What is the test for an option to renew clause in a commercial lease?

Ontario, Canada


The following excerpt is from 1398955 Ontario Inc. v. O’Shanter Development Company, 2005 CanLII 43073 (ON SC):

My conclusion finds support in the following statement of Judson J. in Sparkhall v Watson [1953] O.J. No. 432 at paragraph 11. In that case the option to renew provision conferred an option to renew if the lessee could establish that it “duly and regularly pays the rent…and performs all and every covenant provision and agreement herein contained and on the part of the lessess to be paid and performed…”: 11 The present case appears to me to be altogether different from Starkey v. Barton. The lessee is required to show that he has 'duly' and 'regularly' paid the rent. In a phrase such as this, the word "regularly" surely must have some meaning. I think that it compels the lessee to show that he has paid at fixed intervals or periods according to the rule established by the parties themselves when they signed the lease. In other words, I am saying that it means punctually, at the due date. Starkey v. Barton does not, in my opinion, establish any general rule that delay in payment of the rent is immaterial regardless of the wording of the clause as long as the rent is paid up to the date of the exercise of the option. This is really the submission which has to be made and which was in fact made in this case on behalf of the lessee. It ignores the fundamental problem which is to show performance of a condition precedent. This is not a case of an occasional or inadvertent or trivial default. If I were to hold that in this case rent has been duly and regularly paid after the record of irregular payments extending over a period of 2 1/2 years which I have set out in detail above, then words have no meaning.

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