ELORA – A court has determined an ice cream shop in the Elora Mews can stay put for a few more years after its landlord attempted to deny its lease renewal due to multiple allegations of breaching an agreement, including “allowing a squirrel on the premises.”
In a judgment posted to CanLii, McGee ruled Remi’s Place can renew its lease to Aug. 31, 2027 as the shop did not violate a lease extension agreement (LEA).
Remi’s Place is a family owned and operated ice cream store and grill since April 2012 in the Elora Mews on West Mill Street.
The Elora Mews was bought by Kat Florence Canada in February 2022, which the ruling said was subject to the leases which govern the premises, primarily an Aug. 30, 2021 LEA which provided terms for an extension to Aug. 31, 2024, and for a further renewal of three years from Sept. 1, 2024, to Aug. 31, 2027.
On March 1, 2022, the ruling said the landlords delivered a document titled Elora Mews Rules & Regulations and since April 13 of that year issued a series of notices to the tenant they were in breach of various and “often undefined lease terms” set out in the document with escalating letters from their lawyer following.
Alleged breaches noted in the ruling include: failure to stay open year-round, allowing a squirrel on the premises, aggressive verbal confrontations towards visitors, customers or tenants, playing loud music and placing patio furniture in the common space of the Elora Mews after having permission to do so revoked.
The ruling said emails were exchanged between respective lawyers with the tenant’s counsel ability to meet and resolve various demands of the landlords was hampered by the evolving nature of the demands.
“Some demands were simply not reasonable. At one point the landlords declared that ‘one squirrel is too many squirrels’ while asserting that the tenant was in breach of the lease as a result of a squirrel gaining entry into the premises,” the ruling said.
After a particularly “vitriolic” letter from the landlord’s lawyer, the ruling said the tenant’s counsel called out the landlords for “trying to create a false record in an increasingly transparent effort to evict the ice cream shop for financial gain.”
The ruling said Remi’s Place increased its operating hours to be open year-round over the fall and winter of 2022 and 2023.
McGee ruled the terms of lease renewal were met and approved the application order confirming the renewal of their lease and denied a counter application by the landlord to terminate the lease.
The ruling said the three conditions laid out in the LEA to be met were: rent be paid on time, the tenant complices with all the leases’ terms and negotiations are commenced at least six months prior to expiry in this case by Feb. 29, 2024.
“The LEA as a whole is a simple, six paragraph document, drafted within the context of a longstanding, harmonious, and dare-I-say small-town relationship between landlord and tenant,” McGee stated.
McGee wrote she was satisfied negotiations to extend the lease were commenced before the Feb. 29, 2024 date set out in the LEA, noting a WhatsApp message with Don Kogen, the spouse of Kat Florence Canada’s president Kristy Hillis.
The message had Kogen asking the son of Remi's Place’s owner if they planned to extend the lease.
“The price is $73 per square foot and you can do two to 10 years up to you,” the message from Kogen said. “I currently have several people willing to take this space as soon as your lease expires.”
The justice wrote the payment of rent was confirmed, the tenant complied with all the lease’s terms and they remedied not being open year-round although McGee wrote she did not find this to be a reasonable term.
She also noted allegations of the loud music complaint and squirrel incident were not substantively addressed and even if they were would not constitute a breach.
The landlord’s revocation of communal patio space use was also not valid, McGee stated in the ruling.
The ruling said based on the original lease, determining the amount of rent to be paid following a renewal term is to be determined by an arbitrator.