COURT FILE NO.: CV-22-89377
DATE: 2023/06/06
SUPERIOR COURT OF JUSTICE – ONTARIO
Proceeding under the Commercial Tenancies Act, R.S.O. 1990, CHAPTER L.7 as amended
RE: J.R. LAWN MAINTENANCE & SNOW REMOVAL INC., Applicant
AND:
CZESLAW PASZKIEWICZ AND GABRYJELA PASZKIEWICZ, ALSO KNOWN AS GABRIELA PASZKIEWICZ, Respondents
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Jason Rabin, for the Applicants
Aweis Osman & Todd Burke, for the Respondents
HEARD: April 3, 2023
DECISION AND REASONS
Introduction
[1] This matter first came before me in June of 2022 as an emergency motion.[^1] At that time a rent dispute had arisen, and the Applicant (the tenant) was withholding rent. The Respondents (the landlord) threatened to repossess the demised premises in what the parties quickly recognized was a commercial “lose-lose” proposition.
[2] The parties agreed, on an interim basis, the tenant would put the rent into good standing, the tenant would remain in occupation, rent would be paid as it fell due, and the dispute over the correct amount of rent would be adjudicated. This is what occurred. The application was fully argued on April 3, 2023.
[3] The relief sought by the tenant is a declaration that the tenant has been overcharged for the “base rent” and an order that the landlord pay a rebate of at least $450,000.00. That relief is set out in paragraphs 1 (f) and (g) of the Amended Notice of Application. The Respondents ask that the application be dismissed. Both parties seek their costs.
[4] The question is relatively simple. Has the tenant been overcharged? The tenant can only succeed if the tenancy agreement ties the rent to an external standard that allows for rent adjustment. If there is no basis to adjust the amount the parties bargained for then, regardless of whether or not it is above “market rate” and whether it was a good or bad deal for the tenant, there is no legal basis for a rent abatement.
[5] Despite certain ambiguities and contradictions in the two written leases that partially define the tenancy, there is nothing in the current lease which ties the rent to a mathematical calculation based on square feet. Nor is there any evidence that the area of the property under lease was miscalculated. The sole issue is whether the tenant can demand a retroactive rent adjustment because the rent the landlord is charging may be more than the market rate for similar properties.
[6] For the reasons that follow, despite certain ambiguities in the lease documents, the question must be answered in the negative. As I will discuss, there is no plea of misrepresentation or fraud. The only issue is the interpretation of the contract. The amount of the rent was freely negotiated. The tenant always knew what the landlord proposed to charge for base rent. The tenant paid what was asked and renegotiated the rent as it increased the amount of the property it was leasing.
[7] It is only when the tenant was conducting an appraisal of the property in support of a proposed purchase, that the tenant came to believe that it was paying an amount that was exorbitantly over market. Neither party at any time purported to trigger or exercise any of the rent adjustment clauses set out in the leases.
Background
[8] The tenant corporation operates a snow removal and property maintenance business from premises owned by the respondent landlord at 1555 Michael Street in the City of Ottawa. The property in question is a commercial building (formerly a residence), maintenance bays, warehouse space and outdoor parking and storage areas. The property is zoned for light industrial use.
[9] The tenant has been in occupation of part of the premises since 2015 and has gradually expanded its footprint. As of mid 2021, the tenant became the sole tenant and is now in occupation of the entire property.
[10] When the tenant first entered into a lease in 2015, the owner of the tenant corporation had been in business since 1997. Firstly, through a sole proprietorship and after 2010 through the applicant corporation. By 2015 the tenant had approximately 30 employees and over 1500 customers. As the evidence discloses, the tenant’s main objective was to find a place to store and work on equipment. At the time, he was storing equipment at his home and needed to find space. The office space was secondary to the need for equipment storage and maintenance.
[11] An initial one-year lease was signed in July of 2015 (the original lease). The lease was a “net lease” under which the tenant was to pay “base rent” plus “additional rent”. The latter was the amount necessary to reimburse the landlord for utilities and property tax. The base rent at that time was set at $2,900.00 per month and the total rent including base rent, additional rent and HST was $4,508.70 per month.
[12] Over the intervening years, the amount of space occupied by the tenant and the amount to be paid for rent was increased on several occasions. Each time there was such a negotiation, the tenant asked for more space, the landlord proposed a new rent, and the tenant agreed. Until 2018, none of those changes was memorialized in a new lease. In 2018 the parties signed a new lease (the current lease) which is by and large identical to the original lease except that the demised space and the rent are different and the 2018 lease is a three-year lease.
[13] Both the original lease and the current lease have expired although the parties agree that the terms of the current lease continue to govern their relationship. The problem with the lease documents is that they contain ambiguities and contradictions. The lease documents are also problematic because they were not amended and so neither the original lease nor the current lease accurately describe the demised premises or the rent to which the parties had agreed.
[14] It is the evidence of the landlord that he prepared the lease using a precedent he obtained from a lawyer. Despite the fact that both parties had access to lawyers, it appears that neither party consulted a lawyer and no lawyer was involved in drafting the final document. In various places, the original lease is described as a “commercial lease” or as a “single tenant office lease”. In paragraph 1.1 (h) of the lease under “Permitted Use” it states, “Storage and Maintenance of Equipment, with limited office space”. The latter is consistent with the tenant’s evidence as to the purpose of the original lease.
[15] Both the original lease and the current lease contain paragraph 1.1 entitled “Basic Terms”. This is a summary of the terms the parties had agreed to. For example, the basic terms set out the name of the landlord, the tenant, the indemnifier, the term of the lease, the demised premises, the base rent, the permitted use, and certain other terms including extension rights. Although the paragraph referring to “premises” refers to an attached sketch, there is no sketch attached to the original lease (at least to the copy tendered in evidence) and the sketch attached to the current lease appears to the be a sketch describing the portion of the land rented by the tenant under the original lease.[^2]
[16] Of particular importance, is the language describing the demised premises in paragraph 1.1. In the original lease, the following appears:
“Rentable Area of Premises: The rentable area as illustrated in Schedule A, consisting of a Warehouse with Three Bays (Bay # 3, 4 and 5 as identified on property signage) with total area of approx. 2080 sq-ft, Lower Office (as shown in Schedule A) with approx. area of 350 sq-ft, and adjacent parking area with total area of approx. 1120 sq-ft totaling approx. 3550 sq-ft of rentable area, subject to Section 2.2”
[17] This appears to accurately describe the areas of the parking lot, warehouse and office leased by the tenant when the lease was signed in July of 2015. It is the tenant’s evidence that he did not conduct any appraisal or valuation of the property at the time he entered into the original lease. The parties did not calculate the rent on the basis of the number of square feet. In the tenant’s own words, “I went there and looked at what, let’s call it, the other side was going to give me and the price, mulled it over in my head and said, hey that seems fair, and went for it”.
[18] As mentioned above, the tenant took over additional parking space and additional building space in 2016 and again in 2018.
[19] In the current lease, the same paragraph of the “Basic Terms” section of the lease reads as follows:
“Rentable Area of Premises: The rentable area as illustrated in Schedule A, consisting of a Warehouse with Three Bays (Bay # 3, 4, 5 and 6 as identified on property signage) with total area of approx. 3530 sq-ft, 2 story Office (as shown in Schedule A) with approx. area of 1350 sq-ft, and adjacent parking area with total area of approx. 9500 sq-ft totaling approx. 11687 sq-ft of rentable area, subject to Section 2.2”
[20] In paragraph 1.1 (g) of the original lease, under the heading “Basic Rent”, the tenant agrees to pay $2,900 plus HST per month or $34,800 plus HST per year for the period July 15, 2015 to July 15, 2016. In the current lease, paragraph 1.1 (g) states that the Basic Rent would be $10,970 plus HST per month or $131,640 per year. Paragraph 1.1 (g) appears to accurately set out what the parties had agreed to for basic rent in each of 2015 and 2018. It can be seen from a comparison of the two leases that between 2015 and 2018 the tenant had increased the amount of space he occupied and the landlord had increased the rent.
[21] The annual base rent had gone from $34,800 plus HST in 2015 to $131,640 plus HST in 2018. There is no evidence that the tenant considered this to be unreasonable at the time. The tenant’s business had also expanded. Over the three years following the execution of the 2018 lease, the tenant took on additional space including a large and small wash bay, a paint booth, a small garage, a lower unit office and an office fronting Michael Street.
[22] By mid 2021, the tenant took over all of the remaining space at the property. By that time, the tenant had between 4,000 and 5,000 customers and approximately 75 employees. He had also bought out or purchased other snow removal companies. The expanded footprint on the property was consistent with the increased scale of the tenant’s operations and the continued expansion of his business.
[23] On July 15, 2021, the landlord raised the rent. According to the tenant, he reluctantly agreed to pay the new rent but “started to question whether I was being treated fairly”.
[24] There has never been any dispute concerning “additional rent”. The application relates solely to the base rent or basic rent. The following chart sets out the amount of the property that was rented and the amount of the base rent.
| Year | Area Leased – sq. ft. | Annual Base Rent |
|---|---|---|
| 2015 | 2,430 Building Space; 1,120 Parking Space | $34,800 + HST |
| 2016 | 3,102 Building Space; 9,257 Parking Space | $70,140 + HST |
| 2018 | 4,880 Building Space; 9,500 Parking Space | $131,640 + HST |
| 2021 | 7,817 Building Space; 9,500 Parking Space | $197,640 + HST |
| 2022 | 7,817 Building Space; 9,500 Parking Space | $212,040 + HST |
[25] All of these rental rates were negotiated between the tenant and the landlord as the tenant gradually took on more of the space. According to the tenant’s own evidence, the parties did not sign documents or formally amend the lease. The landlord simply quoted a new rent and the tenant orally agreed. In the tenant’s own words, “we paid what he asked without question”. At no time until the events giving rise to this court application is there any evidence that the tenant objected to the rent, considered it unfair or attempted to exercise any formal right to renegotiate, arbitrate or mediate the rent.
[26] In 2021 the tenant decided to purchase the property. The parties entered into an Agreement of Purchase and Sale on October 22, 2021. Under that agreement, the tenant was to pay $3.6 million to acquire the property. The transaction was to have closed on January 3, 2022. The agreement was conditional upon financing and apparently the purchaser was unable or unwilling to waive the condition. Probably the latter because the tenant’s appraisal of value apparently came back at $1.99 million. Regardless of the reason, the transaction did not close, and the tenancy has continued.[^3] It is common ground that the parties did not negotiate a lease extension to the current lease and the tenancy is now a month-to-month tenancy on the same terms as the lease.
[27] Before turning to my analysis of the lease document, the various agreements and the law, I should point out that there was a Schedule to the original lease entitled “Extension Right”. The original lease was a one-year lease. The schedule provided the tenant with the right to renew the lease for a further five-year term at “then fair market rents” on six months written notice. It further provided that if the parties could not agree on “fair market Base Rent”, the “parties shall hire an arbitrator to determine the amount of the base rent”.
[28] There is no doubt that this extension right provided the tenant with the unilateral right to renew the original lease at “fair market Base Rent” and a right to arbitration. The tenant did not exercise that right or trigger the extension right. There was no new five-year lease and there was certainly no rent arbitration. It appears that the tenancy was simply continued with occasional adjustments to the amount of property leased by the tenant and to the base rent the tenant agreed to pay.
[29] The current lease did not contain the same schedule or a specific extension right at “fair market” rent. The parties agree that there was a right to extend the lease to five years, but they also agree that the tenant did not exercise that right.[^4]
[30] There is a rent adjustment clause in the lease which refers to the rentable area. It is contained in paragraph 2.2 of both leases. It reads as follows:
2.2 Measurement
The Landlord may arrange for the Rentable Area of the Premises to be measured by its architect, surveyor or other space measurer and, if the area measured is different than that set out in Section 1.1(e), the Rent will be adjusted in accordance with the measured area. The Landlord will advise the Tenant in writing of the area measurement. If the Landlord does not arrange for such measurement, the Rentable Area of the Premises shall be deemed to be the area set out in Section 1.1(e).
[31] The problem with this provision is that it appears to be a clause that can be triggered only by the landlord. Otherwise, the “rentable area” is the “area set out in Section 1.1 (e)”. Neither party has ever asked for a measurement of the rentable area and there is no dispute about what property was being rented at different times. The question is not the area of the demised premises but whether the rent as proposed, agreed to and paid was too high and can now be adjusted.
[32] One basis for the tenant’s argument that it should not be charged the same rate for parking space as for office space can be found in an ambiguity in the lease. This ambiguity exists because in what seems to be the preprinted section of the template agreement, there is a second definition of “rentable area of the premises”. This is found after the “Basic Terms” section of the lease in paragraph 1.1. The “Definitions” section of the lease is paragraph 1.2. Subparagraph 1.2 (o) reads as follows:
(o) "Rentable Area of the Premises" means the area of the building forming part of the Premises measured to the outside surface of the outer building wall and, for greater certainty, excludes storage areas and parking areas, and as may be adjusted from time to time to reflect any alteration, expansion, reduction, recalculation or other change, determined in accordance with the Building Owners and Managers Association ("BOMA") standard method of measurement then in effect from time to time;
[33] This definition stands in apparent contradiction to the definition of “rentable area of the premises” in para. 1.1 (e) of the lease. The earlier, more specific definition sets out three areas that constitute the demised premises: the warehouse bays, the office, and the adjacent parking areas. This is consistent with the “permitted use” provision stating that the use of the premises by the tenant will be for “storage and maintenance of equipment with limited office space”.
[34] Finally, there is the following provision in paragraph 4.1 of both leases
4.1 Basic Rent
The Tenant covenants and agrees to pay, from and after the Commencement Date, to the Landlord at the office of the Landlord, or to such other person or at such other location as the Landlord shall direct by notice in writing, in lawful money of Canada, without any prior demand therefor and without any deduction, abatement or set-off whatsoever, as annual Basic Rent, the sum(s) set out in Section 1.1(g) of this Lease in equal monthly installments in advance in the amount(s) set out in Section 1.1(g), on the first day of each and every month during the Term.
The Landlord and tenant agree to revisit the Basic Rent each year to be paid to the Landlord. For clarity, on or before August 1 of each year of the Term, the Landlord shall propose a Basic Rent for the ensuing year beginning on August 5. The Tenant shall have until August 6th of the current year end to agree to said Basic Rent or provide an alternative Basic Rent amount. If the Tenant does not reply by said date, the Landlord shall begin collecting the Basic Rent amount beginning August 15th of that year. Should the landlord and Tenant not agree to a new Basic Rent, the matter shall be referred to an independent third-party mediator chosen by both parties to decide on a Basic Rent for the ensuing year that is consistent with industry standards.
[35] Once again, there is no evidence that this provision of the lease was ever activated or relied upon. The basic rent was renegotiated perhaps not annually but at regular intervals when the tenant advised the landlord that it needed more space. On each of those occasions, the landlord quoted the tenant a new basic rental rate and the tenant agreed. It was the tenant’s evidence that the landlord proposed a new rent and the tenant agreed.
[36] The question is whether the references to “industry standards”, “BOMA standards of measurement” and “then fair market rents” in clauses or rights that were never exercised, suggest an overall intention that the base rent be fair market rent or calculated according to industry standards. Should this implicit reference to market rates permit the tenant to demand a recalculation of the rent and a rebate?
Analysis & Discussion
The Law of Contract
[37] A contract is a legally enforceable agreement between two or more parties. Some, but not all, contracts must be “evidenced in writing” under Ontario law. One such requirement is a lease of more than three years.[^5] It is usual, however, for leases to be written even if they are for shorter terms and it is usual for lease agreements to contain relatively complex language dealing with various eventualities.
[38] The purpose of a written contract is supposed to be certainty. It is intended to show that there is a legally binding agreement and to define the obligations of the parties with precision. In fact, however, all that is necessary to make a lease enforceable is a clear definition of the parties, the demised premises, the term of the lease and the rent to be paid.
[39] As will be seen from the history of this matter recited above, there was a one-year lease in writing in 2015 and a three-year lease in writing in 2018. There were various other agreements to extend the tenancy and to alter the rent. Some of these appear to have been oral agreements or agreements recorded by exchange of emails, memos or letters.
[40] The law of contractual interpretation has evolved in Canada in the last 50 years. The courts have moved from legal formalism to a more nuanced contextual interpretation in which the surrounding circumstances can be used by the court as an aid to understanding the bargain made by the parties. Nevertheless, there remain certain formal rules of contractual interpretation that pertain to written agreements.[^6]
[41] I adopt the following summary of the law set out by Justice Nishikawa in 1548 Richmond Manor Inc. v. Fido Solutions Inc.[^7]
[33] The Supreme Court of Canada has observed that the courts’ approach to contract interpretation “has evolved towards a practical, common-sense approach not dominated by technical rules of construction”: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, at para. 47. The primary object of contract interpretation is to give effect to the intention of the parties at the time of contract formation: Bhasin v. Hrynew, 2014 SCC 71, at para. 45. The “intent of the parties and the scope of their understanding,” is determined by reading a contract “as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract”: Sattva Capital, at para. 47.
[34] Similarly, in The Plan Group v. Bell Canada, 2009 ONCA 548, at para. 37, the Court of Appeal held that a commercial contract should be interpreted: (i) as a whole, by giving meaning to all the terms of a contract to avoid an interpretation that would render any term ineffective; (ii) by determining the intention of the parties with reference to the words used in the contract; (iii) with regard to objective evidence of the factual matrix underlying the negotiation of the contract, but without reference to subjective intention; and (iv) to the extent that there is any ambiguity in the contract, in a fashion that accords with sound commercial principles and good business sense and that avoids a commercial absurdity. See also Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, at para. 24.
Interpretation of the Lease
[42] Just because a lease has expired and has not been formally renewed, the parties are not prevented from agreeing to extensions of the tenancy. That is what happened here. The original lease contained a formal right to extend the lease for five years. That was not exercised. The current lease has a notation on the back indicating that it could be extended from three years to five years. Both parties agree that such an extension was possible, but both agree that it was not extended. Instead, the parties have agreed that the tenancy is extended from month to month, but the terms of the lease continue to apply.
[43] In the case at bar, it is abundantly clear that the “basic terms” of the lease set out in paragraph 1.1 contain the essentials of the agreement between the parties. That paragraph defines the portions of the premises to be rented to the tenant and the amounts to be paid as base rent and as additional rent. Those terms were amended periodically as the extent of the tenancy was expanded and the amount of the rent was renegotiated.
[44] To the extent that other portions of the lease refer to calculations related to rentable area, to market rents or to BOMA standards, I find that those references are confined to specific paragraphs with specific rights to be exercised in specific circumstances. None of those rights of renewal, rights to arbitration or referral to mediation were exercised by either party or triggered by either of them.
[45] The parties were extensively cross examined on their affidavits. Nowhere in the evidence is there any suggestion that the parties based the rent negotiations on specific formulas or intended that the rent could be adjusted by reference to market rents. To the contrary, both the documents and the evidence of the parties themselves make it clear that the landlord proposed a rent for the space that the tenant proposed to occupy and the tenant decided that what was offered was a fair amount for what he was receiving. This is a very clear case of offer and acceptance. The tenant had every opportunity to conduct due diligence and to consider whether or not the proposed rent was affordable before agreeing to take on the additional space or pay the new rent.
The expert evidence
[46] Each party obtained appraisals and valuations of fair market rents for office space based on comparable properties. Those appraisals vary considerably in their estimates of what the market rent for similar properties might be. This in large part due to the fact that they selected different comparables; a factor I am asked to consider in weighing that evidence or determining if the evidence of each appraiser is truly unbiased.
[47] Using a methodology for estimating office lease prices, Mr. Comba is of the view that the current market rate would be approximately $13.50 per square foot whereas Mr. Tighe puts the rate at $12.50 per square foot. This is based on the assumption that the value in the leased property is in the office space and warehouse space and the parking area is not considered as part of the rentable area. In this method of valuation, the availability of parking is only considered as added value and enhances the amount per square foot to be charged as base rent.
[48] This method of valuation also assumes that paragraph 1.2 (o) of the lease containing a definition of rentable area of the premises that is “measured to the outside surface of the outer building wall and, for greater certainty, excludes storage areas and parking areas” should be preferred over the definition of “rentable area of the premises” in the basic terms contained in paragraph 1.1.
[49] These expert valuations are not binding on the court, and they do not speak to the proper interpretation of the lease agreement. The appraisers were asked to calculate a market value for commercial office and warehouse space using the BOMA standard for building rents. They were not opining on the legal question as to what bargain was struck between the contracting parties. The appraisals are only helpful if the contract requires that the rent charged by the landlord is “fair market rent” for building space and provides the tenant a right to have the rent retroactively recalculated.
[50] I do not accept this interpretation of the lease. Paragraph 1.1 clearly reflects the purpose of the lease which was primarily to obtain land and property to store and service vehicles. It also reflects the various negotiations and renegotiations of the rent. On each occasion, the rent was expressed as total rent for the parking and storage areas, industrial and storage building and office space. This was not a lease for office space that just happened to be enhanced by a large parking area. In fact, the building only covers 20 percent of the useable lot area.
[51] The absurdity of valuing the property as an office is clear by considering two hypotheticals. Suppose, for example, that the tenant had rented a parking and storage lot with no building. Clearly there would be a market rate for renting such a property that would not be calculated by valuing the non-existent office space. Similarly, if the vacant lot contained a small storage hut or garage, the value would not be appropriately determined by assessing rent for the garage. Ultimately, the market value of the rent for a property will be determined by what a willing tenant is prepared to pay for the property for the intended use of the property. In this case, the office space was appurtenant to the other uses and not the other way around.
[52] It is not at all clear that the definition in paragraph 1.2 (o) was intended to have any effect. Reading it as generously as possible, it might be considered that definition would have applied had there been an exercise of the five-year renewal right and reference to arbitration to determine “then fair market rents”. In my view however, paragraph 1.1 (e) of the lease is a more specific paragraph, consistent with the purpose of the lease and it must be taken to override paragraphs 1.2 (o). This was never primarily an “office lease”. There is simply nothing in the record to suggest that the parties ever considered that this was only a tenancy of the building with parking attached.
[53] I recognize that where parties have signed a written contract, they must be deemed to have intended to agree to the document as worded. I further recognize that to the extent it is possible to do so the document must be read as a whole with ambiguities and contradictions given a harmonious reading if possible. In this case, however, the parties continuously negotiated and renegotiated the rent and demonstrated a pretty cavalier attitude towards the written text. They operated largely outside of the lease document.
[54] Taking the evidence as a whole, I cannot find that the tenant was in any way mislead by the landlord or was in any doubt about the rent to be paid. The tenant was not unsophisticated and knew the value of the leased property to his business. He continuously considered whether or not he was prepared to pay the new rent and on each occasion he agreed. Presumably the tenant could have determined what the tenants he was replacing had been paying in rent or he could have conducted his own market research or looked for alternative properties to rent at any time.
[55] As discussed above, there was an extension right in the original lease that would have tied the rent to fair market rates in exchange for a five-year commitment. It appears the tenant did not want to enter into a five-year lease at that time. Instead, there was an oral extension for an indeterminate period of time. Similarly, in 2018, although it was not documented in a Schedule, the tenant had the right to extend the three-year lease to five. Instead, the tenant attempted to purchase the property and he converted the three-year lease to a month-to-month tenancy when it expired. He did not extend the lease for two years.
[56] I do not interpret the lease as containing a promise that the rent will be adjusted to market rates except in very particular circumstances. I cannot read the lease as containing a general right to a retroactive rent adjustment.
[57] It may well be that as the tenant took on more and more of the property, the landlord increased the rent to something above market rates. That is not the question. The question is whether the lease or the terms of the extended or continued tenancy included a promise that the rents would not exceed market rates or some other objective standard. I find that it did not.
Conclusion
[58] In conclusion, I find that the landlord and tenant continuously engaged in negotiations which resulted in the tenant taking over all of the premises and paying increased rent. The terms of the tenancy do not contain a retroactive rent adjustment right. The tenant is not entitled to a rebate of rent.
[59] The application is therefore dismissed.
Costs
[60] Subject to offers to settle or to other factors I am not currently aware of, the landlord is presumptively entitled to costs. I invite the parties to agree on costs. If they are unable to do so within 30 days, they may make brief costs submissions in writing on a schedule and format to be fixed by my office.
Mr. Justice C. MacLeod
Date: June 6, 2023
COURT FILE NO.: CV-22-89377
DATE: 2023/06/06
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: J.R. LAWN MAINTENANCE & SNOW REMOVAL INC., Applicant
AND:
CZESLAW PASZKIEWICZ AND GABRYJELA PASZKIEWICZ, ALSO KNOWN AS GABRIELA PASZKIEWICZ, Respondents
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Jason Rabin, for the Applicants
Todd Burke & Aweis Osman, for the Respondents
decision and reasons
Regional Senior Justice C. MacLeod
Released: June 6, 2023
[^1]: See 2022 ONSC 3885 [^2]: I mention this simply to show that the documents are lacking in precision or accuracy. Despite the confusion with the sketches, there is no dispute as to what land was occupied by the tenant or what rent was charged and paid at different points in time. [^3]: Simultaneously with this offer to purchase, the tenant also offered to purchase nearby property at 1569 Michael Street with a view to purchasing both properties. That agreement for $2.355 million did close on February 15, 2022. [^4]: While there is no extension right in the lease document and Schedule E is blank, it is the tenant’s evidence that he understood he had the right to a two-year extension. This may explain why in one paragraph of the lease, it is described as a five-year lease, but nothing turns on this because the lease was not formally extended as such. [^5]: Statute of Frauds, RSO 1990, c. s.19 as amended to 1994, s. 2 – 3 [^6]: See Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633 and see the discussion in chapter 1 of Waddams, S.M, The Law of Contracts, 8th Edition, Thomson Reuters Canada Limited, 2022 [^7]: 2019 ONSC 3833