Commercial Tenancy - Re: Eviction Process: Difference between revisions

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[[Category:Articles Commercial Tenancy]]
[[Category:Commentary]]


==The Law==
==The Law==
Line 42: Line 42:
*** If requiring the lessee to make compensation in money for the breach;
*** If requiring the lessee to make compensation in money for the breach;
*** Consequences if the lessee fails within a reasonable time thereafter to remedy the breach, if it is capable of remedy;
*** Consequences if the lessee fails within a reasonable time thereafter to remedy the breach, if it is capable of remedy;
==Overview==
Application of the CTA to Trailer Park Seasonal Spots
1. Section’s 1 and 2 of the Commercial Tenancies Act, R.S.O. 1990, c. L.7 (“CTA “ or “the Act”) states:
::1. In this Act,
:::“landlord” includes a person who is lessor, owner, the person giving or permitting the occupation of the premises in question, and these persons’ heirs and assigns and legal representatives, and in Parts II and III also includes the person entitled to possession of the premises;
:::“tenant” includes a person who is lessee, occupant, sub-tenant, under-tenant, and the person’s assigns and legal representatives.
2. This Act does not apply to tenancies and tenancy agreements to which the Residential Tenancies Act, 2006 applies.
::2. What follows is the argument that, where a tenant is in possession of a commercial property, which in this case means a seasonal camping spot used for recreational purposes, the termination and enforcement measures used by the landlord must comply with the law and the corresponding legal procedures. What is submitted by the applicant is that, the landlord is not permitted to use any force, including reasonable force, to enforce the belief that a commercial tenancy has been terminated by removing the tenant from the leased land without an order of the court, duly executed by the sheriff.
3. In the case of Regina v. Doucette, 1960 CanLII 138 (ON CA) (“Doucette “) the court of appeal observed that there are limitations on the right of a private party to use self-help methods to enforce lawful rights. The court specifically cited Court of Appeal in R. v. Shand (1904), 1904 CanLII 109 (ON CA), 7 O.L.R. 190 stating:
“The limitations upon the right of an owner to repossess his goods without process of law are stated clearly and succinctly in 3 Blackstone, Commentaries, pp.3-4, from which I quote
::Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, ... in which case the owner of the goods ... may lawfully claim and retake them wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace. The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; ... if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again without force or terror, the law favors and will justify his proceeding. But as the public peace is a superior consideration to any one man's private property; and as, if individuals were once allowed to use provate force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society.
4. Further in Doucette (supra) the Ontario Court of Appeal observed that:
::“This passage in Blackstone was commented upon and applied by Parke, B., in Patrick v. Colerick (1838), 3 M. & W. 483. See also Davis v. Whitridge, (1847), 2 Strob. 232.
It is very clear that whatever rights the vendor or his assignee or their authorized agent might have had under the terms of the conditional sales contract (the purchase money being in arrear and unpaid) to enter upon Chappell's premises to resume possession of the goods in question, it would be illegal for them to take such possession by force. Traders Bk. v. Browne Mfg. (1889), 18 O.R. 430, cited by counsel for the respondents is authority for this proposition. In Re Nu-Way Meat Market (1940), 22 C.B.R. 46, it was held that the liquidator might claim possession of a truck sold to a debtor under suspensive conditions of property, where the vendor had taken possession of it by force and deceit since the winding up, and had neglected to furnish the liquidator with the detailed account of what was still owned by the debtor; whatever the terms of the deed, no one had the right to take the law into one's own hands.
[...]
There must be reasonable limits imposed upon the right of self-help assumed and asserted by private individuals in order to preserve peace and tranquillity and to avoid the evil consequences which are bound to flow from insistence upon a right to use private force. Under s. 39 of the Cr. Code, the peaceable possessor of movable property under a claim of right is protected from criminal responsibility (although not from civil responsibility) for resisting its taking even by the person legally entitled.”
5. To further support the position that a landlord’s remedy of self-help is limited to consent only, the applicant submits that in the case of Divitcos v. CompCorp Life Insurance Co. 1997 CarswellOnt 547 Ontario Court of Justice (General Division), at paragraphs 53, and 66 the court states:
“53. If the solicitor counselled or countenanced these clearly illegal acts of his clients his own conduct was outrageous, and well below the standard which the court is entitled to expect from any solicitor licenced to practice as such in Ontario. The policy against self-help - against the recovery of possession of residential premises except under the authority of a writ of possession - is too well established to allow for an exculpatory plea of ignorance of the law from a solicitor purporting to act in this area of the law. The provision prohibiting the changing of locks is very clear - and may be seen as part of the larger policy against self-help. I am convinced that instances of self-help with respect to residential tenancies have a significant potential for begetting violence. A majority of the persons in Metropolitan Toronto live in rented accommodation. The public interest in avoiding self-help remedies is obvious and the public policy is clearly reflected in the legislation. It is not tolerable that solicitors, or other representatives of landlords or tenants, whether through ignorance or defiance, countenance, counsel or assist with illegal activities such as those carried out in this case by Diane and Steve Divitcos.
66. In addition to the arguments based on the relevant provisions of the Mortgages Act and the Landlord and Tenant Act referred to above, the moving parties also rely upon the provisions of rule 60.10(2) of the Rules of Civil Procedure which states:
The court may grant leave to issue a writ of possession only where it is satisfied that all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief.”
6. It is submitted by the applicant that the rental of a seasonal plot of land to park a recreational vehicle (“RV”) is clearly a case where an owner is “…permitting the occupation of the premises in question…”. The applicant further submits that where a license is issued to occupy a seasonal camping location, the licensee is a tenant as defined by section 1 of the CTA. Given the above it is submitted that the CTA governs the relationship between the applicant and the respondents.
7. Section 4, 20. (1), and 74. (1) of the CTA reads:
“4. All persons being grantees or assignees of the Queen, or of any person other than the Queen, and the heirs, executors, successors and assigns of every of them, shall have and enjoy like advantage against the lessees, their executors, administrators, and assigns, by entry for non-payment of the rent, or for doing of waste, or other forfeiture, and also shall have and enjoy all and every such like and the same advantage, benefit, and remedies, by action only, for the non-performance of other conditions, covenants, or agreements, contained and expressed in the indentures of their said leases, demises or grants against all and every of the said lessees and grantees, their executors, administrators, and assigns as the said lessors or grantors themselves, or their heirs or successors, might have had and enjoyed at any time or times.
“20. (1) Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture, whether for non-payment of rent or for other cause, the lessee may, in the lessor’s action, if any, or if there is no such action pending, then in an action or application in the Superior Court of Justice brought by the lessee, apply to the court for relief, and the court may grant such relief as, having regard to the proceeding and conduct of the parties under section 19 and to all the other circumstances, the court thinks fit, and on such terms as to payment of rent, costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future as the court considers just.
(…)
74. (1) Where a tenant after the tenant’s lease or right of occupation, whether created by writing or by parol, has expired or been determined, either by the landlord or by the tenant, by a notice to quit or notice pursuant to a proviso in a lease or agreement in that behalf, or has been determined by any other act whereby a tenancy or right of occupancy may be determined or put an end to, wrongfully refuses or neglects to go out of possession of the land demised to the tenant, or which the tenant has been permitted to occupy, the tenant’s landlord may apply upon affidavit to a judge of the Superior Court of Justice to make the inquiry hereinafter provided for and the application shall be made, heard and determined in the county or district in which the land lies.”
Termination of a Lease and Enforcement of Such Termination
8. Section 74 (1) of the CTA was given some clarity of application in 2503257 Ontario Ltd. v. 2505304 Ontario Inc. (Good Guys Gas Bar), 2020 ONCA 149 (“Good Guys”). In Good Guys the Court of Appeal for Ontario at paragraph 3 the court found:
“We disagree. The application judge granted vacant possession to the respondent which, in our view, is caught under s. 78 (1) of the Commercial Tenancies Act, R.S.O. 1990. C. L.7, when read in light of the statutory scheme set out in s. 74 to 78, which deal with who is entitled to possession after a notice under the Commercial Tenancies Act is served. The February 13, 2019 order of Hourigan J.A., refusing a stay of the order under appeal and consequentially granting a writ of possession, was ancillary to the order granting vacant possession. It is therefore not an impediment to the Divisional Court’s jurisdiction to hear this appeal.”
9. It is submitted by the applicant that what the Court of Appeal is saying in Good Guys, is that once a landlord gives notice for possession under the CTA, for example under section 19 (1) of the CTA, the correct procedure is for the landlord to follow where the landlord believes that the tenant is wrongly failing to give up vacant possession of the leased premises, is to apply to the Superior Court of Justice under section 74 for a writ of possession.
10. The above interpretation of the correct procedure for enforcement of the termination of a land lease under the CTA is further supported by section 4 of the CTA. Section 4 states in part:
“… any person other than the Queen, …, shall have and enjoy … advantage against the lessees, …, by entry for non-payment of the rent, or for doing of waste, or other forfeiture, and also shall have and enjoy all and every such like and the same advantage, benefit, and remedies, by action only, for the non-performance of other conditions, covenants, or agreements, contained and expressed in the indentures of their said leases, demises or grants against all and every of the said lessees and grantees, … as the said lessors or grantors themselves, …”
11. It is submitted by the applicant that section 4 of the CTA can be understood in the following manner. A landlord has the automatic right of re-entry with out an application under section 74 (1) of the CTA for a limited set of conditions, (1) whereby a tenant has failed to pay rent as due under the lease, (2) where a landlord is required to dispose of waste. Where section 4 reads “…or other forfeiture….” The applicant submits that the interpretation of that phrase is to be read as a catch-all where the act does not specifically speak to conditions under which forfeiture may take place.
12. The applicant submits that the balance of section 4 of the CTA must be read as requiring a landlord to apply under section 74 (1) where the landlord believes that the tenant is in a position of “…non-performance of other conditions, covenants, or agreements, contained … in the … lease(s)…”. See: CTA section 4
13. Further in section 74 (2) of the CTA, the Act reads:
“The court shall in writing appoint a time and place at which a judge will inquire and determine whether the person complained of was tenant to the complainant for a term or period that has expired or has been determined by a notice to quit or for default in payment of rent or otherwise, and whether the tenant holds the possession against the right of the landlord, and whether the tenant, having no right to continue in possession, wrongfully refuses to go out of possession.”
14. The principle to be extracted in 74 (2) of the act is, where there is a dispute between the landlord and a tenant as to the validity of notice given under section 19 (1) of the CTA, only a judge of the Superior Court of Justice can make a determination if a breach of the lease or other provision of the Act has occurred. The applicant submits that an application under section 74 (2) of the Act is required where a tenant does not voluntary give up possession of the leased premises.
15. In the current fact situation, the respondents deprived the applicant of lawful use of the applicants seasonal camping site by asserting a Trespass to Property violation had occurred and used the services of the Waterloo Regional Police Services Board to have the application removed from his camping site.
16. The above position is supported by the case of Central Guaranty Trust Co. v. McRae, 1993 CanLII 8542 (ON SC) (“McRae”). In McRae the court states:
“Before determining whether a sheriff has the authority to refuse to execute a writ of possession issued by the court, I must first determine whether there are appropriate safeguards in place to ensure that writs of possession are not issued arbitrarily, but only in accordance with principles of fairness and with full respect accorded to the rights of occupants of the subject premises. I turn now to an assessment of that question.
The procedure
After judgment for possession is obtained, the occupants of the premises must be given formal notice that possession will be sought, in accordance with the procedures mandated by rule 60.10 of the Rules of Civil Procedure, and by the decision of Master Dunn in Jamort Investments Ltd. v. Fitzgerald, 1968 CanLII 371 (ON SC), [1968] 1 O.R. 541 (Master's Ch.).
After notice is given, the occupants may apply to the court for relief. If they do not do so within 14 days, then an ex parte motion for leave to issue a writ of possession may be brought before a master. On the return of the motion, an affidavit or other suitable evidence is presented, indicating, inter alia, the names of the occupants of the property, the circumstances of their occupancy, and attesting to the fact that notice of impending eviction has been given. The master then must make a determination as to whether or not any occupant of the premises is a tenant within the meaning of that word in the Landlord and Tenant Act. If the occupancy is governed by the Act, then s. 46(1) of the Mortgages Act precludes the issuance of the order.”
Unlawful Application of the Trespass to Property Act
17. The Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”) states at paragraph’s 1, and 2:
“1 (1) In this Act,
“occupier” includes,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, even if there is more than one occupier of the same premises; (“occupant”)
2 (1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,
is guilty of an offence and on conviction is liable to a fine of not more than $10,000. R.S.O. 1990, c. T.21, s. 2 (1); 2016, c. 8, Sched. 6, s. 1.”
18. It is the submission of the applicant that the applicant was an occupier as contemplated under the Trespass to Property Act, R.S.O. 1990 as the applicant was a “…person who is in physical possession of premises…”, as per section 1 of the TPA. It is the applicants’ position that the applicant was acting under the lawful authority confirmed by contract via the license to occupy granted by the respondents.
19. In the case of Davidson v. Toronto Blue Jays Baseball Ltd., 1998 CanLII 14938 (ON SC) (“Davidson”) at paragraph 19 the court found that:
“[19] I conclude after review of the terms of the ticket, and the relevant case law that the defendants are not entitled to revoke at will the licence granted to the plaintiff, and to treat the plaintiff as a trespasser after he refused to voluntarily leave the SkyDome.”
20. In Davidson (supra), the court continued at paragraphs 37, 38, and 39 stating:
“[37] In what circumstances can a ticket holder be arrested and removed from the premises? I emphasize that although the management cannot rely upon the provisions of the Act to arrest and evict ticket holders, the police and the Blue Jays security personnel are not without remedies. The reasons in this case in no way diminish the police powers to arrest in accordance with law, when the facts and circumstances support the arrest.
[38] If the police believe on reasonable and probable grounds after appropriate investigation that a ticket holder has committed, or is about to commit an indictable offence, then the police can rely upon the powers to arrest stipulated in the Criminal Code, R.S.C. 1985, c. C-46 (see s. 495(1)(a) and R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241). The scope of the appropriate investigation is factually dependent upon the urgency of the situation. The police may also arrest if they encounter a ticket holder actually committing any offence, whether it be an indictable or summary offence (see s. 495(1)(b) and R. v. Biron (1975), 1975 CanLII 13 (SCC), 23 C.C.C. (2d) 513, 59 D.L.R. (3d) 409 (S.C.C.)).
[39] The Act does not apply in the context of ticket holders. Any arrest pursuant to the Act is therefore unlawful. The ticket is a personal revocable licence, and provides the holder a right or authority conferred by law to be present in the premises of the SkyDome. The licence may be revoked by management in accordance with the terms and conditions stipulated on the reverse side of each ticket. If the holder is in breach of any municipal, provincial or federal by-law or regulation he or she may be removed without compensation. In accordance with the common law, the ticket holder has a licence for value that is an enforceable right to attend the event in question until its conclusion, provided the ticket holder behaves properly and complies with the rules of management.”
21. Further supporting the position that the police do not have the power to effect civil evictions, the case of Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII) (“Carr”) reflects such limitations on police powers under the TPA. In Carr at paragraphs 26 – 29 the court states:
“[26] The offence of trespass to property involves entering premises without the permission of the occupier and/or remaining on premises when asked by the occupier to leave. At issue is whether the individual has the right or legal authority to enter and/or remain on the premises: see section 2.
[27] To make an arrest without a warrant pursuant to the TPA, a police officer must have “reasonable and probable grounds” to believe that the individual is on the premises in contravention of the statute: see section 9(1).
[28] Did Adlard and Cybulski have reasonable and probable grounds to believe that Roxanne was on and/or refused to leave the premises without “colour of right” or “authority conferred by law”, in contravention of section 2 of the TPA? For the following reasons, I find they did not:
• As a rent-paying sub-tenant in the home, Roxanne was a licensee and had the right to remain in the home;
• As a licensee, Roxanne was entitled to notice from Morgan of the requirement to leave the home;
• There is no evidence that Morgan gave Roxanne notice to leave the home; and
• There is no evidence that Morgan informed Adlard and Cybulski that he gave Roxanne notice to leave the home.
[29] In summary, in the absence of reasonable notice from Morgan of the requirement to leave the home, Roxanne was, as a rent-paying sub-tenant, entitled to remain on the premises.
Roxanne was, at a Minimum, a Licensee and Entitled to Remain”
22. In the current case, the respondents failed to follow the procedure to terminate a commercial tenancy as outlined in Central Guaranty Trust Co. v. McRae, 1993 CanLII 8542 (ON SC). The failure to follow that procedure makes the termination of the tenancy unlawful. The applicant submits that the respondent Bingemans and the respondent the Waterloo Regional Police Services Board executed a clear abuse of police powers by arresting the applicant under the TPA without warrant and without any hint of probable cause. Although the detention was brief the consequences that followed impleaded the applicant’s reasonable enjoyment of his leased property and offended his Constitutional rights under section 9 of the Charter.
23. The term “detained” in section 9 has the same meaning as in section 10 of the Charter. The Supreme Court has stated that there is “no reason in principle why the general approach to the meaning of detention reflected in those cases R. v. Therens, [1985] 1 S.C.R. 613 and R. v. Thomsen, [1988] 1 S.C.R. 640 should not be applied to the meaning of ‘detained’ in section 9” (Hufsky, supra at paragraph 12).
24. Detention requires some form of physical or psychological restraint by the state. It has been defined as “a suspension of the individual’s liberty interest by a significant physical or psychological restraint” (Grant, supra at paragraph 44). See also the discussion of detention in
25. Section 10 – General. A psychological detention occurs where the subject is legally required to comply with a direction or demand or where, in the absence of such a direction, state conduct would lead a reasonable person to conclude that he or she had no choice but to comply (Grant, supra at paragraphs 30-31, 44). In cases where there is no physical restraint or legal obligation to comply, determining whether a person has been detained may be more challenging. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider factors including the following:
a. the circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation;
b. the nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter; and
c. the particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication (Grant, supra at paragraph 44).
26. The above analysis involves an objective determination, made in light of the circumstances of the encounter as a whole.
The Remedy for Breach
27. In the case of Davidson v. Toronto Blue Jays Baseball Ltd., 1998 CanLII 14938 (ON SC), the courts awarded $35,000 in general damages, $50,000 in aggravated damages, and $125,000 in punitive damages for unlawful arrest. See paragraph 44, Appendix “A”.
28. In the case of Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII), the court stated at paragraph 254:
“In summary, the defendants are liable to Roxanne as follows:
1. Constable Adlard (false arrest, false imprisonment, excessive use of force, and negligent investigation), Special Constable Marcil (excessive use of force), and the Ottawa Police Services Board are jointly and severally liable to Roxanne Carr for the following damages:
a) General damages in the amount of $90,000.00;
b) Damages for loss of earning capacity in the amount of $120,000.00; and
c) Damages for out-of-pocket expenses and the cost of future counselling sessions in the amount of $37,226.84.
2. Constable Cybulski, Special Constables Morris and Marcil, Sergeant Desjourdy, and the Ottawa Police Services Board are jointly and severally liable to Roxanne Carr for damages in the amount of $7,500.00 pursuant to section 24(1) of the Charter of Rights and Freedoms.”
29. Given the above the applicant is seeking general damages in the amount of $50,000 jointly payable by all respondents for the unlawful detainment and arrest of the applicant.
30. The applicant is further seeking an injunction allowing the applicant to re-possess the leased premises forthwit.
31. The applicant seeks an order requiring the respondents to restore all services including power to the leased premises on a forthwit basis.
===Notes===
<ref name="RTA">Residential Tenancies Act, 2006, S.O. 2006, c. 17, <https://www.ontario.ca/laws/statute/06r17>, retrieved September 22, 2020</ref>
<ref name="CTA">Commercial Tenancies Act, R.S.O. 1990, c. L.7, <https://www.ontario.ca/laws/statute/90l07>, retrieved September 23, 2020</ref>
<ref name="TPA">Trespass to Property Act, R.S.O. 1990, c. T.21, <https://www.ontario.ca/laws/statute/90t21>, retrieved September 23, 2020</ref>
<ref name="Sunrise">Sunrise North Senior Living Ltd. v. The Sheriff (Regional Municipality of York), 2020 ONSC 469 (CanLII), <http://canlii.ca/t/j4vgz>, retrieved on 2020-09-23</ref>
<ref name="McRae">Central Guaranty Trust Co. v. McRae, 1993 CanLII 8542 (ON SC), <http://canlii.ca/t/g1cmx>, retrieved on 2020-09-23</ref>
<ref name="Zolis">Ravnaski v. Zolis, 2020 ONSC 923 (CanLII), <http://canlii.ca/t/j5dbs>, retrieved on 2020-09-23</ref>
<ref name="Carr">Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII), <http://canlii.ca/t/h4tf7>, retrieved on 2020-09-07</ref>
<ref name="Divitcos">Divitcos v. CompCorp Life Insurance Co. 1997 CarswellOnt 547 Ontario Court of Justice (General Division), <https://caselaw.ninja/img_auth.php/4/41/Divitcos_v_CompCorp_Life_Insurance_Co.pdf>, retrieved September 23, 2020</ref>
<ref name="Rossiter">Rossiter et al v. Swartz and Swartz, 2013 ONSC 159 (CanLII), <http://canlii.ca/t/fvn6g>, retrieved on 2020-09-23</ref>
<ref name="Young">Young v. Bank of Nova Scotia, 1915 CanLII 531 (ON CA), <http://canlii.ca/t/gw6bt>, retrieved on 2020-09-23</ref>
<ref name="Hosein">Toronto-Dominion Bank v. Hosein, 2016 ONCA 628 (CanLII), <http://canlii.ca/t/gt333>, retrieved on 2020-09-23</ref>
<ref name="FraserBeach">Fraser v. Beach, 2005 CanLII 14309 (ON CA), <http://canlii.ca/t/1k8v3>, retrieved on 2020-09-23</ref>
<ref name="Parker">R. v. Parker v. Yundt et al, 2012 ONSC 244 (CanLII), <http://canlii.ca/t/fpn5v>, retrieved on 2020-09-23</ref>
<ref name="TET-66943-16">TET-66943-16 (Re), 2016 CanLII 38767 (ON LTB), <http://canlii.ca/t/gs8hv>, retrieved on 2020-09-23</ref>
<ref name="Re-RTA">Re Residential Tenancies Act, 1981 CanLII 24 (SCC), [1981] 1 SCR 714, <http://canlii.ca/t/1mjl9>, retrieved on 2020-09-23</ref>
<ref name="Victoria Strong">772067 Ontario Limited v Victoria Strong Manufacturing, 2017 ONSC 2719 (CanLII), <http://canlii.ca/t/h3j4z>, retrieved on 2020-09-23</ref>
<ref name="Didier">Toronto Community Housing v. Bryant Didier, 2018 ONSC 5158 (CanLII), <http://canlii.ca/t/htrqk>, retrieved on 2020-09-23</ref>
<ref name="Sigrist">Sigrist et al. v. Keri McLean et al., 2011 ONSC 7114 (CanLII), <http://canlii.ca/t/fpdp1>, retrieved on 2020-09-23</ref>
<ref name="YMH">YMH v YWCA, 2019 CanLII 121436 (NWT RO), <http://canlii.ca/t/j47sx>, retrieved on 2020-09-23</ref>
<ref name="SOT-66425-16">SOT-66425-16 (Re), 2016 CanLII 57313 (ON LTB), <http://canlii.ca/t/gt6wx>, retrieved on 2020-09-23</ref>
<ref name="MTHA">Ontario (Rental Housing Tribunal) v. Metropolitan Toronto Housing Authority, 2002 CanLII 41961 (ON CA), <http://canlii.ca/t/1cx63>, retrieved on 2020-09-23</ref>
<ref name="Jemiola">Jemiola v. Firchuk, (2005) O.J. No. 6085 (Div. Ct.), <https://caselaw.ninja/img_auth.php/0/01/Jemiola_v_Firchuk.pdf>, retrieved on 2020-09-23</ref>
<ref name="Davidson">Davidson v. Toronto Blue Jays Baseball Ltd., 1998 CanLII 14938 (ON SC), <http://canlii.ca/t/1wcl9>, retrieved on 2020-09-08</ref>
<ref name="Doucette">Regina v. Doucette, 1960 CanLII 138 (ON CA), <http://canlii.ca/t/g18pq>, retrieved on 2020-09-11</ref>
<ref name="Shand">The King v. Shand, 1904 CanLII 109 (ON CA), <http://canlii.ca/t/htzk9>, retrieved on 2020-09-11</ref>
<ref name="Stewart">Stewart v. Toronto (Police Services Board), 2020 ONCA 255 (CanLII), <http://canlii.ca/t/j6fwl>, retrieved on 2020-09-09</ref>
<ref name="Keeper">R. v. M. Keeper, 2014 ONSC 3537 (CanLII), <http://canlii.ca/t/g7d1j>, retrieved on 2020-09-09</ref>
<ref name="Nadon">R. v. Nadon, 2017 ONCJ 581 (CanLII), <http://canlii.ca/t/h5qdk>, retrieved on 2020-09-09</ref>

Latest revision as of 16:42, 3 July 2021


The Law

Commercial Tenancies Act, R.S.O. 1990, c. L.7

1. In this Act,

“landlord” includes a person who is lessor, owner, the person giving or permitting the occupation of the premises in question, and these persons’ heirs and assigns and legal representatives, and in Parts II and III also includes the person entitled to possession of the premises;
“tenant” includes a person who is lessee, occupant, sub-tenant, under-tenant, and the person’s assigns and legal representatives.

2. This Act does not apply to tenancies and tenancy agreements to which the Residential Tenancies Act, 2006 applies. 1997, c. 24, s. 213 (3);

4. All persons being grantees or assignees of the Queen, or of any person other than the Queen, and the heirs, executors, successors and assigns of every of them, shall have and enjoy like advantage against the lessees, their executors, administrators, and assigns, by entry for non-payment of the rent, or for doing of waste, or other forfeiture, and also shall have and enjoy all and every such like and the same advantage, benefit, and remedies, by action only, for the non-performance of other conditions, covenants, or agreements, contained and expressed in the indentures of their said leases, demises or grants against all and every of the said lessees and grantees, their executors, administrators, and assigns as the said lessors or grantors themselves, or their heirs or successors, might have had and enjoyed at any time or times.

19. (1) In this section and in sections 20 to 22,

“action” includes a proceeding under Part III; (“action”)
“under-lease” includes an agreement for an under-lease where the under-lessee has become entitled to have the under-lease granted; (“sous-bail”)
“under-lessee” includes any person deriving title under or from an under-lessee. (“sous-preneur”) R.S.O. 1990, c. L.7, s. 19 (1).
(2) A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease, other than a proviso in respect of the payment of rent, is not enforceable by action, entry, or otherwise, unless the lessor serves on the lessee a notice specifying the particular breach complained of, and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and, in any case, requiring the lessee to make compensation in money for the breach, and the lessee fails within a reasonable time thereafter to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money to the satisfaction of the lessor for the breach. R.S.O. 1990, c. L.7, s. 19 (2).

20. (1) Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture, whether for non-payment of rent or for other cause, the lessee may, in the lessor’s action, if any, or if there is no such action pending, then in an action or application in the Superior Court of Justice brought by the lessee, apply to the court for relief, and the court may grant such relief as, having regard to the proceeding and conduct of the parties under section 19 and to all the other circumstances, the court thinks fit, and on such terms as to payment of rent, costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future as the court considers just. R.S.O. 1990, c. L.7, s. 20 (1); 2006, c. 19, Sched. C, s. 1 (1).

30. (1) The goods and chattels exempt from seizure under execution are not liable to seizure by distress by a landlord for rent, except as hereinafter provided. R.S.O. 1990, c. L.7, s. 30 (1).

35. (1) A tenant may set off against the rent due a debt due to the tenant by the landlord. R.S.O. 1990, c. L.7, s. 35 (1).

74. (1) Where a tenant after the tenant’s lease or right of occupation, whether created by writing or by parol, has expired or been determined, either by the landlord or by the tenant, by a notice to quit or notice pursuant to a proviso in a lease or agreement in that behalf, or has been determined by any other act whereby a tenancy or right of occupancy may be determined or put an end to, wrongfully refuses or neglects to go out of possession of the land demised to the tenant, or which the tenant has been permitted to occupy, the tenant’s landlord may apply upon affidavit to a judge of the Superior Court of Justice to make the inquiry hereinafter provided for and the application shall be made, heard and determined in the county or district in which the land lies. R.S.O. 1990, c. L.7, s. 74 (1); 1993, c. 27, Sched.; 2006, c. 19, Sched. C, s. 1 (1)

76. (1) If, at the time and place appointed, the tenant fails to appear, the judge, if it appears to him or her that the tenant wrongfully holds against the right of the landlord, may order a writ of possession (Form 3) directed to the sheriff of the county or district in which the land lies to be issued commanding him or her forthwith to place the landlord in possession of the land. R.S.O. 1990, c. L.7, s. 76 (1).

Step One (1)

NOTE: This process applies for any breach EXCEPT for non-payment of rent.

  • Serve a Notice of Breach pursuant to section 19. (2) of the CTA.
    • The Notice Must Specify:
      • The particular breach complained of;
      • If the breach is capable of remedy, requiring the lessee to remedy the breach;
      • If requiring the lessee to make compensation in money for the breach;
      • Consequences if the lessee fails within a reasonable time thereafter to remedy the breach, if it is capable of remedy;
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