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Commercial Lease Remedies During The COVID-19 Pandemic – Real Estate and Construction – Canada – Mondaq News Alerts

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In a series of recent cases, courts in Quebec have prevented
landlords from terminating commercial leases and/or have reduced
rent payable during periods where tenants were forced to close due
to COVID-19, particularly where landlords did not apply for the
Canada Emergency Commercial Rent Assistance program
(CECRA). 

In Ontario and British Columbia1,
similar measures have temporarily been enacted into law to prevent
landlords from terminating leases or exercising distress rights if
they are or would otherwise be eligible for CECRA; however, these
measures do not relieve tenants of their obligation to pay rent or
give the tenant the right to pay reduced rent.2 The expiration of these measures may result
in an influx of landlord-tenant disputes and challenge courts to
apply existing common law principles to unfamiliar
circumstances.

Court cases

Quebec courts have begun to temporarily prevent landlords from
terminating commercial leases for rental defaults arising from the
forced closure of retail establishments due to COVID-19. In a
majority of those decisions, courts have granted tenants temporary
injunctive relief pending the determination of the matter on its
merits. In other cases, tenants have succeeded at trial and been
relieved of the obligation to pay rent during periods of forced
closures due to, among other things, the landlord’s inability
to provide peaceable enjoyment of the premises for their intended
use or the fact that the tenant resumed paying full rent following
the forced closures. 

Courts outside Quebec are unlikely to rely on those same
principles in pandemic-related lease disputes. However, the
decisions canvassed in the early stages of the pandemic signal a
willingness by the courts to use their power to protect tenants
affected by the impacts of COVID-19. This is particularly true in
situations where landlords do not take advantage of CECRA or other
government initiatives to mitigate the consequences of the
pandemic. As such, commercial tenants outside Quebec may be able to
achieve similar results by interlocutory injunctions and/or relief
from forfeiture.

Interlocutory injunctions

An interlocutory injunction is a form of temporary relief
granted by courts to prevent a party from performing certain acts.
In Quebec, courts have used this relief to prevent landlords from
terminating leases in situations where the pandemic has caused the
forced closure of retail establishments. To obtain such relief, a
tenant must establish that its claim has some merit, it will suffer
harm that cannot be cured by monetary compensation (such as the
loss of its business or customer base) and the harm it may suffer
if the injunction is not granted is greater than the harm to the
landlord.

The test for interlocutory injunctions is substantially the same
throughout Canada, suggesting that similar decisions may be reached
at the interim relief stage, particularly when a landlord is
eligible but has refused to apply for CECRA. This remedy is likely
to be a commercial tenant’s first recourse if a landlord seeks
to terminate a lease when and where legislative protections no
longer apply.

Relief from forfeiture

A court may grant an interlocutory injunction to a tenant either
pending or as part of its discretion to grant relief from
forfeiture, a remedy available to commercial tenants in Ontario,
British Columbia and Alberta that gives courts the power to
reinstate a tenancy as they see fit. At least one reported decision
in Ontario has already considered such relief in light of COVID-19
and would have restored the tenancy.3

Generally, courts will consider four criteria when the
tenant’s alleged default is the non-payment of rent, including
whether or not:

  • the tenant acted honestly and in good
    faith;
  • the tenant refused to pay rent
    outright;
  • the landlord suffered a serious loss
    from the delay in paying rent; and
  • the rental arrears were
    significant.

The recent Ontario Second Cup decision signals a willingness to
look at rental defaults in the context of the pandemic. In that
case, the tenant’s rental arrears amounted to 25.5% of rent,
which was considered insignificant in light of the
“unprecedented pandemic that shut down most of [the
tenant’s] operations and the country’s economy.”
Tenants may be able to make similar claims either where they ask
the landlord to forego 25% of rent as part of the CECRA program or
where the tenant can only make partial payments. A tenant’s
expressed desire to have a landlord apply for CECRA or enter into a
rent abatement or deferral agreement during the pandemic may
therefore weigh in its favour as such actions contradict an
outright refusal to pay rent.

The courts may also consider a number of other factors,
including the length of the tenancy, the history of defaults and
the tenant’s ability to bring the lease into good standing.
Where special circumstances are at play, those factors may weigh
more heavily in favour of the tenant. For example, the Ontario
decision involved a unique scenario where the tenant would have
lost the benefit of applying for a cannabis retail store licence
for the premises and other locations, which was of utmost
importance to the company.

Practical impact

The decisions released in the early stages of the pandemic may
be a sign of what is to come in the “new normal.” While
the statutory protections in Ontario and British Columbia have been
extended to October 30, 2020, and October 13, 2020, respectively,
the courts have signalled a willingness to effect similar results
in the absence of those protections by the application of equitable
doctrines. This trend may decrease the level of commercial
certainty and comfort that landlords have in pursuing lease
remedies for pandemic-related defaults.

While each situation must be examined case-by-case, landlords
wishing to exercise their rights and remedies under a lease are
encouraged to seek legal advice, particularly in circumstances
where they were eligible but did not apply for CECRA or believe
special circumstances are at play for their tenants. 

A tenant facing eviction for pandemic-related defaults would
also be wise to consult its legal advisors in order to identify the
full range of available rights and remedies. Further, tenants are
encouraged to keep detailed records of COVID-19-related losses
suffered and should actively engage with landlords regarding the
options available to help militate against the financial impacts of
the pandemic on both parties. 

Footnotes

1. The Alberta Commercial Tenancies Protection
Act
(Bill 23) lapsed on August 31, 2020 regarding certain
protections afforded to tenants and to date, this emergency period
(non-enforcement period) has not been extended by regulation even
though the government has the power to do so. The regulations
expire on August 31, 2023.

2. See Helping Tenants and Small Businesses Act,
2020
(Ontario) and COVID-19 Related Measures Act (British
Columbia).

3. The Second Cup Ltd. v 2410077 Ontario Ltd.,
2020 ONSC 3684.


About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the
world’s preeminent corporations and financial institutions with
a full business law service. We have 3800 lawyers and other legal
staff based in more than 50 cities across Europe, the United
States, Canada, Latin America, Asia, Australia, Africa, the Middle
East and Central Asia.

Recognized for our industry focus, we are strong across all the
key industry sectors: financial institutions; energy;
infrastructure, mining and commodities; transport; technology and
innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global
business principles of quality, unity and integrity. We aim to
provide the highest possible standard of legal service in each of
our offices and to maintain that level of quality at every point of
contact.

For more information about Norton Rose Fulbright, see
nortonrosefulbright.com/legal-notices.

Law around the world

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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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Why health and wellness will dictate real-estate planning post pandemic – Yahoo Canada Finance

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GlobeNewswire

Tencent and WIMI Hologram Continue to Explore in the Field of Unmanned Driving

HONG KONG, Oct. 27, 2020 (GLOBE NEWSWIRE) — Tailor Insight, the fintech market research organization, recently released a research report ‘Tencent and WIMI Hologram Continue to Explore in the Field of Unmanned Driving’. The so-called AR navigation, just as its name implies, uses augmented reality technology to display ordinary navigation content in the form of AR real-world presentations. By deeply fusing the real road conditions captured by the on-board camera in real-time with the AI, a virtual navigation guidance model is generated, and superimposed to the real road to create a navigation screen closer to the real vision of the driver. The newly released AR navigation by Tencent adopts lane-level precise positioning technology, which makes the navigation guidance signs “fit” more accurately and realistically as if they were on the road. Users do not need to think and react, instead, they can make the right decision according to the guidance of navigation intuitively, which greatly reduces the reaction cost of users.The AR navigation system is part of the Internet of vehicles. The new AR navigation released this time adopts the lane-level precise positioning technology, which is more in line with the needs of users and strives to enable drivers to intuitively judge the navigation route. Meanwhile, it can provide practical information such as the number of remaining parking spaces.The navigation information can be directly projected in the front of the front windshield through the mobile vehicle-mounted projection equipment. In specific applications, the AR navigation can not only display basic travel guidance such as navigation arrows and traffic signs, but also combine scene prediction and personal preferences of the user to provide targeted information that the user needs or is interested in. For example, when the user wants to buy clothes, AR navigation will present nearby merchants/discount information. When a user wants to drink milk tea, it presents nearby shops, or even enters an indoor parking lot, and guide the vehicle to an available parking space, while telling the user where the nearest elevator is. In addition, Tencent also allows merchants to update dynamic information, which means that it has bred countless possibilities for commercial realization. According to Wang Wanxin, the general manager of Tencent Auto Union, mass-produced models equipped with Tencent’s AR navigation will be on the market this year.WIMI focuses on computer vision holographic cloud services. WIMI found that the application layer has gradually become the advantage of unmanned driving in this industry, and then some demands for unmanned driving will be discovered from this industry. In fact, every step WIMI has taken so far is to respond to the market demand and to cope with it.From the perspective of the value of the industrial chain, WIMI Hologram acts as an intermediate supplier, connecting the SDK operating platform and application developers. Apple, Google, Baidu, and Tencent all have their own AR SDK platforms. While WIMI Holographic, as an intermediate platform, is a supplement to the basic toolkit provided by the SDK platform, allowing users to complete software applications more conveniently. The holographic image processing function of WIMI is regularly optimized and improved, including two core technologies: holographic AI face recognition technology and holographic AI face change technology. Due to the development of video processing and recognition technology, WIMI’s holographic AR advertising and holographic imaging services based on image detection, recognition, template matching, image dynamic fusion and replacement are currently in a leading position in the industry.With the development of autonomous driving, people will see various applications and implementations of AR technology in the industry, and automotive equipment requires after-sales updates, which provides necessary opportunities for the corresponding upgrade of AR content and software. Therefore, AR has great development potential. It can be predicted that the market will soon need a platform related to automotive AR. Now, what still needs to be considered is the formulation of a common standard, which means that manufacturers, software developers, and content developers must work together to build a common ecosystem for the upcoming automotive AR.In short, autonomous driving has brought real impetus to the development of AR, but at the same time, AR may also be a key factor in helping the market transition from manned to unmanned driving. In the long run, automotive AR only opens the practical application market of the AR industry, paving the way for AR applications in other industries.About Tailor InsightTailor Insight provides easy and quick solutions that allow customers to capture, monitor, and audit market data from a holistic view down to an individual task on market research and industry trend insights. For more information, please visit http://www.Tailor Insight.comMedia contact Alex Xie, Senior Analyst Fintech Research Team, Tailor Insight Research info@Tailor Insight.com http://www.Tailor Insight.com

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Brookfield to acquire mortgage lender Genworth/Sagen | RENX – Real Estate News EXchange

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Brookfield Business Partners (BBU.UN-T) announced Monday morning it plans to purchase all outstanding shares of Genworth MI Canada, the country’s largest private sector residential mortgage insurer, in a deal which values the firm at about $3.8 billion.

Brookfield already owns a controlling 57 per cent share of Genworth, which recently rebranded and is now operating as Sagen MI Canada (MIC-T). Brookfield and a group of affiliates and institutional partners will pay $43.50 per share for the outstanding Genworth/Sagen units.

Buying the remaining units will cost about $1.6 billion, of which Brookfield will fund about $606 million and its affiliates and other investors the remainder.

Brookfield’s initial Genworth investment

“The transaction, together with our company’s recent rebranding as Sagen MI Canada, represents an exciting new chapter for the company,” said Stuart Levings, president and CEO of Genworth/Sagen, in the announcement. “We look forward under Brookfield’s ownership to continuing to work with lenders, regulators and mortgage professionals to help people responsibly achieve and maintain the dream of home ownership.”

The deal comes as Genworth’s stock price, like many others focused on the real estate sector, remained depressed amid the COVID-19 pandemic and related economic uncertainty. The stock closed at $35.58 on Friday on the TSX after trading as high as $60 in January.

“We are pleased to have reached this agreement, which will provide existing shareholders of the company with price certainty and a meaningful premium in an uncertain market environment,” said David Nowak, managing partner, Brookfield Business Partners, in the release.

Brookfield bought the 57 per cent controlling interest in August 2019 for about $2.4 billion. At the time, it paid $48.86 per share.

The purchase price represents a premium of approximately 22 per cent to the company’s closing share price Friday on the TSX and a premium of approximately 25 per cent to the 20-day volume weighted average price on that date.

Genworth rebrands to Sagen

Genworth MI Canada Inc. changed its brand from Genworth MI Canada to Sagen MI Canada as of Oct. 13. The company operates Genworth Financial Mortgage Insurance Company Canada, the largest private sector residential mortgage insurer in Canada.

It provides mortgage default insurance to Canadian residential mortgage lenders. As at Sept. 30, Genworth had $7.1 billion in total assets and $3.8 billion in shareholder equity.

Genworth is based in Oakville, just west of Toronto.

The transaction requires a number of approvals, including two thirds of Genworth/Sagen shareholders, as well as the approval by at least 50 per cent of minority shareholders (which excludes Brookfield). It is also subject to a series of court and governmental approvals.

The company expects to mail an information circular for a special meeting in November and to hold the special meeting in late December. The transaction is expected to close in the first half of 2021.

During this period, Genworth/Sagen will continue paying its quarterly dividend of $0.54 per share.

Scotiabank is acting as financial advisor to the special committee. Blake, Cassels & Graydon LLP is acting as legal advisor to the company and Goodmans LLP is acting as legal advisor to the special committee.

Torys LLP is acting as legal advisor to Brookfield.  McCarthy Tétrault LLP is acting as legal advisor to Scotiabank.

About Brookfield Business Partners LP

Brookfield Business Partners L.P. is a business services and industrials company focused on owning and operating high-quality businesses that benefit from barriers to entry and/or low production costs.

Brookfield Business Partners is the flagship listed business services and industrials company of Brookfield Asset Management Inc. (BAM.A-T), a global alternative asset manager with approximately US$550 billion of assets under management.

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In pictures: The most expensive real estate listings around the Edmonton region – CTV Edmonton

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EDMONTON —
The COVID-19 pandemic may have some people holding onto their money a little tighter due to economic uncertainty—or dreaming of living the lavish lifestyle.

We broke down the five most expensive homes for sale in the Edmonton region according to Realtor.ca:

As of Monday, 27523 Highway 633 in Parkland County is the regions highest listed property at a cool $8.75 million.

Most expensiveHome

The more than 7,000-square-foot home is nestled on more than 80 acres.

It includes five bedrooms, eight bathrooms and a chef’s kitchen.

Other features include a 9,600-square-foot car showroom, and a second 3,400-square-foot shop.

The second most expensive listing is 16 Windermere Dr.

W W

The 12,890-square-foot home with an acre of gated property is priced out at nearly $6.5 million.

It includes six bedrooms, eight bathrooms and a 20-foot rotunda lit by a custom chandelier.

Other features include an elevator, Italian glass finishing, six-person spa and a memorabilia room.

The third most expensive listing is located at #2 27509 TWP RD 540 in Parkland County, sitting at an even $5.7 million.

P P

The 6,941-square-foot rests on 2.5 acres overlooking a lake and is fully fence. The home was built in 2009 and has three bedrooms and five bathrooms.

It also has a movie theatre and a parking garage that contains 12 parking spaces.

The fourth most expensive listing on 8606 Saskatchewan Dr. is priced out just shy of $5.3 million.

SS

The four-bedroom, nine-bathroom home includes a rooftop deck that looks out on the river valley and has a 10,000 square foot living area.

The fifth most expensive listing is tucked away on 6240 Ada Blvd, clocking in at a casual $4.25 million.ff

The five bedroom, seven bathroom home was built in 1912 and is in the Highlands neighbourhood and overlooks the river valley.

The 7,385-square-foot home has hand painted linen wall coverings, oak inlay flooring and four gas fireplaces.

All photos from Realtor.ca

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