Motion judge’s finding was palpable and overriding error

Property

Motion judge’s finding was palpable and overriding error

C group of companies operated marina located on premises owned by landlord 212 Inc.. C group became insolvent. Receiver was appointed and continued to operate marina. When marina’s lease expired, 212 Inc. leased location to new tenant and brought motion to establish its right to occupation rent from receiver. Motion judge determined receiver was not obligated to pay occupation rent. 212 Inc. appealed. Appeal allowed. Receiver occupied marina and was liable to pay occupation rent. Receiver deprived 212 Inc. of its rights of use of premises in manner that constituted occupation. Motion judge’s finding to contrary was palpable and overriding error. Where deprivation of use is tantamount to actual occupation, liability to pay occupation rent is engaged. Motion judge erred by focusing primarily on “deprivation of use”, when there was admitted possession and evidence of actual occupation, and by conflating “deprivation of use of premises” in real property sense with “deprivation of use” in more general cost/benefit or economic sense. Presumption in favour of obligation to pay rent had not been rebutted, and no equitable considerations applied.
Crate Marine Sales Ltd., Re (June 3, 2016, Ont. C.A., Alexandra Hoy A.C.J.O., R.A. Blair J.A., and L.B. Roberts J.A., CA C61243) Decision at 259 A.C.W.S. (3d) 278 was reversed. 267 A.C.W.S. (3d) 272.