Court File and Parties

COURT FILE NO.: 20-82580 DATE: 2020-01-24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ADD-VANCE SERVICE CENTRE LTD and ABDALRAHMAN ALHAZMY, Plaintiffs AND TRILOQ CORP. and EDGAR BRAY, Defendants

BEFORE: Madam Justice Heather J. Williams

COUNSEL: Gib van Ert for the Plaintiffs Richard Bowles for the Defendants

HEARD: January 23, 2020

Endorsement

[1] This was a motion, brought on an urgent basis, by a commercial tenant, an automobile repair business, which was locked out of its business premises by its landlord on December 16, 2019.

[2] There are many facts in dispute.

[3] Paragraph 19 of the parties’ lease is somewhat open to interpretation but what is clear is that the landlord must give the tenant 30 days’ notice before the landlord may terminate the lease and re-enter the premises.

[4] The landlord argued that a spreadsheet marked as Exhibit C to the affidavit of Edgar Bray had been given to the tenant on numerous occasions and that this spreadsheet served as notice to the tenant that money had been owing for a considerable period of time and that the tenant was in default under the lease.

[5] Whether the tenant ever received Exhibit C appears to be in dispute but accepting for the purpose of this motion only that it was, Exhibit C cannot be considered to have been “notice” for purposes of paragraph 19 of the lease. The notice required by paragraph 19 is a 30-day warning that the lease may be terminated. The tenant in this case received no such warning.

[6] A landlord who re-enters premises before the expiration of a notice period prescribed by a lease does so unlawfully and wrongfully terminates the lease. (Buck or Two Properties Inc. v. 1281632 Ontario Limited, 2007 CanLII 54077 at para. 9, as cited in 911 Priority Corporation v. Murray, 2019 ONSC at para. 35.) The same is true of a landlord who provides no notice at all when required by a lease to do so.

[7] I find that the landlord had no right to terminate the tenant’s lease and to re-enter the premises on December 16, 2019.

[8] Having made this finding, there is no need for me to consider the tenant’s request for relief against re-entry or forfeiture under s. 20(1) of the Commercial Tenancies Act, R.S.O. 1990, c. L. 7.

[9] The tenant’s motion is granted.

[10] I shall make the first five orders requested by the tenant in the notice of motion except that order # 3 shall read only: “Mr. Bray shall immediately return to Mr. Alhazmy all items he took from the tenant’s premises.”

Costs

[11] The parties filed costs outlines.

[12] I encourage the parties to negotiate an agreement with respect to the costs of the motion.

[13] If they are unable to do so, and they wish to file written submissions to supplement their costs outlines,

a. The tenant may deliver written submissions of no more than two pages within seven days of the date of this decision;

b. The landlord may deliver written submissions in response of no more than two pages in length within seven days of the date of receipt of the tenant’s submissions;

c. The tenant may deliver any reply submissions of no more than two pages in length within seven days of the date of receipt of the landlord’s submissions.

d. These submissions may be filed by sending them to me, care of the trial coordinator.

e. If the parties agree that they are content to rely on their costs outlines, without supplementary written submissions, they should inform me of this agreement by sending an email to the trial coordinator.

Madam Justice H.J. Williams

Date: January 24, 2020

COURT FILE NO.: 20-82580 DATE: 2020-01-24

ONTARIO SUPERIOR COURT OF JUSTICE

RE: ADD-VANCE SERVICE CENTRE LTD and ABDALRAHMAN ALHAZMY, Plaintiffs AND TRILOQ CORP. and EDGAR BRAY, Defendants

BEFORE: Madam Justice H.J. Williams

COUNSEL: Gib van Ert for the Plaintiffs Richard Bowles for the Defendants

ENDORSEMENT

Madam Justice H.J. Williams

Released: January 24, 2020