Notice of Application (Civil)

R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE

14.05 (1) The originating process for the commencement of an application is a notice of application (Form 14E, 14E.1, 68A or 73A) or an application for a certificate of appointment of an estate trustee (Form 74.4, 74.5, 74.14, 74.15, 74.21, 74.24, 74.27 or 74.30). R.R.O. 1990, Reg. 194, r. 14.05 (1); O. Reg. 484/94, s. 5; O. Reg. 43/14, s. 5 (1).

(1.1) Form 14F (Information for court use) shall be filed together with a notice of application in Form 14E, 14E.1, 68A or 73A. O. Reg. 260/05, s. 2; O. Reg. 43/14, s. 5 (2).

(2) A proceeding may be commenced by an application to the Superior Court of Justice or to a judge of that court, if a statute so authorizes. R.R.O. 1990, Reg. 194, r. 14.05 (2); O. Reg. 292/99, s. 1 (2).

(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust;

(b) an order directing executors, administrators or trustees to do or abstain from doing any particular act in respect of an estate or trust for which they are responsible;

(c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation;

(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;

(e) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges;

(f) the approval of an arrangement or compromise or the approval of a purchase, sale, mortgage, lease or variation of trust;

(g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application;

(g.1) for a remedy under the Canadian Charter of Rights and Freedoms; or

(h) in respect of any matter where it is unlikely that there will be any material facts in dispute requiring a trial. R.R.O. 1990, Reg. 194, r. 14.05 (3); O. Reg. 396/91, s. 3; O. Reg. 537/18, s. 2.

14.06 (1) Every originating process shall contain a title of the proceeding setting out the names of all the parties and the capacity in which they are made parties, if other than their personal capacity. R.R.O. 1990, Reg. 194, r. 14.06 (1).

(2) In an action, the title of the proceeding shall name the party commencing the action as the plaintiff and the opposite party as the defendant. R.R.O. 1990, Reg. 194, r. 14.06 (2); O. Reg. 131/04. s. 7.

(3) In an application, the title of the proceeding shall name the party commencing the application as the applicant and the opposite party, if any, as the respondent and the notice of application shall state the statutory provision or rule, if any, under which the application is made. R.R.O. 1990, Reg. 194, r. 14.06 (3).

(4) Subrules (1), (2) and (3) do not apply to proceedings under Rules 74 and 75. O. Reg. 484/94, s. 6.

Singh v. 2022809 Ontario Inc., 2013 ONSC 6644 (CanLII)

[1] This is an application for the determination of rights that depend on the interpretation of a commercial lease contract, pursuant to Rule 14.05 (3)(d) of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194; and for a declaration pursuant to Rule 14.05(3)(g), that the applicant has validly exercised an option to renew under the lease.

[9] The respondent argues the 6% rent increase and phrase in the above-clause stating the parties “will negotiate to renew” form condition precedents to the exercise of the option. He claims the applicant’s failure to fulfill these pre-conditions render the option to renew invalid. He also submits the exercise of the option was not communicated in a clear and unambiguous manner. He states the applicant is in breach of his covenants to annually increase the rent by 6% and insure are defaults, which also invalidate the option to renew.

[10] The argument that the option was not exercised in a clear and unambiguous manner relies on the fact that the applicant’s former lawyer’s letter threatened legal enforcement of the right. This argument does not succeed. The statement of the applicant’s wish to exercise his five year renewal option was clear, explicit and unambiguous and unequivocal. The expression of an intended legal enforcement of the right to the option does not make it less so.

[11] I also reject the argument that the term “the parties will negotiate to renew” denotes a condition precedent to the applicant’s right to exercise the option under the lease. There is no provision in the agreement requiring negotiations before the exercise of the option to renew. The option for five year renewal is there for the tenant “subject to 6% increase in the rent and additional rent.” Considering the lease agreement as a whole, this term is referable to negotiations in the context of the option to renew having been exercised. Once exercised it is to be followed by a negotiation of the 6% increase and additional rent. Logically and for business of efficacy, this is to occur after the notice of an intention to renew has been given. When the respondent received the letter indicating the applicant wanted to exercise his option to renew, he did not negotiate. Instead he issued a refusal to renew and a demand to vacate.

[12] The term of the lease making the renewal subject to a 6% increase in rent has been acceded to by the applicant. It is apparent in all the circumstances that he provided the rent cheques with the 6% increase in compliance with this term, and as a good faith negotiation of the increase. There has been no request or negotiation of “additional rent” by the respondent. The failure on the part of the respondent to negotiate does not invalidate the applicant’s right to exercise his option. The term requiring a negotiation is not a condition precedent to the right of the applicant to exercise his option to renew. In the absence of a negotiation for additional rent, after he clearly made his wish known, the applicant is entitled to renew on the basis of the 6% percent increase for a further five year term.

[15] On the first alleged default, I find the respondent has waived the increase as of October 2010. He admits to the waiver in his affidavit when he states “one reason the respondent did not take any action regarding the applicant’s breach was because the breach occurred mid-lease, and the respondent wanted the lease term to end without event.”

[16] The applicant’s evidence about this alleged breach is that the annual 6% increase was waived by the landlord as of October 2010, in consideration of his displaying advertisements for other tenants. Whatever the reason, the undisputed course of conduct whereby the rent was paid without the 6% annual increase, and was accepted without complaint by the respondent over the past three years clearly supports a waiver by conduct of the annual increase on the part of the landlord. This waiver was relied upon by the tenant. The landlord’s argument, now three years later, alleging default on account of the applicant’s reliance on his waiver of the rent increase does not succeed. It is not a ground upon which the applicant is found to be in default under the Lease. The respondent is not entitled to now raise the issue as an obstacle to the applicant’s right under the option to renew.