Canadian Lawyer

December/January 2021

The most widely read magazine for Canadian lawyers

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26 www.canadianlawyermag.com IN OCTOBER, the Hudson's Bay Company was accused by two landlords of not paying rent since April at locations in Quebec. Lawsuits filed in Quebec Superior Court by the landlords sought "safeguard orders" compelling HBC to pay its rent, alleging that the retailer owed more than $3.5 million in rent and other fees at five Quebec shopping malls. It's a symptom of the travails faced by retail tenants across Canada in light of the COVID-19 pandemic, which has diminished if not decimated business. An interesting aspect of the pandemic COVID-19 has upended the real estate market and created a second wave of challenges but also innovations, writes Elizabeth Raymer New opportunities for real estate is the allocation of risk between landlords and tenants, says Ira Barkin, a partner and co-head of the Commercial Real Estate Group at Goodmans LLP in Toronto. "I see it from both perspectives: tenants and landlords," he says. Landlords have bills to pay, are not getting relief from their own mortgage payments and must continue to make utility payments. Tenants, on the other hand, are not able to conduct business as usual and so can't use the real estate the way for which they bargained. Although not a lot of law has been devel- oped in this area, what has been impressed on the real estate bar is, he says, "Don't give your clients hard-and-fast rules, because ulti- mately no one knows for certain how courts are going to rule." For example, Quebec's Superior Court recently held that a landlord was responsible for the failure of a now-bankrupt tenant to operate his business during a period that included a flood of the premises. However, Barkin says, "In almost all other instances, the tenant, under the terms of most leases, is responsible for paying the rent." LEGAL REPORT REAL ESTATE

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