Here is Madam Justice Power's August 2, 2017 decision dismissing Westsea's application to strike my claims on the basis of res judicata; allowing my application to amend my pleadings, and granting costs in my favor, payable by Westsea to me forthwith: Madam Justice Power's decision And here is the entered Order attaching Further Amended Notice of Civil Claim.
Westsea has elected to appeal this, which should not be all that surprising. However, I do find myself marginally surprised if only because I really don't believe they have very strong grounds to do so. If anything, they may have some grounds for appealing her decision to grant my costs payable forthwith, because Judge Power didn't provide much rationale for doing so. But Westsea has, in my view, scant grounds to appeal her decision on its merits, even if she may have slightly and in insignificant ways mis-stated aspects of the law or the facts. This is unlike Westsea's appeal of Judge MacKenzie's decision, which he practically wrote to be appealed and to have the issues regarding disclosure re-considered by the Court of Appeal.
Speaking of which, the hearing for the appeal of Mr. Justice MacKenzie's Sept 23, 2016 decision in which he said Westsea could not charge its legal costs to leaseholders under the lease, is upcoming on October 6, 2017. Because of the interesting (and brilliant, I would say) way he wrote his decision, there are several interesting issues for the court to consider, including:
- is there a different category of new evidence the CA should consider in order to review the lease on the basis that it is a standard form contract (based on SCC Ledcor (2016))
- is there a set of legal tests to determine how the lessor should apply prudence and reasonable discretion under this kind of residential lease (based on SCC Ontario (Energy Board) (2015))
- is there a duty on the lessor to reasonably accommodate requests for information that affect the interests of leaseholders, and does this flow from a duty to be honest and not to mislead in contractual relations (based on SCC Bhasin v. Hrynew, (2014))
These are the novel issues the CA will have to grapple with. There are other factual and mixed fact/law issues the court will need to deal with, including:
- is the lease appropriately characterized as a residential lease and not a commercial lease, thus rendering obsolete a line of precedent Westsea relies upon that applies primarily to commercial leases
- is there a public interest issue in this lease that affects how it should be interpreted (based on SCC Tercon (2010))
- are Westsea's "convenants" under the lease confined to their expressly stated large "C" "Covenants" or do they also include small 'c' covenants within the lease.