In Parkland Corporation v. Caledon Fuels Inc., 2024 ONSC 2361, the Ontario Superior Court of Justice granted an injunction which prevented a party to a long-term lease and supply agreement from breaching certain negative covenants contained in that contract. The Applicant and Respondent were both parties to an agreement under which the Applicant was made the exclusive supplier of petroleum products to a gas station which it subleased to the Respondent. In January of 2024, the Respondent notified the Applicant that it intended to enter into arrangements with another supplier, in contravention of the agreement. The Applicant brought an urgent application seeking a permanent injunction, to prevent the Respondent from doing so. In its decision, the Court’s analysis on the injunctive relief sought by the Applicant followed the Ontario Court of Appeal’s decision in 711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, where that Court cited … Read More
Court of Appeal Upholds Judicial Ruling Recognizing Anti-Black Racism in Commercial Lease Dispute
In the recent Court of Appeal decision of 8573123 Canada Inc. (Elias Restaurant) v. Keele Sheppard Plaza Inc., 2021 ONCA 371, the Court of Appeal upheld a Superior Court ruling made against a commercial landlord which made note of anti-black racism against the tenant and granted relief from forfeiture based on principles rooted in equity, sparing the tenant from eviction. See our blog regarding the original ruling. In this case the landlord of a commercial plaza unit, sought to evict a husband-and-wife team of restauranteur tenants who ran an African/Black/Caribbean restaurant, catering service and bar. The Landlord’s position was that the tenant had failed to give proper notice with respect to their option to renew and was subsisting in the unit as an overholding tenant. The tenant brought an application before the court for relief from forfeiture and sought the courts assistance in exercising it’s right to continue occupying the … 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
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
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
Corporate Governance Considerations During the Covid-19 Pandemic
Corporate governance issues are top of mind for directors and businesses who are attempting to navigate through the Covid-19 Pandemic related closures and emergency measures. Boards of Directors still need to operate and make decisions in the best interests of the corporation, and this can involve tough decisions, particularly where there is little guidance as to how measures to lift Covid-19 related restrictions will play out. By example, while it may be in the best interest of investors and shareholders that the Board act to lay off employees in the short term, the impact of staff shortages when Covid-19 restrictions are lifted may pose it’s own challenges. Many businesses must consider how to hold governance meetings during Covid-19 times. On March 30, 2020, Ontario passed an Order under the Emergency Management and Civil Protection Act (EMCPA), (Ontario Regulation 107/20) entitled “Meetings for Corporations” making temporary changes to the Business Corporations … Read More
COVID-19 / Coronavirus: Rent Relief for Small Businesses Is Coming
On April 16, 2020, the Federal government announced the Canada Emergency Commercial Rent Assistance (CECRA) program to assist small businesses with their rent payments during the COVID-19 crisis. The CECRA program will provide loans and/or forgiveable loans to commercial property owners who will be expected to pass on the benefit to small businesses by lowering or forgoing rent for April (retroactively), May and June 2020. Further details of the program are expected to be released soon and the program will be administered by the provincial and territorial governments. Although the Ontario Superior Court of Justice had issued an Order on March 19, 2020 suspending the eviction of residents from their homes (unless ordered otherwise under an urgent motion), there was no similar protection against evictions for commercial tenants which included many small business owners. Commercial rent payments are typically the second largest operating expense for most small businesses after payroll … Read More
Small Business Relief Resources During COVID-19 / Coronavirus
On April 14, 2020, the Ontario legislature passed a bill during an emergency sitting to extend the state of emergency to May 12, 2020. The state of emergency in Ontario was initially declared on March 17, 2020, and subsequently extended to April 14, 2020. Under the Emergency Management and Civil Protection Act, any further extensions must be passed by the legislature, and can only be extended for additional periods of no more than 28 days. On May 12, 2020, the state of emergency was extended to June 2, 2020 (Updated: May 12, 2020). Although the extension of the state of emergency does not automatically apply to individual orders such as the closure of non-essential businesses, it is expected the mandatory closure of non-essential businesses will be extended as well to combat the COVID-19 pandemic. In addition, many small businesses (deemed essential) have voluntarily closed due to safety concerns for their … Read More
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