraordinary cooperation among counsel and parties alike since the release of the Notice to the Profession on March 15 2020. Nowhere is this more important than in the commercial landlord and tenant sphere. The stakes are extremely high for all. Tenants have been deprived of their revenue but, by not receiving rent, so too have landlords. Would that there were other paying tenants lined up to pay the landlord for its space. Absent regular market forces, it is difficult to understand how the landlord is harmed if it accrues the tenant’s rent obligation as a legal entitlement rather than having an empty unit. However, each case has its own facts.
[6] As RSJ’s delegate, I am satisfied that this application meets the urgency criterion in the Notice to the Profession. Justice Davies will hear a case conference this afternoon at 2:00 p.m. The Motions Coordinator will provide call-in details with the release of this endorsement.
[7] The court calls on counsel and the parties to recognize the need for and the high value placed on cooperation in Canadian society during this emergency period. Generally speaking, now is the time for understanding and empathy rather than strict enforcement of one’s legal rights just because an opportunity has presented itself.
[8] The parties are urged to speak this morning to try to agree on interim measures. The parties are also on notice that at the case conference today under Rule 50.13(6) of the Rules of Civil Procedure, RRO 1990, Reg. 194, and s.20 of the Commercial Tenancies Act, Justice Davies may make such interim order as is just on the facts of this particular case for the early, efficient, affordable, and proportionate resolution of this application.
[9] The terms set out in Schedule “A” apply to this application.
F.L. Myers J.
Date: May 11, 2020
COURT FILE NO: TBD
SCHEDULE “A” TERMS
An urgent case conference will be heard by Justice C. Davies today, May 11, 2020 at 2:00 p.m.
Service of motion materials in this contemplated proceeding may be made by email and shall be deemed effective on the date the email is sent or, if sent after 4:00 p.m., on the next day. No acknowledgement of receipt for email service is required for this motion.
All evidence, motion records, and factums shall be filed with the court by delivering them as attachments to an email to the other parties and the Motions Coordinator in searchable PDF format. No Books of Authority or statutory materials are to be sent to the other parties or the Motions Coordinator. References to case law or statutory material shall be made by hyperlinks contained in the parties’ factums or in a separate list of authorities.
The case conference and all motion hearings will be held by telephone conference on a line arranged by the Motions Coordinator. The parties and the presiding judge may use videoconference technology (whether Skype or Microsoft Teams or otherwise) as may be available to them all and acceptable to the presiding judge.
Upon the courthouse reopening to the public, each party shall file with the Civil Motions Office a copy of all the material he, she, or it delivered electronically for this proceeding, with proof of service, and pay the appropriate fees therefor.
This endorsement is effective when signed. No formal order is required.
All parties are given notice that:
a. The presiding judge may convene one or more case conferences and make all orders as he deems appropriate under Rule 50.13(6) to ensure the efficient hearing of the urgent motion that is the subject of this endorsement;
b. Notwithstanding Rule 59.05, orders and judgments made in this proceeding are effective from the date they are made, and are enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal judgments or orders need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party may nonetheless submit a formal judgment or order for original signing, entry and filing when the Court returns to regular operations;
c. All of the provisions of this order may be varied by the presiding judge on such terms and he or she deems just; and
d. The hearing may be recorded for the court’s purposes.
Date: May 11, 2020