





CITATION:
Rahawanji v. Gwendolyn Shop (1973) Ltd., 2011
          ONCA 771



DATE: 20111207



DOCKET: C54204



COURT OF APPEAL FOR ONTARIO



Blair, Epstein JJ.A. and Pardu J. (
Ad hoc
)



BETWEEN



Souad Mohd Ali Rahawanji and Samer Rahawanji



Applicants (Appellants in appeal)



and



The Gwendolyn Shop (1973) Ltd. and 1659295 Ontario Ltd.



Respondents (Respondents in Appeal)



Alexandra Lev-Farrell, for the applicants (appellant in
          appeal)



R. Barrett, for the respondents



Heard:
December 5, 2011



On appeal from the decision of Justice John C. Murray of the
          Superior Court of Justice dated August 12, 2011.



APPEAL BOOK ENDORSEMENT



[1]

The appellants seek to set aside the order of Murray J. dismissing their
    application for relief from forfeiture in relation to their tenancies of two
    commercial leases in a small shopping plaza in downtown Oakville.  Ms.
    Lev-Farrell argues strongly on their behalf that the application judge erred in
    failing to take into account that relief from forfeiture is generally granted
    where all that is involved is the question of monetary arrears and in failing
    to address him mind to whether the default could be cured on terms in order to
    avoid the loss of their businesses.

[2]

We do not agree.  Relief from forfeiture is a discretionary remedy and
    is not granted as a matter of course.  As Doherty J.A. noted in
Ontario
    (Attorney General) v. 8477 Darlington Crescent
, 2011 ONCA 363, at para. 93,
    both in civil and criminal cases:

Relief from forfeiture is very much the exception
    and will be granted only where the party seeking that remedy clearly makes the
    case that forfeiture would be an inequitable and unjust order in all the
    circumstances.

[3]

This is particularly so with respect to a commercial lease.  Here, we
    are satisfied that the application judge considered the relevant circumstances
    and he was particularly entitled to take into account the fact that the
    appellants had not proceeded to the hearing of the application in a timely
    fashion and that they had not paid any rent in the meantime in spite of the
    landlords offer to accept payment on a without prejudice basis.  There were
    arrears of seven months rent at the time of the hearing.  In addition, there
    is no evidence of any real prejudice to the appellants if relief from
    forfeiture is not granted in the sense that that, in itself, would result in
    the demise of their businesses.

[4]

Accordingly, we see no error in the exercise of the application judges
    discretion and the appeal is dismissed.

[5]

The appellants have requested time to relocate.  We are advised that
    rent has now been paid to the end of December as one of the terms of the
    appeal.  Provided the rent for the two units for the month of January is paid
    to the landlord by December 17, 2011, the appellants shall be entitled to
    remain in the premises under the terms of the leases until January 31, 2012. 
    Failing payment of the January rent on those terms, the appellants must vacate
    by December 31, 2011.

[6]

Costs of the appeal to the respondent, fixed in the amount of $5000 all
    inclusive.  The costs are to be paid by December 17, 2011 as well, as a term of
    the appellants continued occupation until January 31, 2012.


