No dice: Nunavut judge rules Iqaluit resto, pub must move out

Out of luck: despite trying to force their landlord’s hand in court, the Waters sisters, who run the Waters’ Edge restaurant and Kickin’ Caribou pub in Iqaluit, will have to vacate the premises when their lease runs out at the end of August. (FILE PHOTO)

Iqaluit’s popular Waters’ Edge Seafood and Steakhouse restaurant, and Kickin’ Caribou pub, will likely close down by summer’s end now that a Nunavut judge has blocked an eleventh-hour legal bid from its owners,

In delivering his decision on the civil suit July 14, Nunavut Justice Paul Bychok called the owners’ attempts to save the lease “disingenuous.”

On June 1, restaurant owners Kim and Donna Waters filed a suit against their landlord, Northview Property Real Estate Ltd., or NPR, claiming that their lease at Iqaluit’s Hotel Arctic allowed them to negotiate their stay until 2023, instead of expiring in August of this year.

The claim was undermining NPR’s intention to sell the Hotel Arctic to an undisclosed buyer—a sale that was based on the condition that the premises be vacated by summer’s end.

Bychok pulled no punches in his decision, highlighting contradictory testimony and evidence presented by the Waters sisters over the existence of a signed lease allowing them to extend their term.

“It is disingenuous for the plaintiffs now to assert an enforceable right to renew,” Bychok said in his decision.

The renewal clause cited by the Waters stemmed from an “agreement in principle,” they claimed was reached in 2013 between their consultant, Tyler Fraser, and Kelly Hayden, NPR’s property manager for the hotel at the time.

But that agreement was never officially signed, Bychok concluded, despite testimony by the Waters sisters that they signed a draft lease with the renewal clause and sent it to Fraser by fax in 2014.

During the trial, which took place in an Iqaluit boardroom over three days in July, Fraser denied under oath that he ever received the fax in question.

He also denied that he told the Waters by phone—as they testified in court—that he and Hayden “shook hands on it” or that he “flipped him a coin” as payment for kitchen equipment owned by NPR and sold to the Waters under the terms of the new lease.

“Ms. [Kim] Water’s testimony calls her credibility and reliability into sharp focus,” Bychok said.

“Consequently, I cannot say I am satisfied that Ms. Waters did, in fact, ever send the signed agreement to Mr. Fraser.”

But Bychok called out Fraser for his own “careless and self-serving hyperbole” in statements he wrote in the business’s 2013 annual report claiming such a renewal agreement until 2023 had indeed been reached, despite his own admission to the court that he had no signing authority for the restaurant.

Bychok also found the Waters to be in material breach of their existing lease regarding maintenance obligations, and contrary to court orders laid down by a judge from an earlier trial in 2015.

Those court orders accompanied an injunction successfully won by the Waters sisters after NPR terminated the restaurant’s lease in 2014 due to an alleged failure by the owners to maintain the restaurant grounds and equipment, and also due to convictions under Nunavut’s Liquor Act.

The injunction was conditional on the owners addressing upkeep shortcomings identified by NPR. But Bychok said those were never completed before the imposed deadline of Sept. 1, 2015.

Donna Waters told the court that the company had invested $100,000 in the restaurant believing that Fraser had secured the renewal, but “provided no documentary evidence of any investment to support her claim,” Bychok said.

Emails entered into evidence also proved the Waters were aware in 2015 that their current lease would expire in 2017, and that NPR told them any possibility of a renewal “will not occur.”

Even more significant, a February 2017 email sent to NPR by the restaurant’s manager requesting to renew the lease also proved the current agreement expired in 2017.

“I can draw only one rational inference from this letter: the plaintiffs did not believe they had an enforceable right to renew the lease,” Bychok said.

“They explicitly acknowledged their lease was about to expire. They did not assert an enforceable right to renew it [in February].”

Therefore, Bychok concluded the lease expires, as outlined, on Aug. 31.