Oxford Properties suing HBC for more than $2.29M
$1.4-million in unpaid at HBCowned Home Outfitters locations in St. Catharines and Oshawa.
Oxford Properties is also suing HBC for more than $2.29 million in unpaid rent at two shopping centres including Galeries de la Capitale in Quebec City and Promenades Gatineau near Ottawa. In these two malls, HBC’s sales dropped more than 99 per cent in April, according to court filings. HBC has reportedly not paid rent in eight of the 11 Oxford-owned malls in Canada where it has stores since April 1.
Oxford filed an eviction notice last month to HBC at Hillcrest Mall in Richmond Hill after seven months of unpaid rent — a move that was temporarily halted on Oct. 20 by an Ontario judge, who ordered HBC to pay half the rent ($659,395) it owed. HBC complied.
The court ruling has been welcomed by both HBC and Oxford but for different reasons.
Putnam said he is “grateful” that the court has “recognized he extraordinary challenges of he global pandemic and how the burden can be shared fairly and lawfully, especially as it relates to non-essential retailers.”
Oxford spokesperson Daniel O’Donnell said the ruling “demonstrates that HBC cannot use leased premises and not pay any rent.”
Rotman’s Soberman believes these legal disputes could damage HBC’s reputation. “It does not increase the likelihood of a consumer deciding to go shopping at the Bay and it certainly does not increase the likelihood of a supplier to ship product to the Bay,” he said.
Alex Bishop, managing partner of Recast Properties, a mixed-used real estate development firm, agrees these legal disputes don’t instill any confidence in HBC’s financial health.
Bishop believes HBC is no longer the company it once was. Today, it’s a company held by private equity invesAmerican tors and hedge funds, with no Canadian board members and whose parent company is based in Bermuda, he said.
In his analysis of the department store’s public financial disclosures, Bishop found HBC has had negative cash flow since the beginning of 2018 and has been underperforming, even in its peak holiday seasons.
“If HBC was still available as a stock, I would not buy it. All signs point to them burning much more cash to survive this. At their current burn rate, they’d be out of money this quarter,” according to his calculations, he said. Because HBC is now private, the amount of cash it has on hand is not known.
Bishop predicates this on several factors: the company’s restructuring, its unpaid rent lawsuits, its use of government loans, plus the fact that HBC has not opened its books for its landlords.
In court filings, Oxford said it asked HBC to provide financial information so it could negotiate rent relief.
Oxford spokesperson O’Donnell said the company has worked “constructively with hundreds of other retailers across Canada, including HBC’s peers, to partner on rent relief packages and restructure leases.” These retailers “have worked towards meeting their obligations while HBC elects to wash its hands of them entirely,” he said. But “eight months of disingenuous negotiations has left us with little option than to pursue legal action,” he added.
The fact that Putnam claims the company has “more than ample liquidity” makes the company’s decision not to pay rent “more egregious.” O’Donnell said.
In its court filings HBC is claiming it’s not paying rent because Oxford breached its contract by not providing “an environment that attracts substantial numbers of customers … to stay at the centre for an extended period of time.”
On Nov. 13, HBC filed a countersuit against Cherry Lane Mall in Penticton, B.C., alleging similar reasons: “The landlords have continued with its traditional marketing efforts as if nothing happened. This lack of marketing has contributed to the sustained lack of footfall since the reopening of the malls,” the retailer claimed in the suit.
Retail is on the front lines of the economic fallout of COVID-19, said Benjamin Shinewald, CEO of BOMA Canada, a real estate industry association. The impact has been felt by both landlords and tenants, who have what Shinewald calls “a symbiotic relationship” in helping one another be successful.
“Landlord-tenant relationships are partnerships. I think that means in general if you’re claiming hardship you have to substantiate that,” Shinewald says.
Diane Brisebois, president and CEO of the Retail Council of Canada, agrees that retail stores and their landlords depend on each other in good times and bad.
For both, the lockdowns have “put pressure right across their operations.”
Department stores, specifically, are struggling globally, seeing customers and investors leave. In pre-pandemic times, customers could leisurely enter a department store, try on clothes and cosmetics and buy non-essential and luxury items. Now, the makeup counters are covered in plastic and dressing rooms are quiet as retail stores experience “the biggest drop in customer traffic we’ve ever seen,” Brisebois said.
“One of the Achilles’ heels of the HBC format is that there’s no grocery component, so people don’t need to go in,” Soberman says. “I think the shopping centres are between a rock and a hard place.”
With the holiday season now ramping up, Brisebois worries further restrictions will be “the f retailers.
HBC is trying to beat this trying time for retail by investing in e-commerce and has seen “very strong growth online,”
d a company spokesperson. Its website has seen a 46 per cent bump and a 43 per cent growth in sales year-over-year and HBC is continuing to build on this, the spokesperson said.
HBC launched a new website in April that included a customer service live chat and a curbside pickup option. It has also relaunched its rewards loyalty program to integrate with the new website. In July, HBC introduced a digital flyer and the company has added around 35 new brands to its collection, eight of which are exclusive to HBC in Canada.
But industry experts have also noted that HBC has decided to open later and close earlier since the onset of the pandemic and still hasn’t introduced contactless payment.
The general lack of innovation and the slow shift to online sugag far
ests that HBC is trailing behind, said Kyle Lanzinger, vice-president of Concierge Capital Partners. “HBC isn’t at a level to offset their gigantic per square footage costs of retail,” he said. “It’s the sad story of every department store … It’s what we learned only three years ago when Sears filed for bankruptcy.”
Nonetheless, experts believe the uncertainty instilled by COVID-19 and the fact that HBC is now a private company leave significant unknowns about the health of the company.
HBC’s Putnam broadly refuted allegations the company is in trouble, stating “the courts will continue to provide a commonsense approach that is fair to landlords and retailers” that will help the company beat the impacts of the pandemic.
But Toronto lawyer Dennis Tobin, who specializes in commercial and retail leasing, is more hesitant, noting there are a lot of factors for the courts to consider.
“I think the challenge for the judge is going to be what was possible for the parties to address, and whether that impacts the payment of rent,” Tobin said. For example, a judge will have to assess whether nor not a lease covers foot traffic as a responsibility of a landlord, whether or not that was neglected and whether or not that justifies nonpayment of rent.
Most experts agree that if the pandemic lasts all of next year, the impact on HBC will be severe.
“I don’t think we’re at the point of writing a eulogy for HBC, but plenty of retail operations that were profitable have not just tripped up but have been decimated by the pandemic,” Soberman said. “Hudson’s Bay could’ve transformed itself into a different animal that was very successful, but with the pandemic, whatever their plan was, it’s like they’ve hit an incendiary device that blew up their path, perhaps injuring them too.”
“If the pandemic lasts all of next year, it’s going to be really hard on HBC,” Soberman said. “This isn’t rocket science. Not paying rent at all means trouble.”
“If the pandemic lasts all of next year, it’s going to be really hard on HBC. This isn’t rocket science. Not paying rent at all means trouble.”
DAVID SOBERMAN PROFESSOR OF MARKETING AT ROTMAN SCHOOL OF MANAGEMENT