1465152 Ontario Ltd. v. Amexon Development Inc., 2015 ONCA 86

• Judge: Hoy, A.C.J.O., van Rensburg and Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 21, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 86;(2015), 330 O.A.C. 344 (CA)

1465152 Ont. v. Amexon Dev. Inc. (2015), 330 O.A.C. 344 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. FE.001

1465152 Ontario Limited (respondent) v. Amexon Development Inc. (appellant)

(C59083; 2015 ONCA 86)

Indexed As: 1465152 Ontario Ltd. v. Amexon Development Inc.

Ontario Court of Appeal

Hoy, A.C.J.O., van Rensburg and Brown, JJ.A.

February 6, 2015.

Summary:

The appellant Landlord wanted to demolish the leased premises and redevelop the property. It delivered a Notice to Vacate to the respondent Tenant. The Tenant applied for declaratory relief, including a declaration that the Notice to Vacate was void, as well as a permanent injunction restraining the Landlord from terminating the lease and trespassing onto the leased premises.

The Ontario Superior Court declared that the Notice to Vacate was void, and also enjoined the Landlord from re-entering the leased premises and from otherwise failing to fulfill its obligations under the lease. The Landlord appealed.

The Ontario Court of Appeal dismissed the appeal. The application judge did not err in his interpretation of the lease or in exercising his discretion to grant a permanent injunction.

Injunctions - Topic 5955

Particular matters - Contracts - Enjoining threatened or anticipated breaches - [See Landlord and Tenant - Topic 9362 ].

Injunctions - Topic 7123

Particular matters - Particular interests protected - Property rights - [See Landlord and Tenant - Topic 9362 ].

Injunctions - Topic 7843

Setting aside injunctions - Grounds - Improper purpose - [See Landlord and Tenant - Topic 9362 ].

Landlord and Tenant - Topic 1399

The premises - Quiet enjoyment - Breach - Trespass by landlord - [See Landlord and Tenant - Topic 1400 and Landlord and Tenant - Topic 9362 ].

Landlord and Tenant - Topic 1400

The premises - Quiet enjoyment - Breach - Remedies - The appellant Landlord wanted to demolish the leased premises and redevelop the property - It issued a Notice to Vacate - The respondent Tenant applied for a declaration that the Notice to Vacate was void, as well as a permanent injunction restraining the Landlord from terminating the lease and trespassing onto the leased premises - The Landlord submitted that s. 13.07 of the lease, entitled "Remedies Generally", limited the Tenant's remedy to damages - The application judge rejected that submission, and granted the relief sought - The Ontario Court of Appeal, in dismissing the appeal, held that the judge followed the correct legal principles by first inquiring whether s. 13.07 applied to the Notice to Vacate - He concluded that it did not because the landlord had committed "a complete repudiation of its grant and consideration [and a tort (trespass) to which the clause does not apply]." - That conclusion was a reasonable one and merited deference - See paragraphs 8 to 18.

Landlord and Tenant - Topic 2422

The lease - Repudiation - What constitutes - [See Landlord and Tenant - Topic 1400 ].

Landlord and Tenant - Topic 6689

Termination, forfeiture, and reentry - Notice of termination - Validity of - [See Landlord and Tenant - Topic 1400 ].

Landlord and Tenant - Topic 9362

Practice - Actions - Injunctions - The appellant Landlord wanted to demolish the leased premises and redevelop the property - It issued a Notice to Vacate - The respondent Tenant applied for declaratory relief and a permanent injunction - The application judge enjoined the landlord from re-entering the leased premises and otherwise failing to fulfill its obligations - On appeal, the Landlord submitted that: (i) an award of damages would adequately compensate the Tenant; (ii) the Tenant was seeking an injunction for an improper purpose, namely to enhance its bargaining position with the Landlord; and (iii) an injunction was a disproportionate remedy in the circumstances - The Ontario Court of Appeal disagreed - First, the Tenant was alleging a wrongful interference with a proprietary interest - The Landlord sought to trespass by seeking to enter the leased premises without any authority, terminate the lease and demolish the premises - It fell within the judge's discretion to restrain the Landlord from committing such a trespass - Second, the judge made no finding of improper purpose on the Tenant's part and, by contrast, found that the Landlord had engaged in tortious misconduct - Third, it was not unreasonable to permit the Tenant to continue to occupy premises which amounted to less than three per cent of the total rental area when all other tenants had vacated - The judge balanced the parties' respective interests and tailored the scope of the injunction - See paragraphs 19 to 28.

Cases Noticed:

Creston Moly Corp. v. Sattva Capital Corp. (2014), 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 373 D.L.R.(4th) 393; 2014 SCC 53, refd to. [para. 10].

Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways), [2010] 1 S.C.R. 69; 397 N.R. 331; 281 B.C.A.C. 245; 457 W.A.C. 245; 2010 SCC 4, refd to. [para. 11].

Pointe East Windsor Ltd. v. Windsor (City), [2014] O.A.C. Uned. 436; 374 D.L.R.(4th) 380; 2014 ONCA 467, refd to. [para. 22].

Evergreen Building Ltd. v. IBI Leaseholds Ltd. (2005), 219 B.C.A.C. 165; 361 W.A.C. 165; 50 B.C.L.R.(4th) 250; 2005 BCCA 583, refd to. [para. 24].

Santarsieri (Michael) Inc. et al. v. Unicity Mall Ltd. (1999), 142 Man.R.(2d) 63; 212 W.A.C. 63; 181 D.L.R.(4th) 136 (C.A.), refd to. [para. 26].

Denovan v. Lee (1989), 65 D.L.R.(4th) 103 (B.C.C.A.), refd to. [para. 29].

Authors and Works Noticed:

Sharpe, Robert J., Injunctions and Specific Performance (2014) (Looseleaf), paras. 4.10, 4.20 [para. 23]; 4.590 [para. 27].

Counsel:

Hillel David, for the appellant;

Catherine Francis and Mark Freake, for the respondent.

This appeal was heard on January 21, 2015, before Hoy, A.C.J.O., van Rensburg and Brown, JJ.A., of the Ontario Court of Appeal. In reasons written by Brown, J.A., the Court delivered the following judgment, released on February 6, 2015.