Canada Case Law

Canada Life Assurance Company v. Aphria Inc.

Court

Court of Appeal for Ontario

The Court of Appeal held it was bound by Highway Properties and attendant Ontario Court of Appeal authority: a landlord that refuses to accept repudiation and insists the lease remain in force owes no duty to mitigate; additionally s.19.03 of the lease limits lost annual rent to two years only where the landlord terminates the lease, and therefore the clause did not cap damages where the landlord kept the lease alive; appeal dismissed.

Source excerpt

• Duty to mitigate
• Repudiation of lease
• Lease interpretation
• Stare decisis
• Summary judgment

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Fenske v. MacLeod

Court

Supreme Court of British Columbia

The court held that changing one back-door lock did not repudiate the lease, but the landlord later wrongfully distrained and sold equipment, attracting double damages.

• Quiet enjoyment
• Repudiation of lease
• Wrongful distraint
• Rent distress act s.10
• Measure of damages
• Mitigation

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1465152 Ontario Limited v. Amexon Development Inc.

Court

Court of Appeal for Ontario

The Court dismissed the appeal, upholding the application judge’s interpretation that s.13.07 did not bar equitable relief where the landlord repudiated the lease and sought to trespass; the February 28, 2014 Notice to Vacate was void and a permanent injunction restraining the landlord from re-entering and from failing to provide services as required by the lease was a proper remedy because damages were inadequate to vindicate the tenant’s property interest.

Source excerpt

• Lease interpretation
• Repudiation of lease
• Injunctions
• Limitation of remedies clause
• Demolition clause
• Quiet enjoyment

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TNG Acquisition Inc. (Re)

Court

Court of Appeal for Ontario

A repudiation notice given during CCAA proceedings does not itself terminate a lease; absent the landlord's acceptance/election, an agreed contractual termination or resolution in a filed plan, the landlord/tenant relationship continues into bankruptcy and the trustee may validly disclaim the lease under the BIA, enabling disallowance of the landlord's claimed damages beyond allowed preferred amounts.

Source excerpt

• Repudiation of lease
• Disclaimer of lease
• Landlord election
• Proof of claim
• Trustee disclaimer
• Effect of ccaa orders

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Butcher v. Westgate Builders and Rentals Ltd.

Court

Nova Scotia Small Claims Court

The lease granted the right to possess and thus the appellants were tenants under s.3(2)(b); their repudiation before possession converted the landlord's remedy into a claim for damages, not 'outstanding rent' as of the lease commencement, so s.12(5) required return of the security deposit and the landlord could not retain it to satisfy damages that were not outstanding rent.

Source excerpt

• Security deposit
• Repudiation of lease
• Mitigation of damages
• Statutory interpretation
• Termination of lease

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Huang & Danczkay Limited v. Board of Regents of Victoria University

Court

Court of Appeal for Ontario

There was no evidence to support the lessee's defence that the lessor repudiated the lease or breached a fundamental term; accordingly the lessee was not justified in withholding rent and the appeal by the lessor failed.

Source excerpt

• Repudiation of lease
• Fundamental breach
• Non-payment of rent
• Costs (solicitor and client)

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MacKenzie v. Fisher

Court

Nova Scotia Court of Appeal

No evidence supported appellant's claim of accord and satisfaction; the Board's factual finding that the tenant's rent obligation ceased when the landlord secured a new tenant was not manifestly erroneous; although a landlord may reserve a right to damages after accepting repudiation, reletting to a new tenant for the period alleged removed any proven loss, and absent evidence of omission the Supreme Court judge rightly declined to order a supplemental report.

Source excerpt

• Repudiation of lease
• Acceptance of surrender
• Damages for breach of lease
• Residential tenancies board procedure
• Accord and satisfaction
• Supplementary report/remission

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