COMMERCIAL TENANCIES - Landlord’s remedies - Recovery of rent - Assignment of tenancy

Law360 Canada (September 15, 2022, 6:22 AM EDT) -- Appeal by the landlord from the dismissal of its summary judgment/summary trial application. The respondent was a tenant in the landlord’s mall under a lease that expired in 2024. The tenant closed its store in the mall in June 2019 and stopped paying rent in April 2020. In July 2020, the landlord filed a Notice of Civil Claim for unpaid rent. Then, in October 2020, the landlord brought an application for summary judgment or, alternatively, judgment by summary trial. The tenant took the position that there were two genuine issues that could provide a defence and required further discovery before trial. First, the tenant submitted that the landlord’s refusal to consent to an assignment of the lease in December 2019 was a breach of the lease as well as a breach of its duty of good faith contractual performance. Secondly, the tenant submitted that the landlord’s failure to pursue opportunities to re-let the premises was a breach of its duty of good faith contractual performance and its duty to mitigate avoidable loss. The chambers judge concluded that the tenant should be permitted to explore those potential defences at discovery and dismissed the summary judgment/summary trial application....
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