G.W.G. Woodcrafters Ltd. v. Bourque

2022 BCSC 2228 G.W.G. Woodcrafters Ltd. v. Bourque

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: G.W.G. Woodcrafters Ltd. v. Bourque, 2022 BCSC 2228 Date: 20221221 Docket: S131644 Registry: Kelowna Between: G.W.G. Woodcrafters Ltd. Petitioner And Rene Bourque dba OK Region Towing, Viking Ventures Ltd., and All other occupants of Lot 1, District Lot 2195, Osoyoos Division, Yale District Plan EPP98830 Respondents Before: The Honourable Justice Ahmad Reasons for Judgment Counsel for the Petitioner: J. Burgess Counsel for Rene Bourque dba Woodcrafters Ltd.: D.K. Lo The Respondent, Viking Ventures Ltd. No appearance Place and Date of Hearing: Kelowna, B.C. November 22 and December 7, 2021 January 13, February 10, April 14, May 2 and June 17, 2022 Place and Date of Judgment: Kelowna, B.C. December 21, 2022 Table of Contents I. Introduction.. 3 II. Legal Framework.. 3 III. Procedural history.. 4 IV. Background facts and evidence.. 6 The Property. 6 The towing business. 6 The verbal lease agreement 7 The Cedar Building. 8 The tenancy. 9 V. Issues and positions of the parties.. 10 VI. Credibility and reliability.. 11 VII. Discussion and analysis.. 15 A. The purported termination of Mr. Bourque's lease. 15 1. Is Mr. Bourque's tenancy governed by the RTA or the CTA?. 15 2. Were the premises "primarily occupied for business purposes"?. 17 3. Were the living accommodations and the rest of the premises leased under a single agreement?.

18 4. The Cedar Lot and the Lenzi Lot 20 B. The purported termination of the Viking lease. 21 VIII. Summary of disposition.. 21 IX. Costs.. 22 I. Introduction [1] The petitioner, G.W.G. Woodcrafters Ltd. (the "Landlord") is the owner of property located at 9403 Cedar Avenue in Summerland, British Columbia (the "Property"), a portion of which is tenanted under separate lease agreement by the respondents, Rene Bourque dba OK Region Towing ("Mr. Bourque") and Viking Ventures Ltd. ("Viking"). [2] Relying on ss. 18-21 of the Commercial Tenancy Act, R.S.B.C. 1996, c. 57 [CTA], the Landlord seeks a declaration that each of those tenancies has been terminated and the respondents continue to wrongfully hold possession of portions of the Property they lease. The Landlord also seeks a writ of possession for the leased premises. [3] Mr. Bourque concedes that he leased a portion of the premises for the operation of the towing business conducted by OK Region Towing. However, he says that another portion of the premises were leased for residential purposes and, accordingly, neither the process nor the remedies available under the CTA apply. Rather, he argues that the issue of that tenancy should be determined pursuant to the Residential Tenancy Act, S.B.C. 2002, c. 78 [RTA]. [4] Although served with the petition and supporting materials, Viking did not file a response and did not appear at

the hearing of the petition. II. Legal Framework [5] The legislative framework for tenancies, including the termination of tenancies, in British Columbia differs for commercial tenancies and residential tenancies. [6] The termination of commercial tenancies is governed by the process and the remedies set out in ss. 18 to 21 of the CTA. Those sections set out a two-stage summary procedure by which a landlord may seek a writ of possession where a commercial tenant wrongfully refuses to go out of possession of leased premises. [7] The first stage requires the Court to determine, on affidavit evidence, whether the tenant appears to wrongfully hold premises and that the landlord is entitled to possession. If so, the Court shall appoint a time and place to finally determine the issues: CTA, ss. 18-19. [8] The second-stage hearing is described in s.

21. It provides, in part: 21(2) If the tenant appears at the time and place, the court shall, in a summary manner, hear the parties, examine the matter, administer an oath or affirmation to the witnesses adduced by either party, and examine them. (3) If after hearing and examination it appears to the court that the case is clearly one coming under the true intent and meaning of section 18, and that the tenant wrongfully holds against the right of the landlord, then it shall order the issue of the writ [of possession] under subsection (1) which may be in the words or to the effect of the form in the Schedule; otherwise it shall dismiss the case, and the proceedings shall form part of the records of the Supreme Court. [9] At the second stage hearing, the burden is on the tenant to show cause why they ought not to be compelled to vacate the premises: Broadway-Heb Property Inc. v. Renegade Productions Inc., 2019 BCSC 1693 at para. 35. [10] Residential tenancies, on the other hand, are governed by the RTA and, with some exceptions, are determined at first instance by the director or their delegate: RTA, s.

58. Where the RTA applies, any attempt by either a landlord or a tenant to avoid its provisions is of no effect: RTA, s.

2. III. Procedural history [11] On or about February 2021, the Landlord delivered a notice of termination of lease to each of Viking and Mr. Bourque pursuant to which the Landlord: (a) purported to terminate their respective leases effective March 31, 2021; and (b) required vacant possession of the leased premises on or before April 1, 2021. [12] Notwithstanding the delivery of the notices of termination, neither Viking nor Mr. Bourque delivered the leased premises to the Landlord in the timeframe set out in the notice. [13] On April 14 and April 28, 2021, the Landlord delivered a demand for possession to Viking and Mr. Bourque, respectively in which it made demand for immediate vacant possession of their leased premises. [14] As of the date of the hearing of the petition, neither Viking nor Mr. Bourque had complied with the demand for possession. [15] Having heard the first stage application of the CTA process, the Court determined that the Landlord met the requirements of s. 18 of the CTA. According, the matter was set for the second stage of the inquiry on November 22, 2021. [16] On first date of the hearing, counsel for Mr. Bourque advised that given Milton Gorman's involvement in negotiating his lease agreement, Mr. Bourque had sought to compel him to attend at the hearing for cross-examination. Counsel for the Landlord resisted that request. [17] On December 1, 2022, Mr.

Bourque filed an application to transfer the petition to the trial list, citing among other things, the conflicting evidence regarding the terms of the lease and Mr. Gorman's failure to subject himself to cross-examination. [18] After an adjournment on December 7, 2022, the second stage hearing was heard on various dates over the course of five partial days on January 13, February 10, April 14, May 2, and June 17, 2022. [19] As contemplated by s. 21(2) of the CTA, in addition to the affidavits filed in support of his response to the petition, Mr. Bourque gave oral evidence and was cross-examined on his evidence. Despite the initial refusal to produce Mr. Gorman for cross-examination, after Mr. Bourque's evidence was completed, the Landlord advised that it would call Mr. Gorman to give oral evidence in reply. All of the evidence and submissions were heard over MSTeams. Given the oral evidence of the witnesses, Mr. Bourque abandoned the application to convert the petition to the trial list. IV. Background facts and evidence The Property [20] Although the Property is comprised of one legal lot with one municipal address, for leasing purposes, the Landlord divided the Property into several different areas and leased the Property to several different tenants. [21] The Property is bordered on two sides by properties that are used for industrial purposes and on two sides by parkland.

There was no evidence regarding the zoning for the Property itself. The towing business [22] Prior to 2011, Mr. Bourque was the owner and operator of OK Region Towing, a towing business that he operated from Rosedale, British Columbia. In early 2011, he purchased the assets of Theo's Towing which leased a portion of the Property that backed onto Lenzi Avenue (the "Lenzi Lot") for use as its towing yard. [23] As part of his purchase, Mr. Bourque acquired Theo's Towing's contract with the RCMP for the Summerland, British Columbia area. That contract required that he be available to provide towing services 24 hours a day on a 7-day on and 7-day off basis and that he be able to respond to a request for towing within the Summerland area within 20 minutes of receiving a call. The contract also required that he enclose his tow yard with fencing and barbed wire. [24] At the time, Mr. Bourque resided in a trailer located on a property he rented in Rosedale, British Columbia that also served as the towing yard for his business. He was also the registered owner of the residential property located in Penticton. [25] Because he already had a towing yard, securing one in Summerland was not a priority for Mr. Bourque. However, in order to meet the 20-minute response time for the RCMP contract, it made sense to Mr. Bourque to live and operate the towing business from Summerland. Living beside

the towing yard would also allow him to watch over the vehicles stored there. The verbal lease agreement [26] Prior to agreeing to purchase Theo's Towing, Mr. Bourque approached Mr. Gorman, who he then understood owned the Property, to inquire about leasing the Lenzi Lot as Theo's had done. [27] Mr. Bourque testified that he told Mr. Gorman that given the 20-mintue response requirement of the RCMP contract, he also needed a place to live. According to Mr. Bourque, Mr. Gorman told him about the "four-bedroom house" next to the Lenzi Lot which they looked at together. Mr. Bourque testified that he has two requests regarding the property: (a) that he be able to convert one of the bedrooms into an office; and (b) that he would be able to secure the towing yard with a fence as required by the RCMP contract. [28] Mr. Bourque testified that Mr. Gorman agreed to both requests, the only conditions being the Mr. Bourque complied with all bylaws and the Mr. Gorman did not have to conduct any repairs to the house. [29] Mr. Gorman does not dispute that he discussed and agreed with Mr. Bourque that he could put up a fence around what was going to be the towing yard. He denies he agreed that Mr. Bourque could use the building as his residence or even that they discussed him doing so. [30] The parties agree that as a result of their conversation, Mr. Gorman agreed to lease to Mr. Bourque (a)

the Lenzi Lot which had been previously leased by Theo's Towing; (b) a lot that bordered on Cedar Avenue (the "Cedar Lot"); and (c) the building located at 9403 Cedar Avenue (the "Cedar Building"). There is no dispute that Mr. Bourque used the Lenzi Lot and the Cedar Lot for storing vehicles for the towing business as well as for personal items such as boats, various vehicles, and an RV. [31] Mr. Bourque agreed to pay $1,200 per month for all three areas. According to Mr. Bourque, of that amount, $800 was paid for the Cedar Building and $200 was paid for each of the Lenzi Lot and the Cedar Lot. He said he continued to make pay rent in that amount until 2017 when the Landlord sold a portion of the Lenzi Lot at which time the rent was reduced by $200 to $1,000. [32] Mr. Bourque produced cheques for rent paid in 2017 for $1,000. The notation on those cheques indicate that $800 was payable for "9403 Cedar Ave." and $200 was payable for, variously the "lot behind" or "back component". [33] On cross examination, Mr. Gorman initially denied that the rent was apportioned between the different areas. However, when shown the Mr. Bourque 2017 rent cheques, he testified that he did not recall apportioning the rent but conceded that "could have been the arrangement". The Cedar Building [34] Prior to 1997, the Cedar Building had been used as an office. However, with Mr. Gorman's permission,

a previous tenant had converted a bathroom into a kitchen so that she could use it as a residence. Prior to 2011, the Cedar Building had last been used for residential purposes in May 2006. [35] Mr. Gorman deposed that in 2011, the Cedar Building had four bedrooms, a full bathroom was equipped with a kitchen, stove, fridge, washer and dryer and was fully insulated and that he was able to move in and use it as his residence right away, without having to make any improvements. He deposed that he lived in the Cedar Building and used it as his principal residence until approximately September 2018, at which time he continued to use the Cedar Building, however, not as his principal residence. [36] During Mr. Bourque's time in the Cedar Building, other people lived there are well, including Theodore Tranmer and Lynn Tranmer, who moved in in 2014. The Tranmers occupied one of the bedrooms rent free in exchange for Mr. Tranmer helping Mr. Bourque with work by patrolling the towing yard two to three times a day. [37] In addition, from time to time, tow truck operators employed by Mr. Bourque stayed at the Cedar Building when needed, often for months at a time. Adam Glousher deposed that during the time he resided there in 2011, Mr. Bourque introduced him to Mr. Gorman as his "part time security / roommate" and that he would be watching the property 24/7. [38] Mr. Gorman denies that he

gave Mr. Bourque permission to use the Cedar Building as his residence, or even that they discussed that possibility. He testified that the dilapidated condition of the building made it unsuitable for that purpose and created a "hassle factor" for him that was not worth the rent he was able to collect for it. [39] Moreover, Mr. Gorman denies that he was ever aware that Mr. Bourque used the Cedar Building as his residence. However, he concedes that he agreed that a tow truck operator could stay overnight at times. The tenancy [40] Between 2011 and 2017, Mr. Bourque continued to pay $1,200 for the Cedar Lot, the Lenzi Lot, and the Cedar Building. In 2017, Marilyn Eddison took over the management of the Landlord and started to deal with Mr. Bourque in respect of this tenancy. Prior to 2017, Mr. Bourque had not met or even heard of Ms. Eddison. [41] In May 2017, the Landlord subdivided and sold a portion of the Property that included the Lenzi Lot to a third party. As a result, as of May 2017, the Lenzi Lot was no longer available to Mr. Bourque to lease. He continued to lease the Cedar Lot and the Cedar Building, however for $200 less than he had been paying with the Lenzi Lot. [42] In November 2017, the Landlord fenced the Cedar Lot off from the Cedar Building and stopped leasing the Cedar Lot to Mr. Bourque. Mr. Bourque continued to lease the Cedar Building. However, the rent

remained at $1,000, Mr. Bourque says to reflect an increase in the rent for the Cedar Building from $800 to $1,000. Given that he had no increase in rent in the seven years that he had leased the property, Mr. Bourque was fine with that increase. [43] In September 2018, an incident occurred in which Mr. Bourque alleges that Kim Hallgrimson, the principal of Viking made threats against him and for which Mr. Hallgrimson was placed on a probation order. The terms of the probation order included a term that he have no contact with Mr. Bourque. Despite the probation order, Mr. Bourque no longer felt safe at the Cedar Building and stopped sleeping there on a regular basis. He continues to keep his belongings in the bedroom. V. Issues and positions of the parties [44] Mr. Bourque argues that regardless of his use of the Lenzi Lot and the Cedar Lot, the Cedar Building was leased and used for residential purposes. Accordingly, he argues that the lease of the Cedar Building does not come within the true intent and meaning of the CTA provisions governing the process or the remedies available to a commercial landlord. On that basis, Mr. Bourque submits that the petition should be dismissed and referred to the Residential Tenancy Branch for determination pursuant to the RTA. [45] The Landlord argues that it never agreed that the Cedar Building could be used as a residence. It argues that

the lease of the whole of the leased premises, including the Lenzi Lot, the Cedar Lot, and the Cedar Building, was done in furtherance of Mr. Bourque's towing business. Accordingly, it submits that the CTA applies and that it is entitled to a writ of possession as contemplated by s. 21 of that Act. [46] The issues to be determined in respect of Mr. Bourque are two-fold: a) Is Mr. Bourque's tenancy governed by the RTA or the CTA; and b) If the CTA applies, does Mr. Bourque wrongfully hold possession of the leased premises against the right of the Landlord. [47] As noted, Viking did not file a response and did not appear at the hearing of the petition. The issues to be determined with respect to Viking are: a) Does its case come within the true intent and meaning of the CTA; b) If so, does Viking wrongfully hold possession of the leased premises against the right of the Landlord. VI. Credibility and reliability [48] Given the issue raised by Mr. Bourque, the primary focus of the parties' evidence and submissions were the terms of the lease agreement made between Mr. Bourque and Mr. Gorman regarding Mr. Bourque's use of the Cedar Building as his residence. Their evidence on that issue was contradictory. A consideration in this case will be a determination of whose evidence is most credible, both in respect of that matter and generally. [49] For the reasons set out below, I do not

accept Mr. Gorman's evidence as credible or reliable. [50] As noted above, both Mr. Bourque and Mr. Gorman gave oral evidence by way of MSTeams. At one point during the re-examination of Mr. Gorman by the Landlord's counsel, a whispered voice of someone who was not visible on the video could be heard. The transcript of the re-examination included this exchange: Q: Was there any new lease agreement negotiated at that time [when the Lenzi Lot was no longer available to Mr. Bourque]? A: No. Q: Was there a reduction in rent? Unidentified speaker: Yes. A. Uh, yes, I believe there was. The Court: Mr. Gorman, is there someone else in the room with you, please? A: Uh, there's a - it's an office building here, so -- The Court: Is there another person in - - with you where you're giving evidence? Unidentified speaker: [Indiscernible]. A: Yes. The Court: Okay. I'm going to ask that whoever's in the room with you, please leave. A: Okay. [Added emphasis.] [51] At that point, Ms. Eddison appeared on the screen leaving the room from which Mr. Gorman was giving evidence. [52] The transcript of that morning's evidence was subsequently obtained. [1] It revealed that was not the only instance that Ms. Eddison prompted Mr. Gorman with evidence. [2] The following is an exchange during the cross-examination of Mr. Gorman. Although the voice of the unidentified speaker was recorded, it was not

detected during the examination: Q: Mr. Gorman, when did you learn that [Mr. Bourque] was asserting that this is a residence of his? Unidentified speaker: During this procedure. A: During this procedure, I guess. Q: And how did you learn of this? A: Well, during the procedure. Q: In what way? Did you read it off a document? Was it communicated to you by someone? A: It would have been something like that. Q: Which one? Unidentified speaker City bylaw [indiscernible]. A: Well, there was city bylaw officers involved. There was documents. There was - - there was a lot of things. [Added emphasis.] [53] This is another exchange in the same cross-examination: Q: What -- how - what have you done in reaction to learning that this [the Cedar Building] was being used as a residence? Unidentified speaker: You gave - you gave notice. A: Well, notice was given. You know, I wasn't in direct - you know, it was through my agents that were - the notices were given. Um, they'd been given for - for a long time. [Added emphasis.] [54] Neither Mr. Gorman nor Ms. Eddison appeared on the next hearing day. However, through counsel for the Landlord, Mr. Gorman explained that during the examinations, he focussed on the camera and did not interact with Ms. Eddison, nor did Ms. Eddison interfere with his evidence in any way. Also through counsel, Ms. Eddison explained that she did not intend to be in the

room with Mr. Gorman but got "stuck" there after assisting him with technical issues. She explained that she did not make any eye contact with Mr. Gorman, nor did she write any notes, make signals, or otherwise interfere with his evidence, and did not try to influence or coach Mr. Gorman. [55] At the request of counsel for Mr. Bourque, I allowed the cross-examination of Mr. Gorman and Ms. Eddison on the issue. [56] On cross-examination, Ms. Eddison confirmed that she was the "unidentified speaker" in the transcript. She explained that she had a habit of "filling in missing words" and completing sentences for her husband who struggles with words and names. She suggested that she might have done the same for Mr. Gorman on the day the evidence was given, however without knowing she was doing so and without any intention to do so. [57] Mr. Gorman denied knowing that Ms. Eddison was in the room with him. He testified that he was not even aware she was there until he was asked about it when her whispers became apparent to the Court. [58] Unlike Ms. Eddison, Mr. Gorman could not positively identify the "unidentified speaker", although when put to him, he conceded that "it could well have been" Ms. Eddison. He went on to suggest, however, that he could have been the unidentified speaker noted on the transcript. He testified that he did not remember anyone speaking before him or

whispering the answers to him. When asked whether it "sheer coincidence" that his answers to the questions matched that of the "unidentified speaker", he responded "I guess so". [59] I reject the evidence of both Ms. Eddison and Mr. Gorman in respect of this matter. [60] First, Ms. Eddison's own account of what happened is inconsistent. In her first account, as explained through counsel, she denied having any interaction with Mr. Gorman. Under oath, however, she conceded that she may have "filled in the missing words" for Mr. Gorman, although that was not her intention. In my view, whether intentional or not, her concession is inconsistent with the assertion that she did not interfere with Mr. Gorman's evidence. [61] Second, both witnesses' explanation under oath is simply incredible. Ms. Eddison's suggestion that she was unknowingly completing a sentence as she would for her husband is too fanciful to even warrant lengthy consideration. I give it no credence. Having reviewed the transcript and having heard the audio of the morning's proceeding, I have no hesitation in concluding that Ms. Eddison deliberately prompted Mr. Gorman's evidence and that she did so with the intent of advancing the Landlord's position in this proceeding. Not only does Ms. Eddison's assistance to Mr. Gorman discredit the reliability of Mr. Gorman's evidence, her clear disregard for the fact finding

process discredits her reliability as well. [62] Mr. Gorman's suggestion that he may have been the "unidentified speaker" and that he was not aware that Ms. Eddison was in the room is equally, if not more, incredible than Ms. Eddison's attempt to explain her conduct. Again, having heard the audio recording, there is no doubt that the whispered voice is someone other than Mr. Gorman's. The fact that his responses mimic exactly the responses provided by the "unidentified speaker" belie any assertion that he did not hear those responses. [63] Moreover, he did not express any surprise when Ms. Eddison appeared on the video leaving the room. The physical proximity between Mr. Gorman and Ms. Eddison as she did so leaves little uncertainty that he must have known she was there. [64] Perhaps worse, when given the opportunity to disclose Ms. Eddison's presence at the time, Mr. Gorman "doubled down" in his deceit by attempting to attribute the whisper to the fact that he was in an office building. I take the implication of that statement to be that there were extraneous noises that could account for the whisper. [65] In my view, Mr. Gorman's evidence was a deliberate attempt to mislead the Court regarding the circumstances in which he gave evidence. That conduct, together with what I have found to be Ms. Eddison's influence on his evidence, make Mr. Gorman an unreliable witness. [66] The

Court's ability to make just and fair decisions is dependent on the integrity of the fact finding process. Mr. Gorman's and Ms. Eddison's blatant disregard for that process undermines the ability of the Court to find the truth, truth being the foundation of the justice system. Their grasp of the importance of the fact finding process, and perhaps even the truth itself, is demonstrably lacking and makes them wholly unreliable witnesses. [67] For that reason, except where consistent with other independent evidence, I reject the affidavit and oral evidence of both Mr. Gorman and Ms. Eddison in its entirety. VII. Discussion and analysis A. The purported termination of Mr. Bourque's lease 1. Is Mr. Bourque's tenancy governed by the RTA or the CTA? [68] The original lease, made in 2011, included the Lenzi Lot, the Cedar Lot, and the Cedar Building. However, on the issue of which of the RTA or the CTA apply, the parties focussed their evidence and submission on Mr. Gorman's use of the Cedar Building as his residence. [69] Mr. Gorman denies that he agreed to lease the Cedar Building to Mr. Bourque for use as his residence and maintains that he was never aware that Mr. Bourque used it for that purpose. On the other hand, Mr. Bourque testified that he and Mr. Gorman discussed that he would be using the Cedar Building for his residence when they entered into the lease agreement in 2011.

He testified that Mr. Gorman agreed to, and was aware, that he used the Cedar Building for that purpose. [70] As I have rejected Mr. Gorman's evidence, I accept Mr. Bourque's evidence. I have no hesitation in concluding that Mr. Bourque discussed with Mr. Gorman the fact that he intended to reside in the Cedar Building when they entered into the oral lease agreement in 2011. I also find that Mr. Bourque did, in fact, reside at the Cedar Building on a full-time basis from 2011 to 2018, after which he continued to reside there, however on a less than full-time basis. [71] However, that conclusion is not necessarily determinative of the exclusive application of the RTA. In fact, s. 4 of the RTA sets out a list of those circumstances in which the lease or use of "living accommodation" is not subject to its provisions. They include, pursuant to s. 4(d): (d) living accommodation included with premises that (i) are primarily occupied for business purposes, and (ii) are rented under a single agreement [72] Given that provision, to determine whether the RTA applies, the question is not whether Mr. Bourque resides at the Cedar Building (ie, uses it as his "living accommodation") but, rather, whether the Cedar Building is included with premises that are (a) "primarily occupied for business purposes" and (b) rented under a single agreement. If the answer to both of those questions is yes, the RTA does not apply.

2. Were the premises "primarily occupied for business purposes"? [73] As the starting point on this analysis, it is significant that Mr. Bourque's interest in the premises stemmed from the purchase of Theo's Towing. There is no dispute that his purchase of that commercial enterprise was the impetus for entering into the lease with the Landlord. Indeed, there is no evidence to suggest that Mr. Bourque would have had any discussions with Mr. Gorman or entered into the lease of the Lenzi Lot and the Cedar Lot, but for his purchase of the business. He did so for the commercial purpose related to the purchase of the commercial enterprise. [74] Mr. Bourque's request to lease the Cedar Building was also motivated by the terms of his towing contract that required that he be able to respond to calls in the Summerland area within 20 minutes. While it was not a requirement of the contract, Mr. Bourque conceded that having a residence beside the towing yard would allow for enhanced security over the vehicles that had been towed. [75] It is also notable that the other occupants of the Cedar Building, including Mr. Tranmer, Mr. Glousher, and the other tow truck operators all performed work for OK Region Towing. Mr. Tramner and Mr. Glousher provided security and watched over the vehicles stored at the towing yard. The other tow truck operators were able to respond to calls in a timely manner.

In fact, Mr. Tramner was compensated for his work by free rent at the Cedar Building. While I accept that all of the occupants of the Cedar Building resided there, like Mr. Bourque, they did so as part of their work in furtherance of the Mr. Bourque's towing business. [76] Collectively, the above supports the conclusion that when the lease was entered into in 2011, the whole of the leased premises, including the Lenzi Lot, the Cedar Lot, and the Cedar Building were intended to be occupied primarily for business purposes. [77] I accept that after 2017, the Lenzi Lot and the Cedar Lot were no longer available to Mr. Bourque to use as his towing yard. However, even then, he was able to dispatch his tow truck from the Cedar Building in accordance with requirement of the RCMP contact. [78] In any event, regardless of the use after 2017, having originally entered into the lease in 2011 "primarily for business purposes", Mr. Bourque cannot unilaterally change that purpose. [79] A similar issue was considered in Gardiner v. 857 Beatty Street Project, 2008 BCCA 82. In that case, the tenant leased "live / work" studio premises specifically constructed to provide affordable space for artists to work and live. The lease, applicable zoning bylaw, and development permit required that the space be used for "live / work" purposes, and primarily for business purposes. Having stopped creating

art in the space, the tenant argued that the premises were used for residential purposes and, accordingly, the RTA applied to the lease. The Court disagreed, finding at para. 40 that "a tenant cannot change the essential nature of a tenancy by unilaterally choosing to use it in a manner inconsistent with its original and intended use". [80] Accordingly, having concluded that the original and intended use of the leased premises, including the Cedar Lot, the Lenzi Lot, and the Cedar Building, was for business purposes, Mr. Bourque cannot unilaterally change the commercial nature of the tenancy. [81] The next issue to be determined is whether the "living accommodation" and the rest of the premises were rented under a single agreement.

3. Were the living accommodations and the rest of the premises leased under a single agreement? [82] There is no dispute that when originally leased to Mr. Bourque, the leased premises was comprised of the Lenzi Lot, the Cedar Lot, and the Cedar Building. However, as Mr. Bourque testified, the lease agreement separately contemplated the amount of rent payable for each of those areas: $800 for the Cedar Building and $200 for each of the Lenzi Lot and the Cedar Lot. That evidence is consistent with rent cheques written in 2017 on which Mr. Bourque noted that $800 of the $1,000 rent payment was allocated to the Cedar Building and $200 to the then remaining Cedar Lot. [83] It is also consistent with the fact that Mr. Bourque's rent decreased by $200 when the Landlord took back the Lenzi Lot in 2017. I am satisfied that the fact that the rent did not decrease by a further $200 when the Landlord took back the Cedar Lot was due to an increase in the rent payable for the Cedar Building. [84] Although Mr. Gorman initially denied allocating a specific amount of rent to each of the areas comprising the leased premises, on cross-examination, he conceded that "could have been the arrangement". In light of my assessment of Mr. Gorman's credibility and the written evidence in the form of the 2017 rent cheques, I accept that it was. [85] On this inquiry, it is also significant that the

Landlord treated the areas as separate, first when it sold the Lenzi Lot and then when it fenced off the Cedar Building from the Cedar Lot, depriving Mr. Bourque of the use of those two areas. Not only does the delineation evince the physically distinct parts of the leased premises, it is also significant in two other ways. [86] First, it is inconsistent with the position that the three areas comprised a single leased premises under one agreement. Second, it highlights that neither the Landlord nor Mr. Bourque considered that the existence of the lease was dependent or conditional on the lease of all three areas together. [87] Collectively: (a) the distinct areas comprising the Lenzi Lot, the Cedar Lot, and the Cedar Building, (b) the negotiation of a distinct rent payable for each of the areas, (c) the Landlord's severance of the Lenzi Lot and the Cedar Lot from the Cedar Building, and (d) the fact that the lease of one was not dependent or conditional on the lease of the others is consistent with the lease of the three distinct areas being made under separate agreements. [88] I find that the Cedar Building, used by Mr. Bourque as his "living accommodation", was not rented under a "single agreement" with the Cedar Lot and the Lenzi Lot. The second required element of s. 4(d) is not satisfied. Accordingly, the exclusion of the "living accommodation" from the application of the

RTA does not does apply. [89] Before turning from this issue, the Landlord argues that even if the RTA applies, pursuant to s. 44(1)(d) of the RTA, the tenancy ended when Mr. Bourque discontinued using its as his primary residence in 2018. I do not agree with that submission. [90] Section 44(1)(d) provides that a tenancy ends when the "tenant vacates or abandons the rental unit". In my view, while Mr. Bourque may no longer use the Cedar Building as his primary residence, he neither vacated nor abandoned the premises. In fact, the Landlord commenced the proceedings against Mr. Bourque on the basis that he has not vacated the premises despite its demand that he do so. In my view, s. 44(1)(d) does not apply to oust the application of the RTA. [91] I conclude that the lease of the Cedar Building was separate from the lease of the Cedar Lot and the Lenzi Lot and is properly governed by the RTA. That being the case, I am unable to conclude that the proceeding against Mr. Bourque in respect of the Cedar Building is clearly one coming under the true intent and meaning of s. 18 of the CTA. [92] Accordingly, the petition, as it pertains to the Cedar Building, is dismissed.

4. The Cedar Lot and the Lenzi Lot [93] The conclusion that the lease of the Cedar Building is governed by the RTA does not apply to the Cedar Lot or the Lenzi Lot, neither of which were used as "living accommodation". I am satisfied that in the circumstances described above: a) the lease of the Cedar Lot and the Lenzi Lot are commercial leases and come with the true intent and meaning and s. 18 of the CTA; b) Mr. Bourque's tenancy of the Cedar Lot and the Lenzi Lot pursuant to those leases has been terminated; c) to the extent that Mr. Bourque continues to occupy either the Cedar Lot or the Lenzi Lot: i. he does so in wrongful possession of the premises; and ii. pursuant to s. 21 of the CTA, a writ of possession of the Cedar Lot and the Lenzi Lot is to be issued in the form set out in Form 1 of the Schedule to the CTA. B. The purported termination of the Viking lease [94] Having no other evidence before me, I accept that the Landlord has established that, having been served with a valid notice of termination and a demand for possession, Viking has failed to vacate the premises leased by the Landlord and continues to be in wrongful possession of those premises. [95] Pursuant to s. 21 of the CTA, I order that the Landlord is entitled to a writ of possession in the form set out in Form 1 of the Schedule to the CTA. VIII. Summary of disposition [96] In summary: a) The petition, as

it relates to the Cedar Building, is dismissed; b) With respect to the Cedar Lot and the Lenzi Lot, the Landlord is entitled to: i. A declaration that Mr. Bourque's lease of the Cedar Lot and the Lenzi Lot has been terminated; and ii. A writ of possession of the Cedar Lot and the Lenzi Lot in the form set out in Form 1 of the Schedule to the CTA; c) With respect to Viking, the Landlord is entitled to: i. A declaration that Viking's lease of its portion of the Property (the "Viking Premises") has been terminated; and ii. A writ of possession of the Viking Premises in the form set out in Form 1 of the Schedule to the CTA. IX. Costs [97] At the conclusion of the trial, counsel advised that they would like to address the issue of costs on the outcome of these reasons for judgment. If that remains the case, written submissions with respect to Mr. Bourque's lease are to be filed as follows: a) Any party wishing to claim costs may make written submissions not exceeding five pages, footnoting citations with pinpoint references. Any submissions are to be filed and served within 30 days of the date of these reasons for judgment; b) The party against whom costs are claimed may file and serve written responsive submissions not exceeding three pages, footnoting citations with pinpoint references, within 14 days of the service of the submissions of the claiming party; and c) Written reply

submissions not exceeding two pages may be filed and served within one week of service of the opposing party's submissions. [98] Given the Landlord's success against Viking, the Landlord is entitled to costs against Viking, limited to those costs associated with pre-hearing matters, preparation, and all other attendances required for the s. 18 application and a one-day hearing for the s. 21 hearing. "Ahmad J." [1] The transcript of the other hearing day on which Mr. Gorman gave evidence was not obtained. [2] The transcript also revealed numerous other instances in which indiscernible voices were recorded.