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It Is Reasonable to Withhold Consent Until a Default Is Cured

Wednesday, Dec 21, 2022

In a recent Ontario Court of Appeal (the “ONCA”) decision, Tabriz Persian Cuisine v. Highrise Property Group Inc., a landlord's refusal to consider consenting to an assignment until the tenant had satisfied certain conditions was front-and-center.

“Substantially Complete” is Substantially Uncertain

Wednesday, Nov 30, 2022

In this News ReLease, we are concerned with the assumption that “substantial completion” is a well-defined term of certain meaning. Unfortunately, that’s not the case.

Will Credit Card Charges Gross-Up Gross Revenue?

Friday, Oct 21, 2022

As of October 6, 2022, merchants everywhere in Canada (except for Quebec) are allowed to pass their Visa and MasterCard interchange fees on to their customers, up to a maximum of 2.4%. This has implications for “gross revenue” for percentage rent purposes.

Relief From Forfeiture Isn’t Always a Relief

Tuesday, Aug 30, 2022

In the recent, long-awaited decision of the Ontario Court of Appeal in Hudson’s Bay Company ULC v. Oxford Properties, the Court confirmed that the economic impact of the COVID-19 pandemic does not justify expanding the scope of section 20 of the Commercial Tenancies Act (Ontario).

Pandemic Restrictions ≠ Radical Alteration

Tuesday, Jul 26, 2022

During the pandemic, landlords and tenants questioned whether government restrictions on business relieved tenants of the obligation to pay rent. In our April 6, 2020 News ReLease, we encouraged readers to study the details of any force majeure clause, and we suggested that there was not much legal authority in case law to support a claim that leases had been frustrated to the point of allowing tenants to be relieved of their obligations. The recent decision of Braebury Development Corporation v. Gap (Canada) Inc. confirms what we posited in April 2020: that if a lease contains a force majeure clause, tenants are unlikely to succeed with an attempt to claim that the doctrine of frustration applies.

Buyer Beware: Due Diligence in “Restructuring” Proceedings

Monday, Jun 06, 2022

In McEwan Enterprises Inc., 2021 ONSC 6878 (“McEwan”), the Ontario Superior Court considered Section 36(4) of the CCAA. This Section requires the applicant to make a good faith effort to find a buyer that is not a related party, or, where a related party becomes the buyer, to ensure that the related party puts forward the best offer.

Who “Wins” When Relief From Forfeiture is Granted?

Tuesday, May 03, 2022

It is common, after parties duke it out in court, for the winner to be “awarded costs” - the loser must pay all or a portion of the winner’s legal fees. However, in an application for relief from forfeiture, who wins and who loses is a more nuanced matter.

Silence Doesn’t Always Equal a Breach of Good Faith

Monday, Jan 10, 2022

In Callow, the SCC held that if a party to a contract remains silent while aware that it has caused its counterparty to operate under a misapprehension, that party may be liable for breach of the duty of good faith. Since then, two court rulings have taken a nuanced approach to the Callow holding.

Collecting Overhold Rent – When is it Too Late?

Friday, Dec 10, 2021

An overholding tenancy is created when a tenant remains in possession of its premises past the expiry of its term without a new agreement. Under th...

Life After CERS

Tuesday, Nov 23, 2021

After a couple of extensions, the Canada Emergency Rent Subsidy (“CERS”) program finally came to an end on October 23, 2021. The Canadi...