McKay v. Douglas

McKay v. Douglas

Because the adjoining occupier (Brody) had a lawful right to remove the removable door and lift the latch (whether spontaneously or at the landlord's request), the landlord's subsequent entry by pushing open the unfastened swinging door was not a breaking and the distress was lawful, so the action for trespass/illegal distress fails.

Citation
(1918) 57 SCR 453
Parties
Appellant/defendant: D. H. McKay and Another; Respondent/plaintiff: John C. Douglas
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
18 November 1918
Procedural Posture
Civil Appeal (landlord and Tenant Distress/trespass) / Final Judgment on Appeal From Supreme Court of Nova Scotia
Outcome
Appeal allowed; action dismissed
Legal Topics
Distress for Rent, Trespass, Entry and Breaking, Consent and Removal of Obstructions
Source Language
English
Landlord and Tenant Property Tort Distress for Rent Trespass Entry and Breaking Consent and Removal of Obstructions

Case Brief

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Parties

D. H. McKay and Another

Appellant/defendant

John C. Douglas

Respondent/plaintiff

Procedural Posture

Civil Appeal (landlord and Tenant Distress/trespass) / Final Judgment on Appeal From Supreme Court of Nova Scotia

Legal Issues

  1. 1 Whether the landlord's entry after obstructions were removed by an adjoining occupier constituted a breaking and unlawful distress
  2. 2 Whether the adjoining occupier had the legal right to remove obstructions and thereby permit lawful entry by the landlord or his bailiff

Ratio Decidendi

Because the adjoining occupier (Brody) had a lawful right to remove the removable door and lift the latch (whether spontaneously or at the landlord's request), the landlord's subsequent entry by pushing open the unfastened swinging door was not a breaking and the distress was lawful, so the action for trespass/illegal distress fails.

Court Disposition

Appeal allowed; action dismissed

Orders

  • Appeal allowed with costs throughout
  • Judgment below reversed and plaintiff's action dismissed