AIM Health Group Inc. v. 40 Finchgate Limited Partnership, 2012 ONCA 795

JudgeFeldman, Gillese and Epstein, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateJune 22, 2012
JurisdictionOntario
Citations2012 ONCA 795;(2012), 300 O.A.C. 130 (CA)

AIM Health Group v. 40 Finchgate (2012), 300 O.A.C. 130 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. DE.008

AIM Health Group Inc. (formerly known as CPM Health Centre Inc.) (applicant/respondent) v. 40 Finchgate Limited Partnership (respondent/appellant)

(C54997; 2012 ONCA 795)

Indexed As: AIM Health Group Inc. v. 40 Finchgate Limited Partnership

Ontario Court of Appeal

Feldman, Gillese and Epstein, JJ.A.

November 20, 2012.

Summary:

A tenant advised its landlord that it would not be renewing its commercial lease when it expired on December 31, 2011, but that it would need a short extension of the lease before it would be able to move. On December 19, 2011, the landlord gave the tenant written notice that it required the premises on January 1, 2012, because it had secured a new tenant. The lease expired. The tenant continued to occupy the premises. The landlord changed the locks on the premises and removed the tenant's property. The tenant applied for a declaration that it was entitled to re-enter the lease premises as it was an overholding tenant. As such, it asserted that the lease had become a month to month tenancy, which the landlord had not given notice to terminate.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 169, allowed the application and declared that the tenant was entitled to re-enter the premises. The landlord appealed.

The Ontario Court of Appeal, Gillese, J.A., dissenting, allowed the appeal and dismissed the tenant's application.

Contracts - Topic 7416

Interpretation - General principles - Most commercially reasonable interpretation - A tenant advised its landlord that it would not be renewing its commercial lease when it expired on December 31, 2011, but that it would need an extension before it could move - On December 19, 2011, the landlord gave the tenant written notice that it required the premises on January 1, 2012, because it had secured a new tenant - The lease expired - The tenant continued to occupy the premises - The tenant asserted that the lease's overholding clause had a different meaning and effect than the common law meaning and effect of overholding, because the clause did not say that a month to month tenancy was created only on the payment and acceptance of rent or on the consent of the landlord - The tenant asserted that clause gave it the unilateral option not to vacate the premises at the end of lease, as required by the surrender clause, but to remain in possession, creating a new month to month tenancy without the landlord's consent - The Ontario Court of Appeal disagreed - Judicial authority had consistently interpreted commercial overholding clauses that did not refer to the landlord's acceptance of rent as effectively implying that term - That interpretation made commercial sense - To interpret the clause as giving the tenant the unilateral option to remain in the premises made it commercially unreasonable - Clauses that were well-understood to have a particular meaning and consequence, should be consistently interpreted in order to foster certainty and predictability - The court's interpretation also gave full effect to the lease's surrender clause - The overholding clause did not extend the lease - The tenant was required to comply with the surrender clause - See paragraphs 99 to 116.

Landlord and Tenant - Topic 1076

Classes of tenancies - Tenancies at will - Defined - The Ontario Court of Appeal stated that "At common law, if a tenant remains in possession following the expiry of the term of the lease, there are four possible legal relationships that can then be created between the tenant and the landlord: 1) a tenancy at sufferance; 2) a tenancy at will; 3) a deemed new periodic tenancy, referred to as a holdover tenancy; and 4) a trespass." - The court discussed each of the relationships - See paragraphs 92 to 97.

Landlord and Tenant - Topic 1092

Classes of tenancies - Tenancy at sufferance - Creation of - [See Landlord and Tenant - Topic 1076 ].

Landlord and Tenant - Topic 2605

The lease - Interpretation - Commercial lease - [See Contracts - Topic 7416 ].

Landlord and Tenant - Topic 6000

Surrender and abandonment - Surrender - General - [See Contracts - Topic 7416 ].

Landlord and Tenant - Topic 7501

Overholding tenants - General - [See Contracts - Topic 7416 and Landlord and Tenant - Topic 1076 ].

Torts - Topic 3003

Trespass - Trespass to land - Interference with use of land - [See Landlord and Tenant - Topic 1076 ].

Cases Noticed:

Imperial Oil Ltd. v. Robertson, [1959] O.R. 655 (C.A.), refd to. [paras. 37, 101].

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241, refd to. [para. 53].

Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888; 32 N.R. 488; 112 D.L.R.(3d) 49, refd to. [para. 54].

Medalist Holdings Ltd. v. General Electric Capital Equipment Finance Inc., [1997] O.J. No. 1995 (Gen. Div.), refd to. [para. 68].

Lyons and McVeity, Re (1919), 46 O.L.R. 148; 49 D.L.R. 635 (C.A.), refd to. [para. 93].

Gasner v. Bellak Brothers Ltd., [1945] O.R. 499; [1945] 3 D.L.R. 365 (C.A.), refd to. [para. 93].

Doe dem. Burritt v. Dunham (1847), 4 U.C.Q.B. 99, refd to. [para. 97].

Raphael v. Crystal, [1966] 2 O.R. 733; 58 D.L.R.(2d) 325 (H.C.), refd to. [para. 106].

Gibbens v. Co-operators Life Insurance Co., [2009] 3 S.C.R. 605; 396 N.R. 165; 278 B.C.A.C. 283; 471 W.A.C. 283; 2009 SCC 59, refd to. [para. 114].

Authors and Works Noticed:

Haber, Harvey M., The Commercial Lease: A Practical Guide (4th Ed. 2004), p. 329 [para. 96].

Hall, Geoff R., Canadian Contractual Interpretation Law (2nd Ed. 2012), p. 111 [para. 114].

Halsbury's Laws of England (4th Ed. 2006), vol. 27(1), para. 201 [para. 94]; 212 [para. 95].

Olson, Richard, A Commercial Tenancy Handbook (2004) (2012 Looseleaf Update, Release 1), pp. 3-72.1 [para. 95]; 3-72.2 [para. 96]; 12-1 [para. 93]; 12-2 [para. 94]; 12-3 [para. 95]; 12-5 [para. 93].

Williams and Rhodes, Canadian Law of Landlord and Tenant (6th Ed. 1988) (2012 Looseleaf Update, Release 1), para. 13:1:1 [para. 90].

Counsel:

V. Ross Morrison and Natalie Schernitzki, for the appellant;

John Russo and Marc D. Whiteley, for the respondent.

This appeal was heard on June 22, 2012, by Feldman, Gillese and Epstein, JJ.A., of the Ontario Court of Appeal. The judgment of the court was released on November 20, 2012, with the following opinions:

Gillese, J.A., dissenting - see paragraphs 1 to 85;

Feldman, J.A. (Epstein, J.A., concurring) - see paragraphs 86 to 120.

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12 practice notes
  • Top 5 Civil Appeals from the Court of Appeal - Revised Version (December 2012)
    • Canada
    • Mondaq Canada
    • January 3, 2013
    ...Inc., 2012 ONCA 774 (Armstrong, Watt and Pepall JJ.A.), November 14, 2012 AIM Health Group Inc. v. 40 Finchgate Limited Partnership, 2012 ONCA 795 (Feldman, Gillese and Epstein JJ.A.), November 20, 2012 Sino-Forest Corporation (Re), 2012 ONCA 816 (Goudge, Hoy and Pepall JJ.A.), November 23,......
  • Top 5 Civil Appeals from the Court of Appeal (December 2012)
    • Canada
    • Mondaq Canada
    • December 20, 2012
    ...Inc., 2012 ONCA 774 (Armstrong, Watt and Pepall JJ.A.), November 14, 2012 3. AIM Health Group Inc. v. 40 Finchgate Limited Partnership, 2012 ONCA 795 (Feldman, Gillese and Epstein JJ.A.), November 20, 2012 4. Sino-Forest Corporation (Re), 2012 ONCA 816 (Goudge, Hoy and Pepall JJ.A.), Novemb......
  • EAD Property Holdings (103) Corp. v. Greyhound Canada Transportation ULC, 2015 ABQB 239
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • April 13, 2015
    ...a potential impact on future rights suffices for declaratory relief. It also cites Aim Health Group Inc v 40 Finchgate Ltd Partnership , 2012 ONCA 795, 300 OAC 130 and Independent Laundry Rentals v Fernwood Construction) (1985), 66 AR 374, 1985 CanLII 1397 at paras 14, 20 and 21 which addre......
  • Price Security Holdings Inc. v. Klompas & Rothwell, 2019 BCCA 36
    • Canada
    • Court of Appeal (British Columbia)
    • January 31, 2019
    ...there to be an overholding tenancy. Rather, she relied on the decision of AIM Health Group Inc. v. 40 Finchgate Limited Partnership, 2012 ONCA 795, which dealt with the creation of overholding tenancies at common [29] Next, the Tenant says that not all of the documentation was before the co......
  • Request a trial to view additional results
9 cases
  • EAD Property Holdings (103) Corp. v. Greyhound Canada Transportation ULC, 2015 ABQB 239
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • April 13, 2015
    ...a potential impact on future rights suffices for declaratory relief. It also cites Aim Health Group Inc v 40 Finchgate Ltd Partnership , 2012 ONCA 795, 300 OAC 130 and Independent Laundry Rentals v Fernwood Construction) (1985), 66 AR 374, 1985 CanLII 1397 at paras 14, 20 and 21 which addre......
  • Price Security Holdings Inc. v. Klompas & Rothwell, 2019 BCCA 36
    • Canada
    • Court of Appeal (British Columbia)
    • January 31, 2019
    ...there to be an overholding tenancy. Rather, she relied on the decision of AIM Health Group Inc. v. 40 Finchgate Limited Partnership, 2012 ONCA 795, which dealt with the creation of overholding tenancies at common [29] Next, the Tenant says that not all of the documentation was before the co......
  • Orion Interiors Inc. v. State Farm Fire and Casualty Co. et al., [2016] O.A.C. Uned. 172 (CA)
    • Canada
    • Court of Appeal (Ontario)
    • February 29, 2016
    ...the parties' continuing relationship outside of this provision. See also: AIM Health Group Inc. v. 40 Finchgate Limited Partnership , 2012 ONCA 795, 113 O.R. (3d) 187. [17] Third, the appellant asserts that, to the extent that the flooding resulted from the landlord's failure to fulfill its......
  • Dhami v. Redekop, 2020 BCSC 630
    • Canada
    • Supreme Court of British Columbia (Canada)
    • April 24, 2020
    ...periodic tenancy, referred to as a holdover tenancy; and (4) a trespass. See AIM Health Group Inc. v. 40 Finchgate Limited Partnership, 2012 ONCA 795, 113 O.R. (3d) 187, at para 92. Epstein J.A. goes on to explain these legal relationships succinctly in the following [93] A tenancy at suffe......
  • Request a trial to view additional results
3 firm's commentaries
  • Top 5 Civil Appeals from the Court of Appeal - Revised Version (December 2012)
    • Canada
    • Mondaq Canada
    • January 3, 2013
    ...Inc., 2012 ONCA 774 (Armstrong, Watt and Pepall JJ.A.), November 14, 2012 AIM Health Group Inc. v. 40 Finchgate Limited Partnership, 2012 ONCA 795 (Feldman, Gillese and Epstein JJ.A.), November 20, 2012 Sino-Forest Corporation (Re), 2012 ONCA 816 (Goudge, Hoy and Pepall JJ.A.), November 23,......
  • Top 5 Civil Appeals from the Court of Appeal (December 2012)
    • Canada
    • Mondaq Canada
    • December 20, 2012
    ...Inc., 2012 ONCA 774 (Armstrong, Watt and Pepall JJ.A.), November 14, 2012 3. AIM Health Group Inc. v. 40 Finchgate Limited Partnership, 2012 ONCA 795 (Feldman, Gillese and Epstein JJ.A.), November 20, 2012 4. Sino-Forest Corporation (Re), 2012 ONCA 816 (Goudge, Hoy and Pepall JJ.A.), Novemb......
  • Landlord Consent Is Required To Overhold
    • Canada
    • Mondaq Canada
    • June 6, 2013
    ...leased space after the expiry of the term. This was argued by the tenant in AIM Health Group Inc. v. 40 Finchgate Limited Partnership, 2012 ONCA 795, http://canlii.ca/t/fttft (the "AIM case"). In this case, the Ontario Court of Appeal ultimately rejected the tenant's interpretation and held......

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