In Aventura2, a recent decision of the
Ontario Superior Court of Justice (Commercial List) (the
"Court"), the Honourable Justice Penny confirmed that a
bankruptcy trustee does not have the authority, pursuant to section
30(1)(k) of the Bankruptcy and Insolvency Act (the
"BIA"), to disclaim a lease on behalf of a bankrupt
landlord. Rather, a trustee's authority to disclaim a lease is
limited to situations where the bankrupt is the tenant. His Honour
held that, where the bankrupt is the landlord and "[w]here
the tenant is not in breach, neither the landlord, nor his trustee
in bankruptcy, has the power to terminate the
lease."3
Section 30(1)(k) of the BIA provides a trustee the authority,
with the permission of the inspectors of the bankrupt estate, to
elect "to disclaim or resiliate any lease of, or other
temporary interest or right in, any property of the
bankrupt." At issue in Aventura was whether this
authority extended beyond the trustee of a bankrupt tenant,
