July 31st, 2018
On July 26, 2018, the Court of Appeal affirmed a judgment enforcing a commercial lease indemnity entered into by Parc Downsview Park Inc. and Penguin Properties Inc., a real estate development firm. The appellant, Penguin, sought to avoid enforcement of the indemnity, alleging that it had been procured through oral misrepresentations. Jonathan Lisus and Zain Naqi represented the successful landlord, Parc Downsview, arguing that Penguin was a sophisticated party, and that no oral representations were made or relied upon. Parc Downsview was also successful in its cross-appeal on the quantum of damages. It argued that the landlord had no duty to mitigate its damages and was entitled to rental payments up to the end of the lease term, expiring in 2020. Writing for the majority of the Court of Appeal, Justice Brown accepted this argument, citing the “onerous language of the indemnity” including Penguin’s “absolute and unconditional” covenant to pay rent. He found that implying a duty to mitigate “could result in a situation where [Parc Downsview] is left holding the bag – a result contrary … to the plain language of the indemnity.”
The Court’s decision affirms the importance of respecting the plain language of agreements concluded by sophisticated commercial parties.The decision is available here: https://www.canlii.org/en/on/onca/doc/2018/2018onca666/2018onca666.html?resultIndex=1.
July 25th, 2018
Shaun Laubman will be the Chair of the Ontario Bar Association’s Civil Litigation Executive for the 2018-2019 term. The Executive represents civil litigators from across the province and is instrumental in lobbying for improvements to the civil justice system in Ontario.
July 19th, 2018
Paul was a guest instructor at the program’s 39th annual edition on July 10 and 12, 2018.
July 4th, 2018
Superior Court of Justice issues ruling clarifying limits of s. 137 ‘Anti-SLAPP’ and approves defamation action based on hate speech for trial.
In a ruling released on June 20, the Superior Court of Justice dismissed the defendant, Rananedra Bannerjee’s, motion to dismiss a defamation action based on hate speech broadcast on the internet. The Court held that the defendants’ videotaped and broadcast comments about the plaintiff were hate speech which did not attract the public interest requirement of s. 137 and allowed the action to proceed to trial. The ruling also provided clarity regarding the issue of ‘embedding’ hateful or defamatory comments within a larger narrative that may have public interest components in it. The decision can be read here: http://canlii.ca/t/hsm3j
June 18th, 2018
In a complex case involving the interpretation of a rent review clause in a 99-year ground lease, LOLG successfully argued that the principles of issue estoppel prohibited the re-litigation of a valuation approach decided by an arbitral panel in 1990. LOLG’s client, the tenant, was represented by Jonathan Lisus, Shaun Laubman and Brad Vermeersch. They also successfully argued that principles of modern contractual interpretation compelled an interpretation that would not destroy the economic viability of the rental apartment building owned by the client. The landlord was arguing for an interpretation of the rent review clause that would have seen the land market value calculated based on the potential for condominium development despite the fact condos could not be built on the property due to the long-term ground lease. The decision addressed the evolution of the case law in this area since the 1970s and rejected the landlord’s contention that cases interpreting similar contractual language were binding precedent. The case was heard on the Commercial List. The Court’s decision can be found here: 2018 06 15 – Reasons for Decision (Oct 31_18 & Apr 14_18 hearings)