Shared Writing: Braebury Development Corporation v$.$ Gap $($Canada$)$ Inc.

The defendant operated a retail clothing store from premises leased from the plaintiff. The lease was scheduled to end on December $31,2020.$ On March $17,2020,$ the Government of Ontario declared a provincial state of emergency response because of the COVID$-19$ pandemic. On March $24,2020,$ the government ordered all non$-$essential businesses to close, to limit the spread of COVID$-19.$ The defendant was not able to reopen until May $19,2020.$ The defendant did not pay rent for April or March $2020$ and only made partial rent payments from June to September $2020.$ The defendant unilaterally closed the store and vacated the premises in September $2020.$ The plaintiff sued for arrears of rent totalling $$208,211\mathrm{.}85.$ The defendant claimed that it was released from its obligation to pay arrears because the purpose of the lease was frustrated by the COVID$-19$ pandemic and the resulting public health restrictions.

The court focused on two issues. First, did the force majeure clause apply and, if it did, what was its effect on the defendant$$s obligation to pay rent? The force majeure clause excused the parties from performing their obligations under the lease if the party was restricted from doing so by $$restrictive governmental laws or regulations.$$ The court ruled that the force majeure clause was triggered by the government$$s COVID$-19$ restrictions. Despite this, the Court found that the defendant could not rely on the force majeure clause to avoid paying rent. What was the reason for the court making this ruling?

Second, the court addressed the doctrine of frustration; did it apply to excuse the defendant from paying rent? The court held that the doctrine did not apply. Why did it make this ruling?