Judicial Notice of Anti-Black Racism in Commercial Lease Dispute
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Earlier this year, we wrote about an Ontario decision in which the court took judicial notice of the landlord’s anti-black racism after the landlord attempted to terminate the tenant’s commercial lease.

Last week, the Ontario Court of Appeal released its decision in the case in which it found no errors with the application judge’s assessment of the evidence and dismissed the landlord’s appeal.

Landlord Tries to Evict Tenant

In 2013, the tenant took assignment of a lease for a commercial unit located in a shopping plaza in Toronto. The tenant was a family business, run by a husband and wife team.

The tenant operated a restaurant and bar, serving what was described as African/Black/Caribbean cultural foods and catering to a primarily, but not exclusively, Black community customer base. 

The lease was for a five-year term, ending July 31, 2017. There were two options to renew for additional five-year periods. The lease provided that written notice of the exercise of the option was to be given by registered mail at least six months prior to the expiry of the lease (i.e., by January 31, 2017).

The tenant had not given written notice of its exercise of the option as required, although it had attempted to contact the landlord on numerous occasions. The landlord kept the tenant as an overholding tenant from August 2, 2017 to May 28, 2020, when it terminated the lease. 

The tenant applied to court, seeking relief from forfeiture pursuant to s. 98 of the Courts of Justice Act.

Lower Court Take Judicial Notice of Landlord’s Anti-Black Racism

Ultimately, the application judge found in favour of the tenant for several reasons, including that the tenant had not breached the lease, had made improvements to the premises, had attempted to contact the landlord numerous times, and had acted in good faith. 

Additionally, the application judge took judicial notice of the landlord’s attitude towards the tenant and its racist undertones. The application judge found that the affidavits of the landlord and its agents were “almost a caricature of racially derogatory themes”. 

While the application judge opined that the landlord’s position may not have been consciously racially motivated, he stated nonetheless:

“While a single adjudication dealing with a discreet conflict between a commercial Landlord and Tenant cannot possibly address society’s many challenges with respect to racial justice, it equally cannot ignore them. At the very least, the societal realities pertaining to Black businesspeople like the Tenants must be factored into the exercise of the Court’s discretion in considering equitable remedies like injunctions and relief from forfeiture.”

The landlord appealed the decision to the Ontario Court of Appeal. Among the issues raised, the landlord took issue with the application judge’s observations with respect to anti-Black racism. 

Ontario Court of Appeal Dismisses Landlord’s Appeal

At the outset, the court held there had been sufficient evidence to support the application judge’s conclusions on the facts and that the landlord had not demonstrated a palpable and overriding error in the application judge’s assessment of the evidence. 

With regard to the application judge’s comments on anti-Black racism, the court stated:

“There was language in the Landlord’s affidavits that suggested its concern to find a tenant that would attract “like minded family-oriented customers” as opposed to a “liquor bar” was stereotypical labelling. The evidence supported the application judge’s conclusion that the real issue for the Landlord was the fact that the “Tenant is a Black-owned and operated business and caters to an Afro-Caribbean community”.

The application judge was entitled to take judicial notice of anti-Black racism in Canada. He found that whether the Landlord’s racial stereotyping was conscious or not, it was a matter he could take account in the exercise of his discretion to grant relief from forfeiture. As he put it…“the societal realities pertaining to Black businesspeople like the Tenants must be factored into the exercise of the Court’s discretion in considering equitable remedies like injunctions and relief from forfeiture.”

Based on all the evidence, including the Tenant’s evidence and the evidence of the Landlord’s own witnesses, the application judge was entitled to conclude that anti-Black racism was relevant to the Landlord’s refusal to negotiate a renewal of the lease, regardless of whether the Landlord’s actions were consciously motivated by racism.”

In the result, the court therefore dismissed the landlord’s appeal.

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