Canada Case Law

Photopoulos et al. v. Primacy Management Inc.

Court

Supreme Court of Nova Scotia

The court held that the Agreement's holdover clause applied all terms during month-to-month occupancy; clause 10.2 (120 days notice and two-year restrictive covenant) remained operative during holdover; Primacy breached by giving less than 120 days' notice and by sub-licensing to another medical clinic within two years; the $5,000 liquidated damages provision was not a genuine pre-estimate and was void as a penalty for the range of breaches it purported to cover; Applicant's loss of chance was compensable and, after adjustments (COVID impact and avoided rent), damages were assessed at $33,223…

Source excerpt

• Holdover clause
• Termination notice
• Liquidated damages
• Loss of chance
• Mitigation
• Punitive damages

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Donnelly Holdings Ltd. (Re)

Court

Supreme Court of British Columbia

The court refused to approve a CCAA lease assignment for Cinema Public House Ltd., finding the proposed assignee lacked sufficient evidence of ability to perform and to pay cure costs.

• Ccaa s.11.3 lease assignment
• Approval and vesting order
• Cure costs
• Landlord consent
• Monitor approval
• Sale process under ccaa

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100 Bloor Street West Corporation v. Barry's BootCamp Canada Inc.

Court

Court of Appeal for Ontario

The appeal is dismissed because the application judge did not commit an extricable error of law and reasonably concluded that the lease, which granted the landlord 'sole and unfettered' discretion and contained ambiguous/inconsistent language, permitted allocation of realty taxes by a proportionate share calculation; therefore the landlord's exercise of discretion was reasonable under the applicable standards of review.

Source excerpt

• Contractual discretion
• Reasonableness review
• Lease interpretation
• Realty tax allocation
• Extricable error of law
• Proportionate share calculation

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SCP 173 Dining Limited v. Costa Del Sol Holdings Ltd.

Court

Supreme Court of British Columbia

The court dismissed a landlord’s disclosure application, holding that tenant financial statements were not relevant to setting minimum rent under the lease.

• Option to renew
• Minimum rent determination
• Document production (second-tier disclosure)
• Contract interpretation
• Valuation of business assets
• Commercial-leasing

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Tran v. Bloorston Farms Ltd.

Court

Court of Appeal for Ontario

Where the wrongful act was committed against the shareholder (the tenant) and the corporation has no cause of action, the Foss v. Harbottle rule does not bar the shareholder from claiming diminution in share value; on these facts the landlord wrongfully terminated the tenant's lease and the appellant's appeal is dismissed.

Source excerpt

• Foss v. harbottle rule
• Reflective loss/diminution in share value
• Derivative action
• Foreseeability of damages
• Estoppel by convention
• Summary judgment

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Siddoo v. OJJJ Enterprises Ltd.

Court

Supreme Court of British Columbia

Commercial landlord-tenant dispute over alleged gym noise. The court held the tenants failed to prove breach of quiet enjoyment and were liable for leaving early.

• Quiet enjoyment
• Derogation from grant
• Repudiation of contract
• Damages
• Mitigation
• Costs and indemnity

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Second Cup Ltd. v. OPB Realty Inc.

Court

Supreme Court of Nova Scotia

Reading the Use Clause as a whole and in its factual matrix, 'non-perishable' must be understood relative to the listed foods (many of which require preservation); frozen yogurt is at least as non-perishable as those items and fits within 'dessert' and ancillary food sales, therefore the lease permits Second Cup to sell frozen yogurt at the Halifax Shopping Centre premises.

Source excerpt

• Use clause interpretation
• Ancillary food sales
• Exclusive use
• Commercial lease interpretation

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McRae Cold Storage Inc. v. Nova Cold Logistics ULC

Court

Court of Appeal for Ontario

The appeal is dismissed because the appellant was in default and thus failed to satisfy the condition precedent to exercise the renewal option; the application judge correctly applied the narrower equitable standard for relief from forfeiture in the context of lease renewals and properly concluded the appellant failed to act with due diligence, so relief was not warranted.

Source excerpt

• Relief from forfeiture
• Lease renewal
• Interpretation of contractual energy clause
• Default under lease

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Fountain Tire (London Stoneybrook) Ltd. v. 2169728 Ontario Ltd.

Court

Court of Appeal for Ontario

The trial judge's interpretation that the City-owned parking area was not part of the leased Property was correct and is entitled to deference; however, the trial judge made a palpable and overriding error in concluding para. 7.01(d) allowed the Landlord to lease the Landlord's office to third parties because the lease distinguishes 'use' (reserved to the Landlord) from 'access or entry' (afforded to the Landlord and its invitees), and that distinction precludes leasing the office to third parties under para. 7.01(d).

Source excerpt

• Lease interpretation
• Exclusive use clause
• Parking licence
• Declaratory relief
• Standard of review for contractual interpretation

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Paulin v. Keewatin Patricia District School Board

Court

Court of Appeal for Ontario

The Court of Appeal upheld the motion judge’s interpretation that, read as a whole, the lease required the tenant to obtain CGL insurance naming the School Board as additional insured for liabilities arising from maintenance, use or occupancy of the leased space; a contractual undertaking to insure operates as an assumption of the insured risk, so the tenant assumed and must therefore defend and indemnify the School Board for the plaintiff’s claim; the Canada Steamship rule is inapplicable because exoneration arises from an assumed insurance risk rather than an exculpatory clause.

Source excerpt

• Lease interpretation
• Indemnity
• Assumption of risk via insurance covenant
• Additional insured clause
• Application of canada steamship negligence exemption rule

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