“At the very least, the societal realities pertaining to Black businesspeople like the Tenants must be factored into the exercise of the Court’s discretion in considering equitable remedies like injunctions and relief from forfeiture.”
Counsel for the tenant, Miguna Miguna, managing partner of KMM Lawyers, says that while there are other decisions dealing with anti-Black racism in residential tenancy matters, this is the first concerning a commercial landlord.
“This is a very, very important decision,” Miguna says. “In fact, I think it is a seminal or landmark decision, because not once has the judiciary pronounced itself in Canada on the issue of anti-Black racism, vis a vis commercial leases, and commercial landlords.”
At issue was the 1500-square-foot space in the Keele Sheppard Plaza, at 3310 Keele Street in Northwest Toronto. The site has been home to Elias Restaurant since 2013. Elias’ operators had a five-year lease, with an option to extend for two additional five-year terms. Despite the COVID-19 pandemic, largely due to Elias’ takeout business, the tenants managed never to miss a rent payment. They had also spent $150,000 on renovations.
Under the lease agreement, the tenant was required to provide written notice that they wish to exercise their option to extend the lease six months prior to the expiration of their five-year term. The tenant failed to provide written notice but had attempted multiple times, both before and after the cut-off date, to get in touch with the landlord and the landlord’s property manager. The process was complicated by the fact that the landlord had changed in 2016 and the lease directed that written notices be delivered to the former landlord’s office address. When it took possession, the new landlord also stated that all issues concerning tenancy were to go to the property manager. Morgan said the situation regarding with whom the tenant was required to communicate was “an admittedly confusing one.”