By now, we have become all too familiar with the hardships that
businesses in Ontario have had to endure in the face of the ongoing
COVID-19 pandemic. In a recent decision, Braebury
Development Corp v. Gap (Canada) Inc., 2021 ONSC 6210 the Ontario
Superior Court of Justice ruled that neither a force majeure clause
nor the doctrine of frustration excused a tenant from its
obligation to pay rent.
Background
The defendant tenant operated a Gap clothing store in downtown
Kingston, Ontario, and had entered into a lease agreement for the
premises that was set to end on December 31, 2020. But, COVID-19
had other plans.
On March 26, 2020, the Government of Ontario declared a
provincial state of emergency and ordered that all non-essential
businesses, such as the defendant's, be shut down. The
defendant was unable to reopen its Gap store until May 19, 2020,
when those restrictions were lifted. In the meantime, it failed to
pay rent for the leased premises for both
