VP Auto Sales & Service Ltd. v Ahmed2 Inc., 2024 ONCA 507, saw the Ontario Court of Appeal (the “Court”) address a motion judge’s grant of partial summary judgment, with damages being reserved for trial. The Court, in one of its rare decisions on partial summary judgment, agreed with Motion judge’s ruling. The respondent entered an Agreement of Purchase and Sale (the “Agreement”) with the appellant. Before the closing, the appellant raised concerns about the price being too high and requested a discount, which was refused by the respondent. On the scheduled closing date, the appellant did not proceed with the transaction, citing a breach of the Agreement by the respondent. This resulted in the property remaining unsold, prompting the respondent to seek summary judgment against the appellant for the purchase price of $4,750,000. The motion judge granted summary judgment on liability, finding the appellant accountable for the failure to … Read More
Breach of Agreement of Purchase and Sale – What are Your Options?
The Ontario Court of Appeal (ONCA) in Ching v. Pier 27 Toronto Inc., 2021 ONCA 551 (CanLII), recently outlined the options an innocent party to an agreement of purchase and sale (APS) has upon the other party breaching (i.e. repudiating) the APS. General Principles Repudiation is the refusal of one party to an APS to abide by the terms of the APS. Repudiation by one party does not in itself result in the termination of the APS. Rather, repudiation provides the innocent party (i.e. the non-repudiating party) to the APS with the following choices: Accept the repudiation (i.e. disaffirm the APS); or Treat the APS as subsisting (i.e. affirm the APS). The innocent party generally has a reasonable period of time to choose whether to disaffirm or affirm the APS. However, waiting too long may result in a court determining that the APS has been affirmed. During this reasonable waiting … Read More
Breach of Contract Lawyers – Can Contracts that do not Specify Duration or that Lack a Termination Clause be Terminated Unilaterally?
Ontario’s Court of Appeal (“ONCA”) in Conseil Scolaire Catholique Franco-Nord v. Nipissing, 2021 ONCA 544 opined on how contracts that do not specify a termination date or a procedure for termination ought to be interpreted. The ONCA grappled with the question of whether to treat a contract that was silent on the issue of termination as either (1) a perpetual contract, that does not end, or (2) a contract of indefinite duration, into which the court can imply a provision allowing for unliteral termination upon reasonable notice. Historical Approach The ONCA advised that courts used to presume that contracts which were indefinite in time were perpetual in nature. However, this approach was subsequently disregarded, and courts began to presume a right to terminate an indefinite contract by the provision of reasonable notice. New Approach The ONCA advised that even more recently, however, a contextual, fact-specific, approach has been favoured by … Read More
Nick Poon Comments on Anti-Black Racism in Commercial Lease Dispute for The Lawyer’s Daily
Nick Poon was recently asked by The Lawyer’s Daily to comment on the Ontario Superior Court of Justice decision in Elias Restaurant v. Keele Sheppard Plaza Inc., 2020 ONSC 5457. The Lawyer’s Daily article is found here: Court cites ‘prejudices’ to Black tenants in overturning landlord’s eviction bid. In this case, the tenant was a husband and wife team that operated a successful restaurant/bar offering African and Caribbean cultural foods primarily to the black community. The tenant had spent $150,000 in leasehold improvements when it took over the lease in 2013. The lease included two further five-year renewal options, upon delivery of written notice at least six months before the lease expired. Although the tenant attempted to contact the landlord, both before and after the notice deadline, to start the renewal process, the landlord appeared to have avoided its telephone calls. The tenant brought an application for relief from forfeiture … Read More
Construction Arbitrator | Reasonable Hourly Rate | Good Availability
Construction arbitrators must be able to arbitrate efficiently and at the pace required by the parties, disputes ranging from simple renovations and repair, to complex multi-party multi-staged projects. The ability to understand construction stages and complexities of design, architecture, engineering and project management, and technical dimensions of a construction dispute are the hallmarks of an effective construction arbitrator. Sole Arbitrator – $450.00 per hour, plus HST Experience In his practice here in Ontario, and when practicing in Dubai and Bermuda, David has been involved in a wide array of construction disputes, including, but not limited to project development, project finance, infrastructure and construction disputes, including matters involving parking garages, road building, residential house construction and renovation, condo development and financing disputes, numerous joint venture disputes, matters involving demolition, collapse, fire and flood, as well as contract disputes concerning construction quality and warranties; and labour disputes in the construction industry. Arbitrator … Read More
Ontario Bans Commercial Evictions During COVID-19: Seven Things You Need to Know
As predicted in our previous blog, B.C. Bans Evictions if Commercial Landlords Fail to Apply to CECRA: A Similar Ban Coming to Ontario?, the Ontario Government announced yesterday that it had passed legislation to protect commercial tenants from evictions and having their assets seized by their landlord during COVID-19. After British Columbia, Alberta and Saskatchewan took steps in the last two weeks to protect small business tenants from landlords that choose not to apply for the Canada Emergency Commercial Rent Assistance (CECRA) program, Ontario Premier Doug Ford finally followed through on his promise to protect small business tenants during COVID-19. On June 18, 2020, Bill 192, Protecting Small Business Act, 2020 (the “Act”) received Royal Assent, and officially amended the Commercial Tenancies Act to prohibit landlords, that are or would be eligible to receive assistance under the CECRA program, from evicting tenants or exercising distress remedies in the period from … Read More
B.C. Bans Evictions if Commercial Landlords Fail to Apply to CECRA: A Similar Ban Coming to Ontario?
Although the Canada Emergency Commercial Rent Assistance Program (CECRA) opened for applications last week, complaints about the program have continued from both small business tenants and commercial landlords. Small business tenants have complained that landlords continue to refuse to apply to CECRA, the eligibility requirement for a revenue loss of at least 70 percent was too high and the number of months of relief should be expanded. Today, Ontario extended the state of emergency until June 30, 2020 although Premier Doug Ford stressed that the gradual and safe re-opening of the economy would continue. It is unlikely most eligible tenants will be able to make their full rent payment on July 1, 2020, even if they receive rent relief for the months of April, May and June, 2020 under CECRA. Landlords have complained that the application process is too confusing, costly, time-consuming and risky. Under CECRA, landlords are required complete … Read More
Commercial Leases and Relief From Forfeiture: A Second Chance For Tenants During COVID-19?
Today is the first day landlords can apply for the Canada Emergency Commercial Rent Assistance Program (CECRA) as reported in our blog last week entitled COVID-19 | Ontario-Canada Emergency Rent Assistance Program – Part 2. Although commercial rent relief is now finally available for the months of April, May and June 2020, it has been over two months since non-essential businesses in Ontario were required to close. The gradual re-opening of some non-essential businesses, under strict guidelines, was only announced over the last few weeks. According to a recent survey by CFIB, 48% of Ontario small businesses suffered a drop in revenue of 70% or more, and 77% of Ontario small businesses suffered a drop in revenue of 30% or more. It is highly unlikely that these small businesses will survive the COVID-19 pandemic without further assistance. In addition, it has been widely reported that some commercial landlords will not … Read More
COVID-19 | Ontario-Canada Emergency Commercial Rent Assistance Program – Part 2
Further to our blog entitled COVID-19 | Ontario-Canada Emergency Commercial Rent Assistance Program, CMHC has finally released further details about the OCECRA program including the opening date of the applications portal on May 25, 2020 at 8:00 a.m. EST. Amidst reports that many landlords were refusing to apply for the OCECRA program, Premier Doug Ford pleaded with landlords to participate in the OCECRA program, stating: “It is not going to be forever. It is going to be for a few months. Help people out. You have an obligation to do that as a landlord”. Prime Minister Justin Trudeau provided a more business-oriented argument for landlords to participate in the OCECRA program, stating: “With many people discovering that we can work from home … there may be a lot of vacancies in commercial buildings over the coming months and years. Who knows exactly what the post-pandemic world will look like exactly?”. … Read More
A Primer on Using Electronic Signatures in the Age of COVID-19
Although Ontario is currently taking steps to gradually re-open the economy, it is expected that physical and social distancing measures will remain in effect for the foreseeable future (or at least until a vaccine is developed). If legal professionals, companies and individuals were not already using electronic signatures to conduct business prior to COVID-19, this may be an opportune time to consider switching from in-person signing and delivery of paper documents to remote signing of electronic documents. Electronic signatures are recognized as legally binding, provided certain requirements are met, and can be a more convenient and cost-efficient way to conduct business. Electronic signature software such as DocuSign and Adobe Sign are popular. In Ontario, the Electronic Commerce Act, 2000, S.O. 2000, c. 17 (the “Act”) governs the use and legal validity of electronic signatures. The Act expressly provides that a legal requirement that a document be signed or endorsed is … Read More
COVID-19 | Ontario Announces More Businesses to Reopen During First Stage
Following on our previous blog last week entitled COVID-19 | Ontario Allows More Businesses To Reopen Soon, the Ontario government announced today plans for stage 1 to reopen the province, including allowing more businesses to reopen and/or relaxing restrictions on the delivery of goods and services. While the reopening of more businesses is welcome news after eight weeks in quarantine, Premier Doug Ford warned that individuals must still continue to practice social and physical distancing, and businesses should only reopen if they are ready to comply with the strict public health guidelines. We cannot risk moving one step forward, but moving two steps back. The following is a list of some businesses that may reopen or expand their services on the following dates: May 16, 2020 Golf courses may open to the public but clubhouses only for washroom access and restaurants only for take-out (previously, golf courses could only prepare … Read More
COVID-19 | Ontario Allows More Businesses To Reopen Soon
Following on the Ontario government’s announcement last week allowing a select few businesses to re-open earlier this week, there was another announcement yesterday allowing more businesses to re-open under the same strict public and health safety guidelines. The following is a list of businesses that may re-open, and their scheduled re-opening dates over the next week: May 8, 2020: Garden centres and nurseries can re-open for in-store payment and purchases (previously, these businesses could only offer curbside pick-up and delivery); May 9, 2020: Hardware stores and safety supply stores can re-open for in-store payment and purchases (previously, these businesses could only offer curbside pick-up and delivery); May 11, 2020: Retail stores with street entrances can re-open but they can only offer curbside pick-up and delivery (previously, non-essential businesses were required to be closed). Small businesses that are planning to re-open are reminded to follow public and health safety guidelines including The … Read More
COVID-19 / Coronavirus: Urgent Hearings in Small Claims Court
Since March 16, 2020, all hearings in the Ontario Small Claims Court have been suspended due to the COVID-19 pandemic. Although the Superior Court of Justice has had procedures in place to bring an urgent civil or commercial list hearing since March 15, 2020, the Small Claims Court was left without the ability to hear urgent motions and garnishment hearings until today. Today, the Chief Justice of the Superior Court of Justice released the updated Notice Regarding the Suspension of Small Claims Court Operations to outline the procedure to request an urgent hearing in Small Claims Court and to provide guidance on the type of matters a judge may find to be urgent. Urgent hearings may include: Cases in which a judgment debtor has an outstanding warrant for arrest issued in relation to a Small Claims Court proceeding; or Time-sensitive cases that would result in immediate and serious financial hardship … Read More
COVID-19 | Ontario to Permit Some Businesses to Reopen on May 4
On May 1, 2020, the Ontario government announced that a select few businesses will be allowed to re-open on Monday, May 4, 2020 but with strict public health and safety measures in place. Most of these businesses are seasonal businesses and some essential construction projects. This announcement follows from the release earlier this week of the three-staged Framework for Reopening our Province which included stage 1 to reopen certain Ontario businesses gradually under strict guidelines in order to allow the economy to return to some sense of normalcy while continuing to safeguard the public and limit health risks. The following is the list of businesses that may be re-opened on May 4, 2020: Garden centres and nurseries – but they are restricted to alternative methods of sale such as curbside pickup and delivery; Lawn care services and landscaping services; Essential construction projects including shipping and logistics; broadband, telecommunications and digital … Read More
A Guide to Urgent Residential Eviction Orders and Enforcement During COVID-19
On March 19, 2020, the Ontario Superior Court of Justice suspended the eviction of residents from their homes, pursuant to eviction orders issued by the Landlord and Tenant Board or writs of possession, during the COVID-19 pandemic, unless ordered otherwise in an urgent motion. On the same day, the Landlord and Tenant Board suspended all hearings related to eviction applications and suspended the issuance of eviction orders, unless the matter related to an urgent issue such as an illegal act or a serious safety threat. Urgent Eviction Order or Urgent Enforcement? 1. If the landlord requires an urgent eviction order, then the landlord should proceed to file an urgent application with the Landlord and Tenant Board. 2. If the landlord already has an eviction order (or writ of possession) and requires urgent enforcement, then an urgent motion should be made to the Superior Court of Justice under Rule 60.17 of … Read More
COVID-19 | Ontario-Canada Emergency Commercial Rent Assistance Program
On April 16, 2020, the Federal government announced the Canada Emergency Commercial Rent Assistance Program (CECRA) but could not provide further details because discussions with the provinces and territories were required for the administration and implementation of the program. Today, the Ontario government announced the Ontario-Canada Emergency Commercial Rent Assistance Program (OCECRA) and provided further details on the eligibility requirements and the terms of the forgiveable loan. The OCECRA is expected to be operational in mid-May 2020, and will provide commercial rent relief for the months of April and May (retroactively) and June 2020. We summarize the OCECRA as follows: Ontario-Canada Emergency Commercial Rent Assistance Program – Updated May 7, 2020 What is the purpose of OCECRA? To provide relief to landlords and small business tenants affected by COVID-19 by providing forgivable loans to landlords to cover 50% of the gross monthly rent for April, May and June 2020. Who … Read More
Ontario Extends Mandatory Closure of Non-Essential Businesses
On April 23, 2020, the Ontario government announced that all emergency orders under the Emergency Management and Civil Protection Act, including the mandatory closure of non-essential businesses, have been extended until May 19, 2020 (Updated: May 7, 2020). A list of the extended orders and the current revocation dates are found here. Although the closure of non-essential businesses is necessary to fight the COVID-19 pandemic, many small businesses have been closed for over a month and will be closed for at least another two week period with no or very minimal revenue coming in. A survey conducted by the Canadian Federation of Independent Business (CFIB) indicated that 40% of Canadian small businesses were worried the pandemic would force them to permanently close. These small businesses, which form the backbone of the economy, are unlikely to survive without further assistance from the federal, provincial and municipal governments and/or cooperation from landlords, … Read More