Winter v. Capilano Timber Co. Ltd. et al.

Winter v. Capilano Timber Co. Ltd. et al.

The lease was validly terminated by the lessor's exercise of the express covenant permitting avoidance upon lessee insolvency; the lessor's re-entry was sufficiently effected by putting Capilano into possession under a Dewar lease on October 1; consequently the plaintiff's main claim for possession failed and Capilano was not liable to pay $2,400 because there was no effective demise to Capilano when it first entered and Capilano paid Dewar compensation for occupation.

Citation
[1928] SCR 1
Parties
Plaintiff/appellant: George E. Winter, The Authorized Trustee of the Property of Coast Shingle Company Limited; Defendant/respondent: Capilano Timber Company Limited; Defendant/respondent: J. A. Dewar Company Limited
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
31 May 1927
Procedural Posture
Appeal / Supreme Court of Canada on Appeal From the Court of Appeal for British Columbia
Outcome
Appeal dismissed with costs; cross-appeal allowed with costs.
Legal Topics
Forfeiture of Lease, Re Entry, Construction of Lease Provisions, Short Forms of Leases Act Interpretation, Possession and Occupation, Compensation for Use and Occupation
Source Language
English
Property Landlord and Tenant Bankruptcy Forfeiture of Lease Re Entry Construction of Lease Provisions Short Forms of Leases Act Interpretation Possession and Occupation +1 more

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Parties

George E. Winter, The Authorized Trustee of the Property of Coast Shingle Company Limited

Plaintiff/appellant

Capilano Timber Company Limited

Defendant/respondent

J. A. Dewar Company Limited

Defendant/respondent

Procedural Posture

Appeal / Supreme Court of Canada on Appeal From the Court of Appeal for British Columbia

Legal Issues

  1. 1 Whether the lessor's June 4, 1925 notice of forfeiture was sufficient to terminate the lease without a common law demand for rent
  2. 2 Whether the lease was properly voided by exercise of lessor's option on lessee insolvency or assignment for benefit of creditors
  3. 3 Whether taking of possession by a new tenant under a lessor's lease constituted sufficient re-entry

Ratio Decidendi

The lease was validly terminated by the lessor's exercise of the express covenant permitting avoidance upon lessee insolvency; the lessor's re-entry was sufficiently effected by putting Capilano into possession under a Dewar lease on October 1; consequently the plaintiff's main claim for possession failed and Capilano was not liable to pay $2,400 because there was no effective demise to Capilano when it first entered and Capilano paid Dewar compensation for occupation.

Court Disposition

Appeal dismissed with costs; cross-appeal allowed with costs.

Orders

  • Main appeal dismissed with costs
  • Cross-appeal allowed with costs