



COURT OF APPEAL FOR ONTARIO

CITATION: Windsor-Essex Catholic District
    School Board v. 2313846 Ontario Limited o/a Central Park Athletics, 2022 ONCA
    235

DATE: 20220323

DOCKET: C69463

Fairburn A.C.J.O., Paciocco and
    Sossin JJ.A.

BETWEEN

Windsor-Essex Catholic District
    School Board and Conseil Scolaire Catholique Providence

Applicants (Respondents)

and

2313846 Ontario Limited o/a
    Central Park Athletics

Respondent (Appellant)

Paul J. Pape and Cristina Senese, for
    the appellants

Jessica A. Koper and Sandra Dawe, for
    the respondents

Heard: March 17, 2022 by video
    conference

On appeal from the judgment of Justice
    Munroe of the Superior Court of Justice, dated April 23, 2021.

REASONS FOR DECISION


[1]

This is an appeal from a decision interpreting a
force majeure

clause contained in commercial leases between the respondent school boards
    and the appellant, a commercial multi-purpose, sporting facility.

[2]

The respondents rented space from the appellant. As a result of the
    province wide lock-downs owing to COVID-19, the appellant was unable to open
    its doors from March 17 to August 11, 2020 (the relevant period), and the
    respondents were unable to use the facility.

[3]

The respondents brought an application for a decision that the
force
    majeure

clause in their respective leases should apply to abate the
    rent during the relevant period. That argument found favour with the
    application judge who found that, considered within its proper context, the
force
    majeure

clause applied and rent was abated.

[4]

There is no dispute that the application judge was right in finding that
    the government lockdowns, as a result of COVID-19, triggered a
force
    majeure

event, as defined in the leases. Nor is there dispute that
    the appellant could not provide the respondents with the leased space for its
    intended and contracted use because of the lockdowns. The dispute lies in the
    effect of the triggering event on the parties contractual obligations.

[5]

The parties agree that the application judge accurately
    summarized their positions on the application. To this end, the application
    judge summarized the appellants argument as follows:

[The appellant] argues that under the lease provisions, the
    triggering event excused the landlord from providing the leased premises but
    did not excuse the tenants from paying rent. The school boards obligation to
    pay rent was not impacted by any pandemic order. Consequently, under the lease,
    there is no basis to cease paying rent. To bolster this position, [the
    appellant] emphasizes the language in Clause 15.14: In the event
the Landlord claims a Force Majeure
has prevented the
    Landlord from enabling the Tenant to make use of the Leased Premises or operate
    its programs (emphasis added), asserting that [the appellant] does not claim
    and never has claimed a
force majeure
.
This fact, according to
    [the appellant] negates the following rent abatement provision.

[6]

Clause 15.14 reads as follows:

In the event
the Landlord claims
a
    Force Majeure has prevented the Landlord from enabling the Tenant to make use
    of the Leased Premises or operate its programs in the Centre, Rent and
    Additional Rent shall fully abate during such period until the Landlord has
    restored the ability of the Tenant to use the Leased Premises and operate its
    programs in the Centre. [Emphasis added.]

[7]

Ultimately the application judge rejected the appellants argument,
    finding that the appellant, because of the government lockdown orders, was
    prevented from performing a term of the lease, providing the leased space for its
    contracted use. The application judge determined that the consequences were
    twofold under the lease: (1) the landlord was excused from its contractual
    obligation to provide the leased space; and (2) the contractual rent obligation
    of the tenants was abated during the relevant period.

[8]

The appellant argues that the application judge erred by reading the
    words the Landlord claims out of Clause 15.14. The appellant argues that the
    Landlord did not claim a
force majeure
event, (even though it is
    recognized that there was a
force majeure

event.) According to the appellants argument, only that
    claim could cause the abatement of the rent. The failure of the trial judge to
    give effect to those words  the Landlord claims  is said to constitute an
    error of law.

[9]

Respectfully, we cannot accept the appellants position. We do not see
    the application judge as having ignored the expression the Landlord claims.
    Rather, read as a whole, the reasons make clear that the application judge was
    alive to the appellants argument, and particularly to the emphasis upon those
    words, but rejected the submission that they held the meaning that the
    appellant continues to advance in this court.

[10]

This
    is not a case involving an extricable error of law. Rather, it is a case about
    contractual interpretation involving questions of mixed fact and law and
    therefore engages the standard of palpable and overriding error. We see none.

[11]

In
    an exercise of contractual interpretation, the application judge first,
    accurately recounted the appellants argument and second, rejected that
    argument. It was open for him to do so. The reasons are clear as to how he
    resolved the matter. The application judge found that the triggering event was
    the lockdown, which resulted in the closure of the appellants facility. When
    that facility was closed by the appellant, it could not and did not provide the
    respondents with the leased space. According to Clause 15.14, once that
    happened, the rent had to  shall  fully abate during the relevant period.

[12]

The appeal is dismissed.

[13]

Costs in the all-inclusive amount of $15,000 will be paid by the
    appellant to the respondents.

Fairburn A.C.J.O.

David M. Paciocco J.A.

L. Sossin J.A.


