The Bay in Penticton was given a small reprieve, and will get to keep its location in the Cherry Lane Shopping Centre, but it will have to pay for it.
In a Supreme Court ruling published on June 17, Justice Christopher Giaschi ruled that the Hudson’s Bay Company had defaulted on its obligation to pay its rent to the mall, and that it is entitled to relief from forfeiture of its location in the mall if the company pays out the outstanding rent the company owes.
Regardless of whether they seek to keep the Cherry Lane location or not, the ruling noted that the Hudson’s Bay Company has seven days from June 17 to pay the other half of 2021’s rent payments that were being held in trust following the agreement the two companies had come to in January.
For the year of 2020, the rent for the property in the Cherry Lane Shopping Centre totaled $936,437, which was intended to be paid out in monthly installments of $78,036.
In April 2020, the Bay stopped paying its rent, citing the ongoing pandemic. In a lawsuit filed in November by Cherry Lane, they claimed they were owed $546,255 in unpaid rent since April.
In his ruling, Justice Giaschi stated there had been no unavoidable delay that would have prevented the Bay from paying the rent they owed per their lease agreement.
The decision to give the Bay relief from having to forfeit their location, while noting that the mall was in their rights per their contract to evict the bay, that there was nowhere else to go.
“I am satisfied that HBC would suffer irreparable harm if it was forced out of the premises,” reads the ruling. “As indicated, the evidence before me is that there are no other locations in the area where it can relocate its store. It could also suffer reputational damage.”
A separate legal complaint from the Bay, on whether or not Cherry Lane had done enough to provide adequate safety and protective measures during the pandemic, is still ongoing.
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