Constructive Eviction (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-04
CLNP Page ID:	1843
Page Categories:	[Interference of Reasonable Enjoyment (LTB)]
Citation:	Constructive Eviction (RTA), CLNP 1843, <5f>, retrieved on 2024-05-04
Editor:	Sharvey
Last Updated:	2022/01/12

Bassiouny v. Lo, 2008 CanLII 68883 (ON SC)

[57] Generally, where there is a structural problem in the leased premises, the lessee's remedy is in damages. A right to terminate a lease for failure to repair would require proof of a "constructive eviction" by the landlord; where the landlord intentionally deprives the tenant of the enjoyment of the leased premises (see in this regard Krenzel et al v. Interprovincial Security Patrol (Red Deer) Ltd. (1982) 38 A.R. 153; Johnston v. Givens 1941 CanLII 58 (ON CA), 1941 4 D.L.R. 634 (Ont. C.A.); Crescent Motors v. Northwest Tent 1972 W.W.R. 694; Winbaum v. Zolumoff (1956) O.W.N. 24 (Ont. C.A.).

846-6718 Canada Inc. v. 1779042 Interior Ltd, 2018 ONSC 1563 (CanLII)

[285] The Lease provides that the Landlord shall provide the premises and fixtures on the commencement date in good working order. This contractual provision is not identified as a condition or as a representation or warranty. That, however, is not determinative of the issue.

[286] Unlike the APA, the Lease contains no clause identified as representations or warranties by the Landlord.

[287] The Lease contains a covenant by the Landlord to provide the plaintiff with quiet enjoyment.

[288] Given that entering into the Lease was a condition as to the APA purchase of the Assets and not the reverse and that the purpose of the plaintiff’s purchase of the Assets was to carry on the business of BOTB in the Premises and given the identical level of knowledge by the Landlord and the Vendor regarding the elements in the Premises requiring repair, this contractual condition in the Lease constituted a condition and not a warranty.

[289] The action and inaction by the two corporate defendants is identical.

[290] A tenant will not be able to treat the lease as terminated unless the breach is a fundamental breach, in which the tenant is deprived of substantially the whole benefit of the lease: Chevalier Automobiles Inc. v. Francis (1996), 1 O.T.C. 368 (Gen. Div.), at para. 68; see also 1723718 Ontario Corp. v. MacLeod, 2010 ONSC 6665, at paras. 86-97.

[291] “Constructive eviction” is another scenario in which the tenant may walk away from the agreement. Constructive eviction occurs where:

(a) the breach is intentional or the probable consequence of intentional conduct;

(b) the interference has the character of permanence or wrongfulness; and

(c) the inference is so substantial or intolerable as to make it reasonable for the tenant to vacate: Arangio v. Patterson, [1993] O.J. No. 448 (Gen. Div.), at para. 23.

Where there is constructive eviction, the tenant is entitled to vacate the premises, no longer pay rent, receive damages for consequential loss (such as loss of profit, moving expenses, or damages to growth of business), and potentially receive punitive or exemplary damages (Arangio, at paras. 24-31).

SOT-75285-16 (Re), 2017 CanLII 28640 (ON LTB)

1. The Tenant alleged the following:

i) The superintendent KR entered her premises without her permission, without notice, and in her absence, on September 14, 2016, to carry out a third (3rd) attempt at repairing the vent in her unit.

ii) The Landlord “on purpose” delayed necessary repairs and denied bed bug treatment because she is an “inconvenient tenant”, having written letters and even gone to “Housing” regarding the condition of the building.

iii) The Landlord harassed her with an N5 notice, accusations of misconduct, threats of eviction and a notice of rent increase, in an effort to effect “constructive eviction”.

...

19. The Tenant claims harassment and constructive eviction, through the Landlord’s “false” accusations of misconduct, service of an N5 and service of a notice of rent increase. The Tenant also claims that the Landlord, through the pest control company, harassed her by stating that some of her items (some un-vacuumed, some un-laundered, some un-bagged) compromised their bed bug treatment.

20. The Landlord served the Tenant with an N5 dated August 25, 2015 after the Tenant posted, without permission, several notices in the common areas which showed an enlarged image of a bed bug and warned: “IMPORTANT NOTICE! We have a serious bed bug infestation in our building!” The Tenant is barred under Section 29 (2) of the Act from raising the issue in this application filed on October 3, 2016, based on the N5 which was served on August 25, 2015. In any event, I find that the Landlord, by serving an N5, was exercising a right under the Act. I find no evidence of bad faith and have no basis for penalizing the Landlord for exercising its statutory rights.

...

26. The Tenant has not met the burden of proof to establish harassment and “constructive eviction”. There is no basis for any remedies in the circumstances.