Non-Application of the RTA (Eviction): Difference between revisions

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[102] The plaintiffs seek damages for unlawful eviction from their business and residential premises, loss of business income resulting from the wrongful eviction and distraint of their business and personal property and assets, as well as punitive damages for the defendants’ malicious and high-handed conduct.
[102] The plaintiffs seek damages for unlawful eviction from their business and residential premises, loss of business income resulting from the wrongful eviction and distraint of their business and personal property and assets, as well as punitive damages for the defendants’ malicious and high-handed conduct.
[115] As a commercial tenancy, the C.T.A. applies and any distraint taken by the landlord is also governed by the C.T.A.
[115] As a commercial tenancy, the C.T.A. applies and any distraint taken by the landlord is also governed by the C.T.A.
Find in document
Sigrist et al. v. Keri McLean et al., 2011 ONSC 7114 (CanLII)
Document
History (3)
Cited documents (39)
Cited by (12)
CanLII Connects (0)
PDF
Date:
2011-12-15
File number:
CV-09-392873
Other citations:
[2011] OJ No 5865 (QL) — 211 ACWS (3d) 239
Citation:
Sigrist et al. v. Keri McLean et al., 2011 ONSC 7114 (CanLII), <http://canlii.ca/t/fpdp1>, retrieved on 2020-05-12
CITATION: Sigrist et al. v. Keri McLean et al., 2011 ONSC 7114
                                                                                                COURT FILE NO.: CV-09-392873
DATE: 20111215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
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Robert Sigrist and Lori-Ann Sigrist
Plaintiffs
– and –
Keri McLean, 1623463 Ontario Inc.  and Chris McGowan
Defendants
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) )
) )
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) ))
Benjamin Bathgate, for the Plaintiffs
Arnold H. Zweig, for the Defendants
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HEARD:
Trial: March 22-29, 2011
Written & Oral Submissions:
May 2, 2011
CAROLE J. BROWN J.
REASONS FOR DECISION
Introduction
[1]              The plaintiffs bring this action for specific performance of commercial/residential property located in Apsley, Ontario.  In 2009, the plaintiffs entered into negotiations with the defendants for a two-year lease of the property with potential for purchase of the property.  Restauranteurs, the plaintiffs moved their restaurant business and family of six from London to Apsley, believing that they had a two-year lease with option to purchase the Apsley property. This is disputed by the defendants, who take the position that the parties never arrived at an agreement regarding the purchase of the property.  Within two months, there was discord between the defendant landlords and the plaintiff tenants and, within four months, the plaintiff tenants had been evicted and their assets distrained. The plaintiffs re-entered the property six months later under Court Order and resumed operation of their restaurant business, which they continue to operate pending final determination of this action.
The Issues
[2]              The issues to be determined are as follows:
            1.        Was there an enforceable contract?
            2.        If so, is specific performance available?
            3.        Were the eviction and distraint legal?
            4.        Are the plaintiffs entitled to damages?
            5.        Are the defendants entitled to damages, as claimed in their counterclaim?
The Facts and Evidence
[3]              The plaintiffs, Robert and Lori-Ann Sigrist, are married and have four sons, Dylan, Nicholas, Oliver and Joseph. Robert is a professional chef, educated, trained and certified in Switzerland.
[4]              Prior to moving to Apsley in 2009, the Sigrists lived for 15 years in Mississauga and 10 years in London. During this time, Robert worked as a business owner-chef of independent restaurants, and also worked in Food Management.  Lori-Ann, a certified Management Accountant, managed the books and records of their restaurants.  Robert was owner-chef of Le Troubadour Restaurant and Catering (Toronto) and subsequently Le Petit Gourmet Restaurant and Catering (Toronto). He thereafter worked in Food Management with Compass Group Canada.  After their first two sons were born, the Sigrists chose to move to a smaller community to raise their family.  They moved to London, where Robert continued to work with Compass Group.  In 2004, he leased the Driftwood Restaurant for a five year term, with two additional options to renew.  They had two more sons.  The London economy began to change, the area was growing and they sought to move their family to a smaller centre where they could live, raise their family and establish a restaurant.
[5]              They sought a community with infrastructure, schools, library, close to a city, with accessible emergency services, as their youngest son experienced seizures.  They sought a property which had a restaurant, with living accommodation, that did not require much work to commence operation of the restaurant, on a trafficked highway, with growth potential. They sought a lease with option to purchase, which would permit them to get to know the area.
[6]              They saw the MLS and Kijiji listings for the Apsley property, the Golden Pheasant Restaurant.  Apsley was of interest, as it benefitted from government investment, had all the amenities necessary for their sons, including school, library, city hall, a new helipad for emergency medical services, which was important, given their youngest son’s health issues. The property was between Peterborough and Bancroft, not too far from Toronto, and benefitted from cottage traffic as well as snowmobile trails, which attracted winter traffic.
[7]              The MLS listing advertised the 7.9 acre commercial property for sale at $399,000, with assessed value of $373,000, with “possible V.T.B. mortgage (“VTB”) O.A.C. or property can be leased for $1500 net net”.
[8]              They contacted the real estate agent, Joanne Dean, viewed the property on March 9, 2009, and were provided with an information package from the vendor, 1623463 Ontario Inc., with OREA Seller Property Information Statement.
[9]              Robert was attracted to the “turnkey operation”, the location, the mixed use (both commercial and residential), the size of the property, with advertised room for expansion, the advertised septic system and water softener, and the option to lease or purchase with a V.T.B.  For the Sigrists, an option was crucial, as they would not move their family and business so far without an option to purchase.
[10]          The property was owned by the defendant 1623463 Ont. Inc., a Company incorporated by the defendant, Keri McLean, to hold the property. She was the sole director and shareholder; the defendant, Chris McGowan, her common law partner, was the sole employee.  The Apsley property was purchased to establish a restaurant business. The defendants wished to get away from Mississauga where Keri owned a computer consultant business and Chris was a transportation consultant/driver trainer.  In 2004, they purchased the Golden Pheasant Restaurant.  Keri testified that she had worked in the restaurant business before, but gave no details. From 2004-2008, financial statements for the restaurant business showed consistent and increasing losses each year, and accordingly they decided to sell or lease the property.
The First Meeting
[11]          On March 13, 2009, Lori-Ann and Chris spoke by telephone according to notes kept by Lori-Ann.  She testified that she generally takes notes of telephone conversations in a notebook, which was entered in evidence.  She testified that she does not take notes of meetings in person. Lori-Ann testified that she and Chris discussed the lease with option to purchase. The lease was $1500 monthly net net, with option to purchase and possible VTB @ 5%.  The monthly rent of $1500.00 was not negotiable. The purchase price was discussed as being “between $350,000 and $400,000, negotiable”.  This is reflected in her notes.  Chris denies that there was any discussion regarding an option to purchase or a range of purchase price, although he admitted that the plaintiffs enquired about purchasing the property and the purchase price.
The Option to Purchase
[12]          The plaintiffs and defendants met at the property on March, 23, 2009.  Keri testified that the meeting lasted 4-6 hours, with some discussions among the four of them and some discussions held in her absence.  The plaintiffs were told that everything “worked like a charm” and the restaurant was a “turnkey operation”.
[13]          The plaintiffs’ evidence is that at that meeting, the parties reached an agreement to lease the property for two years at $1500 per month, with additional expenses agreed to (net net) and with an option to purchase, with the purchase price to be negotiated within a range of $350,000 to $400,000 and a 100% VTB at 5% for 25 years.  This price range is consistent with Lori-Ann’s notes taken during her telephone conversation with Chris McGowan on March 13.
[14]          The plaintiffs testified that it was crucial to them to have an opton to purchase as they would not otherwise have considered uprooting their family and moving their home, business and personal life from London to Apsley absent the option.  Moreover, Robert testified that in the restaurant business leases are usually longer, five years with either option(s) to renew or option to purchase, given the investment of finances and goodwill that goes into establishing a restaurant, and also because if one wishes to sell the restaurant business, one cannot do so without such an option.  Robert testified that without an option to purchase, they would have wanted a longer term lease with option to renew or would have purchased the property outright at that time.
[15]          Both parties agree that an oral agreement for a two-year lease of the property for $1500 net/net monthly was entered into; the defendants dispute the option to purchase agreement. While Keri testified that there was no discussion or agreement regarding the option to purchase, she conceded on cross-examination that her evidence on examination for discovery was that such discussions had occurred.  Her partner, Chris, denied that there were any discussions regarding an option to purchase at the meeting nor any discussion or agreement regarding a range for the option purchase price, although he stated that the plaintiffs indicated that they would probably want to rent rather than purchase but would let him know.  He further testified that prior to May 30, the plaintiffs expressed interest in purchasing the property and he advised them that the price was $400,000 with the plaintiffs to pay real estate fees and the cost of septic tank installation.
[16]          Based on the evidence of the plaintiffs and the concessions on cross-examination of the defendant, Keri McLean, I find that there were discussions about an option to purchase at the March 23 meeting.
[17]          No written draft of the agreement was prepared at that time.  The plaintiff’s evidence was that the defendants appeared trustworthy and the plaintiffs relied on their oral agreements.
[18]          The plaintiffs believed they had agreed to a two-year lease with option to purchase within the two year period at a price range of $350,000 - $400,000, with only the final price to be agreed upon within that range.
[19]          The defendants maintained at trial that the parties had agreed to two separate agreements, a two-year lease to be reduced to writing and an oral agreement to purchase to be reduced to writing in December 2009 in order to avoid payment of real estate holdover fees.  The plaintiffs testified that they would not have considered the short two-year lease without an option to purchase.
[20]          With respect to the defendants insistence that there were two separate agreements, Keri conceded in cross-examination that she does not recall the defendants ever indicating to the plaintiffs that there would be two separate agreements, did not provide anything to the plaintiffs in writing to that effect and does not recall the plaintiffs agreeing to two separate agreements.  Based on the evidence of the plaintiffs as to the importance of an option to purchase, particularly given the short two-year lease, and the concessions of Keri in cross-examination that she does not recall any discussions with the plaintiffs about entering into two separate agreements, I find that there were not two separate agreements, but rather one agreement, namely  a short term lease with option to purchase.
[21]          Lori-Ann testified that she spoke with Chris by telephone on March 24, during which they narrowed the option price range to “no more than $375,000” and “no less than $350,000”.
[22]          On March 25, Lori-Ann spoke with the plaintiffs’ London real estate agent, Harry Lamb, advised him of the agreement regarding the Apsley property and obtained the name of an agent in Peterborough. At that time, they also spoke about listing their London home for sale and spoke with RBC about getting an appraisal on their home.  All of this is reflected in Lori-Ann Sigrist’s notes.  The sale of their London home was completed in August.
[23]          The real estate agent, Joanne Dean, was to prepare the draft agreement.  However, Keri emailed the plaintiffs on March 29 indicating that she had not heard from Ms. Dean and would attempt herself to detail the agreement in writing.  The defendants emailed a draft agreement to the plaintiffs, which omitted the option to purchase.  The plaintiffs prepared a draft in response which included the option to purchase. The parties exchanged several drafts thereafter; those prepared by the defendants continued to omit the option to purchase; those prepared by the plaintiffs included it.
[24]          In reliance on the oral agreement of lease with option to purchase, the plaintiffs completed the move to Apsley, which cost approximately $11,000.00 and began to ready the restaurant for the opening.  The plaintiffs invested in the purchase of new equipment for the restaurant, including a new rotisserie, convection oven, washers, dryers and also invested approximately $12,000.00 in signage, menus, publicity and uniforms for the new restaurant, which they named the Swiss Bear Restaurant and Bakery.  They provided the defendants with a cheque for the first month’s rent.
The Meeting of May 30
The Purchase Price
[25]          On May 30, 2009, the plaintiffs and defendants met and the purchase price was fixed at $380,000 for the option to purchase.  The plaintiffs testified that the agreement included a 100% VTB at 5% for 25 years.  The defendants deny this and testified that the option to purchase agreement was for $380,000 plus payment by the plaintiffs of real estate fees and septic system installation with no VTB, the agreement to be put into writing in December 2009. Keri’s understanding was that they had entered into a written agreement to lease and an oral agreement to purchase. Chris denied any discussion regarding a VTB, but conceded in cross-examination that this testimony was false and that at his examination for discovery, he had indeed admitted that there had been discussions about a VTB at 5% for, he thought, five years.  Regarding the payment of real estate fees, he testified in chief that the plaintiffs had agreed to this, but changed his testimony and conceded in cross-examination that the plaintiffs had never agreed to pay the subject fees.  He further conceded that by December 2009, when he agreed to put the option agreement in writing, there would be no holdover real estate fees, as the holdover period would have expired. Regarding the septic tank installation, which will be discussed in detail below, he testified in chief that the plaintiffs agreed to pay whatever the costs of the new septic system which was being installed; however, in cross-examination, he conceded that the plaintiffs were never given any documentation regarding the septic system installation or costs because he felt it was “none of their business”. Nevertheless, he stated that they had agreed to costs in the estimated range of $40,000 - $50,000.  This is denied by the plaintiffs.
[26]          Regarding the evidence of the defendants, and particularly that of Chris McGowan, I note that there were significant inconsistencies between his testimony in chief and in cross-examination, with concessions, admissions and changing of testimony in cross-examination related to the negotiations and agreements between the plaintiffs and defendants regarding the Apsley property.  In contrast, the evidence of the plaintiffs in chief and in cross-examination was consistent.  Where the evidence of the plaintiffs and defendants differed regarding the subject negotiations and agreement, I prefer the evidence of the plaintiffs.
The Additional Fees
[27]          I do not accept the defendants’ evidence regarding the plaintiff’s agreement to pay additional fees, including septic installation and real estate fees.  I do not find the defendants’ evidence to be credible or reasonable in that regard for the reasons stated below.
[28]          I do not accept the defendants’ position that the plaintiffs agreed to pay costs of the septic system installation, when on their own admission in cross-examination, they admitted that they had not advised the plaintiffs about the septic system Work Order, the severance proposal, which had not been completed, nor the costs of the septic system at the time of the negotiations and agreement.  I do not find the defendants’ evidence to be credible or reasonable that without any information regarding the septic system or the cost of installation, the plaintiffs would agree to pay “whatever it cost”.
[29]          I also do not find the evidence of the defendants convincing regarding the plaintiffs’ alleged agreement to pay real estate fees in light of all of the evidence and the defendants’ concessions on cross-examination in this regard.
[30]          I prefer the evidence of the plaintiffs and find that there was an agreement to lease, with option to purchase as at March 23, 2009, with the purchase price to be within the range of $350,000 to $400,000, to be determined at a later date. I accept the plaintiffs’ evidence that it was in reliance on this agreement that they moved family and business to Apsley.
[31]          Both parties agree that a final purchase price of $380,000 was agreed upon on May 30. While the defendants argue that the final agreement included payment by the plaintiffs of the septic installation and real estate fees and was only to be formalized in writing in December 2009, I have already found that there was no agreement regarding additional payments or two separate agreements, one to be executed at that time and one in December 2009.
[32]          The plaintiffs claimed that the final agreement included a 100% V.T.B. @ 5% for 25 years. The defendants deny that there was an agreement regarding a V.T.B. but do admit that the MLS listing referenced a possible V.T.B. mortgage, and Chris admitted in cross-examination that there was a discussion with the plaintiffs regarding a V.T.B @ 5% but, he thought, for five years and not for 100%.  The plaintiffs testified that this was not important to the Agreement and was not, for them, an essential term.  Accordingly, and based on all of the evidence in this regard, I find there was no oral agreement between the parties regarding a V.T.B.
[33]          The defendants argue that,  while there may have been  an “agreement in principle” with respect to the option to purchase, there was no actual agreement regarding the essential terms of the agreement regarding the purchase price, payment of additional amounts for septic system and real estate fees and the V.T.B.  The defendants submit that this Court cannot impose the terms of a contract where none existed, or where such terms are vague.  I do not find that to be the case here, as I have already found at paras. 18, 27 to 32, above. The parties had agreed to the option to purchase within the two-year lease term with the purchase price to be within a defined range, to be determined at a later date. Both parties acknowledge that the final price was subsequently agreed upon at $380,000.
[34]          In arriving at this decision, I have taken into consideration the cases of Erie Sand and Gravel Ltd. v. Seres’ Farms Ltd. 2009 Carswell Ont 6035, 2009 ONCA 709 (Ont C.A.) and Taub v. Elmira Purveyors Co, 1995 Carswell Ont 3589 (OCJ), relied upon by the defendants.  In Taub, Molloy J. sets forth an overview of the law in this regard as follows at paras.16 and 17:
[16]      While the general rule is that the parties must have reached agreement themselves on the essential terms of their contract and that the court will not write the contract for them, a lack of agreement on all terms of the contract will not necessarily be fatal: Calvan Consolidated Oil & Gas Ltd. v. Manning (1959), 1959 CanLII 56 (SCC), 17 D.L.R. (2d) 1 (S.C.C.). As stated by Chitty, “the agreement may be completed although it is not worked out in meticulous detail”: A.G. Guest, ed., Chitty on Contracts, 27th ed. (London: Sweet & Maxwell, 1994) at p. 135, First Energy (UK) Ltd., v. Hungarian International Bank Ltd., [1993] 2 Lloyd’s rep. 195.  This is particularly the case when the uncertain or missing terms are not central to the contract: Canada Square Corp. v. Versafood Services (1981), 1981 CanLII 1893 (ON CA), 130 D.L.R. (3d) 205 (Ont. C.A.); Re Pattenick & Adams Furniture Co. Ltd. (4th) 730; or can be ascertained relatively easily by reference to a reasonableness standard or the practice in the industry; Re Nishi Industries Ltd. (1978), 1978 CanLII 1974 (BC CA), 91 D.L.R. (3d) 321 (B.C.C.A.); Kay Corp. v. Dekeyser (1977), 1977 CanLII 1809 (ON CA), 76 D.L.R. (3d) 588 (Ont. C.A.).  The courts have been especially willing to find that a contract exists when it is clear that the parties intended their arrangement to have legally binding effect and have actually taken concrete steps in furtherance of the contract: Byrne v. Napier (1975), 1975 CanLII 329 (ON SC), 62 D.L.R. (3d) 589 (Ont. H.C.J.); Kay Corp v. Dekayser, supra; Sudbrook Trading Estate Ltd. v. Eggleton, [1983] 1 A.C. 444 (H.L.).
[17]      Whether or not the agreement between the parties is sufficiently clear to be enforceable by the courts is a matter to be determined on the particular facts of each case. For example, there have been cases in which courts have found that the failure to agree on a contract price means that there has not been a binding contract created and other cases in which the courts have imposed a reasonable price even though no price had been agreed to by the parties: Godson v. P. Burns & Co. (1919), 1919 CanLII 539 (SCC), 46 D.L.R. 97 (S.C.C/); Re Pigeon and Titley, Pigeon, Lavoie Ltd. (1972), 1972 CanLII 455 (ON SC), 30 D.L.R. (3d) 132 (Ont. HC.); Re Nishi Industries, supra. In both sets of cases the same general principles of contract law have been applied but with quite different results. As Professor Waddams observed, in determining whether there is an enforceable contract there is no “rule of thumb”: S.M. Waddams, ed., The Law of Contracts, 3rd ed. (Toronto: Canada Law Book, 1993) at p. 26. He further states:
The determination of contract formation is not a mechanical process of applying rules but a complex and flexible procedure depending on many factors.
[35]          While the defendants argue that the contract terms were not clearly agreed upon, I have found that the essential terms of the option to purchase were agreed upon.  I do not need to impose a reasonable price, as the agreed upon range of $350,000 to $375,000 was ultimately finalized by May 30 at $380,000.
Ongoing Problems with the Property
[36]          While the parties’ relationship at the beginning appeared to be good, it quickly deteriorated following the plaintiffs’ move to the property.
[37]          Problems began to arise regarding the plumbing, kitchen equipment failures and sewage system according to the plaintiffs’ testimony, and it became apparent that the operation was not “turnkey” and did not “work like a charm”.  The equipment found to be non-operative included a refrigerator, fryer, part of a soft serve ice cream maker, as well as other items.  Where the plaintiffs had brought their own equipment from London, they simply replaced the non-operative items with their own equipment.  The plaintiffs testified that they were told by Chris to place non-operative items in the back yard for the defendant to collect for recycling or scrap collection. The defendants deny this.  The plaintiffs further testified that they arrived at an agreement with the defendants whereby they would have emergency repairs done and deduct the cost of those emergency repairs from their monthly rent. Examples of such repairs included a hot water tank that exploded, sewerage backup and plumbing problems.  The defendants denied any agreement to deduct emergency repairs needed to keep the restaurant running, although they did cash the June rent cheque from which the plaintiffs had deducted and accounted for emergency repairs.
[38]          The defendants began construction of a new sewerage system shortly after the plaintiffs moved in.
[39]          On May 31, prior to the opening of the Swiss Bear Restaurant on June 6, the defendants delivered a letter, with a written lease which again omitted the option to purchase, threatening that if the plaintiffs did not sign the lease, the defendants would halt construction of the septic system.
[40]          The plaintiffs began to investigate and discovered that in 2004, the defendants had applied for approval for construction of a larger septic system, as well as for severance of one acre of the neighbour’s land, as the tile bed for one of the two septic systems for the property was located on the neighbour’s land.  The Sigrists further discovered that the land was subject to a violation and Provincial Officer’s Work Order dated September 24, 2004 regarding the septic system which remained outstanding.  None of this had been disclosed to them. Indeed, in cross-examination at trial, both defendants admitted that the Work Order, which was required to be posted on the property, had been taken down prior to the plaintiffs’ first visit to the property, and was never disclosed to them.
[41]          Moreover, the evidence indicates that the defendants failed to produce the Design Brief for the septic system and the Application for Approval of Municipal Private Sewage Works in the context of this litigation, despite undertakings arising from their examinations for discovery obligating them to produce the documents.  They were produced by the Sigrists themselves shortly before trial as a result of their ongoing inquiries with the Ministry of the Environment.  These documents demonstrate: that there were problems with the existing septic system; that the new septic system would have a much larger volume capacity, being almost twice the size of the existing system, and that the proposed septic system could not be constructed until the severance of the neighbours’ one acre of land was completed.
[42]          While the Design Brief prepared by the engineers retained by the defendants described the septic system as “too small for the restaurant and apartment” and was reportedly prone to repeated backups and the Certificate of Approval from the Ministry of Environment dated January 27, 2005 stated that the existing sewerage systems were of “substandard performance”, Chris McGowan, on cross-examination, disagreed with that assessment and stated that the existing septic system was sufficient for the plaintiffs’ purposes.  He further admitted that the new system was being constructed to accommodate the defendants’ expansion plans for a motel, laundromat and carwash on the property. He subsequently changed this testimony and admitted that the septic construction was to correct the plaintiffs’ plumbing problems and also for the defendants’ expansion plans. Keri Mc Lean admitted in cross-examination that as at May 30, there was no disclosure to the plaintiffs regarding the septic system Work Order, severance proposal, application for severance, nor were any invoices regarding the installation provided.  Nevertheless, she maintained her position that the plaintiffs agreed to pay for the costs of the septic installation, without any of the information being given to the plaintiffs.  The defendants’ evidence in this regard is not credible.
[43]          It appears clear from the evidence that there were significant misrepresentations regarding the property, the severance issue and the listed acreage, the “turnkey nature” of the restaurant premises and equipment, the issues regarding the septic system, including the fact that it was subject to a Work Order and was not completely contained on the defendants’ property.
[44]          On June 5, the day prior to the opening of the Swiss Bear Restaurant, the defendants attended at the property to obtain a signed copy of the draft lease they had sent to the plaintiffs on May 31, which did not contain an option to purchase.  As that time, the plaintiffs advised the defendants of what they had learned from their investigations regarding the lack of disclosure and the misrepresentations concerning the property, including the uncompleted severance of the neighbours’ land, the actual size of the property which was 6.62 acres and not 7.9 acres as indicated in the MLS listing, that part of the existing septic system was not on the property and that a larger septic system had been applied for and approved in 2005, but remained uncompleted.  As a result, the defendants became upset, advised the plaintiffs that all further communication would be through their lawyer, and left.  This was confirmed by the defendants in writing.  Thereafter, the plaintiffs attempted to communicate with the real estate agent, Joanne Dean.
[45]          In July and August, the plaintiffs continued to encounter problems, which required repairs.  Their accounting of repair costs done by them in July, which was entered in evidence, indicates that the repairs required amounted to more than the monthly rent and additional expenses owing such that the defendants owed them $1,050.00. The defendants deny any agreement whereby the plaintiffs could deduct the costs of any repairs from their monthly rent.  Despite the plaintiffs’ requests for copies of all bills for the “net net” costs they had paid and were required to pay in August, no invoices were provided by the defendants.
[46]          On July 28, 2009, the plaintiffs found a Notice of Arrears of Rent affixed to the restaurant, issued pursuant to the Commercial Tenancies Act (“C.T.A.”), requiring the plaintiffs to vacate the premises immediately and indicating that they had failed to sign a lease and were in arrears of rent of “more than $3000.00”.  At no time was an accounting or breakdown provided by the defendants, nor was there any communication or warning from the defendants prior to posting the Notice of Arrears of Rent. This was confirmed by Chris McGowan in cross-examination.
[47]          In response, on July 28, the plaintiffs provided their accounting of the monthly rent owing and the deduction therefrom of the costs of the repairs undertaken by the Sigrists. The plaintiffs further confirmed that a lease with option to purchase had been agreed to, in reliance on which they had moved their family and business to Apsley.  Chris McGowan denies receiving this correspondence.  The plaintiffs further retained a lawyer who corresponded with the defendants’ lawyer.
[48]          The plaintiffs heard nothing further until September 8, 2009 when they found a Demolition Permit affixed to the restaurant.
[49]          In cross-examination, Chris McGowan testified that he had had the Demolition Permit issued with the intention of intimidating the plaintiffs to “bring them to the table” to sign the lease without the option to purchase or to get rid of them.
[50]          The evidence indicates that the property was listed again for sale on 7/9/09 (it was not clear from the evidence whether this was July 7 or September 9, 2009) on MLS.  Chris McGowan testified that he knew nothing of that listing, but did relist the property for sale for $449,000 as of October 14, 2009, after the plaintiffs’ eviction and distraint.
[51]          On Tuesday, September 22, 2009, the plaintiffs arrived at the restaurant in the evening, after a day away, and found the locks changed and a Notice of Termination of Tenancy posted “for non-payment of rent”, indicating that the plaintiffs owed $8,393.44 plus legal costs.  No breakdown of the amounts allegedly outstanding was given to the plaintiffs at any time prior to posting of the Notice of Termination or, indeed, at any time prior to commencement of the action, nor were any invoices for any of the amounts provided.  No previous warning of the lockout and eviction was given to the plaintiffs.  At trial, a breakdown of the amount of $8,393.44 was produced, which indicates that the amount was inclusive of legal fees, and in cross-examination, the defendant, Chris McGowan, conceded that the amount posted as owing was incorrect.
[52]          There is dispute as to the lockout and the property distrained by the defendants.  It was the plaintiffs’ evidence that they were permitted to remove personal effects over a period of 30 minutes, following the lockout, but no business assets.
[53]          Chris McGowan denied that the plaintiffs were only given 30 minutes to remove their belongings and testified that they could take anything they wanted.  However, in his correspondence to the plaintiffs’ lawyer of October 30, 2009, Chris McGowan wrote that if the plaintiffs wished to pay the back rent and costs, the commercial chattels would be released to them, which contradicts his testimony that they were free to take anything they wanted.  Moreover, he testified that he distrained the plaintiffs’ commercial assets because he had been contacted by RBC, which indicated that the plaintiffs commercial chattels were subject to a security agreement and must be distrained.  However, in cross-examination, he admitted that, at that time, he knew that RBC had no security interest in the commercial assets he was holding.
[54]          Email correspondence from RBC entered in evidence, indicates that “the Royal Bank did not authorize the landlord to seize [the plaintiffs] commercial assets”.  I do not accept the defendant’s evidence regarding the distraint of the plaintiffs’ assets and his indication that they could remove anything they wanted, given the documentary evidence which contradicts his testimony.
[55]          The plaintiffs remained out of the property and were unable to operate the Swiss Bear Restaurant and Bakery or earn a living.  The Sigrist family resided in the basement of Mr. Sigrist’s brother in Scarborough.
[56]          In November 2009, the plaintiffs retained new counsel, who brought a motion for relief from forfeiture which was granted by Newbould J. on March 8, 2010.  They re-entered the property under Court Order and re-opened the Swiss Bear Restaurant on April 2, 2010, having been out of the property for over six months.
[57]          The plaintiffs testified that upon re-entry of the premises, they found many items missing.  These included personal belongings stored in the restaurant kitchen, including personal records, birth certificates, adoption records for one of their sons, along with business records and assets.  They produced evidence and an accounting of the items and assets missing which they calculated to have a replacement value of $ 61,731.00. The defendants deny that any assets were disposed of or are otherwise missing except items which were perishable, old or dirty, which they disposed of. The damages claimed will be addressed below.
Specific Performance and the Statute of Frauds
[58]          Specific performance is an equitable remedy for breach of contract.  This discretionary remedy is available where damages would not suffice to adequately protect a plaintiff’s interest in a contract.
[59]          Specific performance will be awarded where the evidence establishes that the property is unique and that a monetary award of damages is not an adequate substitute for the plaintiff’s loss. The plaintiff must show that the property has distinctive features that make an award of damages inadequate: John E. Dodge Holdings Ltd v. 805062 Investments Ltd., 2001 CanLII 28012 (ON SC), [2001] O.J. No. 4397 (S.C.).
[60]          At trial, the defendants submitted that, given the time that had lapsed, and the fact that the two year lease term ended April 30, 2011, the issue of whether there was an enforceable lease agreement was moot, and the only issue was whether there was an enforceable agreement regarding the option to purchase. They confirm that if an enforceable, binding option to purchase is found to exist, they will honour the performance of the option if it is exercised. While the two year lease agreement has now expired, it will be discussed within the context of the overall negotiations and agreement.
[61]          It is the position of the defendants that there was no written agreement regarding the option to purchase as required by the Statute of Frauds and, therefore, there can be no enforceable contract of specific performance thereof.  The plaintiffs take the position that the defendants are barred from relying on the Statute of Frauds, as they did not plead it in their Statement of Defence.
[62]          I have already found, based on all the evidence, that a contractual agreement existed, the terms of which are as follows:
            1.        a two-year lease of the property at $1500 per month net net commencing May 1,                                  2009.  The additional (“net net”) expenses included:
•        property taxes
•        propane
•        hydro
•        dish machine lease
            2.        an option to purchase the property within the two years at $380,000.
[63]          The only issue is whether the contract is enforceable at law.
            (a)        Was there an enforceable contract?
[64]          Pursuant to s. 4 of the Statute of Frauds, an agreement for the sale of land must be in writing to be enforceable. Section  4 states:
No action shall be brought to charge any executor or administrator upon any special promise to answer damages out of the executor’s or administrator’s own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of any other person, or to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them,  unless the agreement upon which the action is brought, or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some person thereunto lawfully authorized by the party.
[65]          The purpose of this requirement is to prevent fraudulent or unconscionable dealing.  Therefore, the Statute of Frauds should not itself be permitted to be used as a tool of perpetuating fraud. This concern was elucidated in Erie Sand and Gravel Ltd. v. Seres’ Farms Ltd. (2009), supra., at para. 49 by Gilles J.A. writing for the Ontario Court of Appeal:
The purpose of s. 4 of the Statute of Frauds is to prevent fraudulent dealings in land based on perjured evidence.  However, Equity will not allow the Statute of Frauds to be used as an “engine of fraud”.  It created the doctrine of part performance to prevent the Statute of Frauds from being used as a variant of the unconscionable dealing which it was designed to remedy: see Hill v. Nova Scotia (Attorney General), 1997 CanLII 401 (SCC), [1997] 1 S.C.R. 69, at para. 10.
[66]          In the instant case, there is no allegation that the plaintiff acted fraudulently or that the defendant was vulnerable in any way.  This should and will be taken into consideration in guiding the application of the Statute of Frauds, which will not automatically be applied to defeat the plaintiff’s claim on a technicality, and will be addressed when I discuss part performance.
            (b)        Defendant’s failure to plead the Statute of Frauds
[67]          The plaintiffs take the position that the defendant must specifically plead the Statute of Frauds in order to rely upon it as a defence to a claim for specific performance: Kent v. Ellis (1990), 31 S.C.R. 110; Mariani v. 778963 Ontario Ltd., [2005] O.J. No. 4581 at para. 32 and Medjed v. 1007323 Ontario Inc., [2004] O.J. No. 4728 at para. 63.
[68]          The Supreme Court of Canada in Kent v. Ellis explained the purpose behind the requirement of pleading the Statute of Frauds. Citing British jurisprudence, Clarke v. Callow (46 L.J.Q.N. 53) and Hawkins v. Lord Penrhyn (4 App. Cas. 58), the Supreme Court of Canada explained that a party must plead the Statute of Frauds because “otherwise it could not be know whether or not he intended to shelter himself under the statute, or to waive his right to shelter himself under it.”
[69]          However, the failure to plead the defence under the Statute of Frauds does not automatically result in defeat of the defence.  Those cases in which the failure to plead the Statute of Frauds has been found to be fatal to the defence are cases where the defence is weak in the first place: See Kent v. Ellis, supra; Medjed v. 1007323 Ontario Inc., [2004] O.J. No. 4728.
[70]          For example, in McKenzie et al. v. Peel County Board of Education (1975), 1974 CanLII 644 (ON CA), 5 O.R. (2d) 549, the Ontario Court of Appeal’s decision not to permit the defendant to use the Statute of Frauds as a defence was guided not only by the failure to plead the defence but also by the evidence of a written contract.
[71]          Similarly, in Severin v. Vroom (1977), 156 O.R. (2d) 636, [1977] O.J. No. 220 (C.A.) at para. 7, after finding that the Statute of Frauds was not pleaded and therefore could not be used as a defence, Estey C.J.O. noted that the defence would not be available to the defendant even if it had been pleaded as the documentary and testimonial evidence supported the contention that there had been part performance of the agreement.
[72]          I note that the defendants did plead at para. 43 of their Statement of Defence, as follows:
The defendants deny that the Plaintiffs are entitled to specific performance as claimed in paragraph 1(a) of the Statement of Claim as there is no agreement in writing that sets out the terms by which there was to be an option to purchase.
[73]          While the defendants rely on the provisions of s.4 of the Statute of Frauds, making reference to the absence of an agreement in writing, they do not specifically reference the Statute or s.4.
[74]          The principle behind the requirement to plead a specific defence is to put the plaintiff on notice of the defence to be relied upon and the case to be met. The wording of the defendants pleading in this regard would put the reasonable litigant on notice of the defence, although the Statute is not specifically pleaded.
[75]          I note that there was significant evidence both viva voce and documentary related to the negotiations regarding the lease agreement with option to purchase, despite the failure to specifically plead the Statute of Frauds.  Based on this, and the evidence regarding the verbal negotiations, I find that the plaintiffs were put on notice of the issue.
[76]          The defendants’ counsel acknowledges the failure to plead the Statute of Frauds in the Statement of Defence and, in written submissions, after the trial, requested an amendment to the pleadings to specifically plead the defence as follows:
            “The defendants plead and rely upon the Statute of Frauds”.
[77]          Rule 26 of the Rules of Civil Procedure provides:
On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[78]          Rule 26 provides broad authority to amend a pleading at any stage of a proceeding, including at or after trial unless such amendment would cause injustice or irremediable prejudice to the other side that cannot be compensated for by costs.
[79]          While an amendment such as that sought by the defendants may be available pursuant to R. 26 even after trial, and the defence appears to have been contemplated by the parties based on the evidence adduced at trial such that it would not take the plaintiffs by surprise or cause an injustice, I find that such an amendment would have no ultimate effect on the outcome.  Taking into consideration the principles set forth in McKenzie v. Peel County Board of Education, Severin v. Vroom and Medjed v. 1007323 Ont. Inc., discussed at paras, 69-71 above, I find that there is, based on all of the evidence adduced, sufficient evidence of part performance of an agreement to take it out of the Statutes of Frauds requirements in any event.  This will be elucidated below.
Part Performance
[80]          The doctrine of part performance is an exception to the Statute of Frauds.  It is equitable in nature and designed to operate in appropriate circumstances, to prevent a party from avoiding liability under an agreement that is lacking written proof.
[81]          Under the doctrine of part performance, specific performance is available for a contract for the sale of land or a lease despite the absence of written material or documentation that would satisfy the Statute of Frauds.  To engage the doctrine of part performance, the party seeking specific performance must establish evidence of acts unequivocally referable to some such agreement as that alleged.  The acts of part performance must be those of the plaintiff, although it is well settled law in Canada that the acts of both parties to an alleged oral agreement may be considered in determining if sufficient acts of part performance take the alleged agreement outside the operation of the Statute of Frauds: Hill v. Nova Scotia (A.G.), 1997 CanLII 401 (SCC), [1997] 1 S.C.R. 69 (S.C.C.); Erie Sands & Gravel Ltd. v. Seres Farms Ltd., supra.
To establish part performance, four requirements must be met, as set forth in Kang Corp. v. KRTT Group Ltd., [2007] O.J. No. 1500, as follows:
            1.        the performance must be referable to the contract;
            2.        the acts of performance must be acts of the plaintiff;
            3.        the contract must be one  for which the law would grant specific performance if it                                  had been properly evidenced in writing; and
            4.        there must be clear and proper evidence of the existence of the contract.
[82]          In this case, the issue is whether there is sufficient evidence to establish the four required elements of part performance of a lease with option to purchase.
1.        Performance referable to the contract
[83]          Two approaches have developed in Canadian jurisprudence with respect to this requirement.
[84]          The first is the stricter approach taken by the Supreme Court of Canada in Deglman v. Brunet Estate, 1954 CanLII 2 (SCC), [1954] S.C.R. 725.  The Court held in that case that conduct must “unequivocably” refer to the particular land in issue.  Purchase money alone is not a sufficient act of part performance to merit an exception from the application of the Statute of Frauds.
[85]          Since Deglman, first British courts, and then, Canadian courts, have taken a more liberal approach.  In Steadman v. Steadman, [1976] A.C. 536, 2 All E.R. 977, the English House of Lords held that, in some situations, the payment of monies may qualify as part performance. Lord Reid explained at p. 980:
But it is not difficult to see one principle behind them.  If one party to an agreement stands by and lets the other party incur expenses or prejudice his position on the faith of the agreement being valid he will not then be allowed to turn round and assert that the agreement in unenforceable. Using fraud in its older and less precise sense, that would be fraudulent on his part and it has become proverbial that courts of equity will not permit the state to be made an instrument of fraud.
[86]          Steadman has been followed by the Ontario Court of Appeal in Severin v. Vroom and the Ontario Superior Court, even more recently in Hunter et al v. Baluke (1998), 1998 CanLII 14719 (ON SC), 42 O.R. (3d) 553.
[87]          However, it appears that there is a debate in the jurisprudence as to whether Ontario courts should follow the stricter standard in Deglman or the more flexible standard in Steadman.  See: Stack v. Zizman, [2007] O.J. No. 1562 (S.C.J.).
[88]          In Kang Corp., Baltman J. explained at para. 15 that Ontario courts have generally followed the Deglman standard:
As noted by Paul Perell (now Perell, J.) and Bruce Engell in their text Remedies and the Sale of Land, 2nd ed. (Toronto: Butterworths, 1998) p. 17, “the courts in Ontario seem to have followed the stricter Supreme Court approach, while the courts elsewhere in Canada note that the Supreme Court has not revisited this issue since the Steadman decision was released and therefore have chosen to follow the more liberal approach.”  In Alvi v. Lal (1990), 13 R.P.R. (2d) 302 (Ont. H.C.), Then J. stated “whatever may be the current judicial trend, it seems clear that until the Supreme Court of Canada accepts Steadman, the payment of money cannot constitute part performance of a contract with respect to a contract involving Land” (para. 36).  See also the reasons of Spiegel J. in Neighbourhoods of Cornell Inc. v. 1440106 Ontario Inc., [2003] O.J.No.2919 (S.C.J.), paras, 66-79, who appears to lean toward the stricter approach.
[89]          I follow the approach taken in Deglman, as interpreted by the Ontario Courts. I find that there are numerous acts of part performance which are unequivocally referable to the existence of an agreement to lease with an option to purchase the Apsley property, including
            1.        the preparation and delivery by the plaintiffs of written draft agreements                                                reflecting the purchase options;
            2.        the closing of their restaurant business in London;
            3.        the listing of their London  home for sale, which indicates a permanent intention                        to move;
            4.        the moving of their family of six, personal property, business; business records                          and assets from London to Apsley; and
            5.        the investment in a new business, generation of goodwill and improvements to the                      property.
[90]          The defendants argue that these acts must be unequivocably referable to a contract for the purchase of land and that the acts in question are equally referable to a lease of the property.
[91]          The defendants further argue that an agreement to lease and an option to purchase are separate agreements at law.  The defendants argue that while there may have been demonstrated part performance on the lease agreement, there were no acts that could be considered referable to the option to purchase agreement and, therefore, no part performance thereon.  They argue that this proposition was confirmed by Newbould J’s decision regarding relief from forfeiture which, they contend, determined that the two are independent contracts. It is clear from reading that decision that Newbould J. did not address this issue. The motion before him related only to relief from forfeiture and not whether the lease and option were part of the same oral agreement.  I do not accept the defendants argument.  I have found that the lease and option were part of the same agreement and that the acts of part performance are referable to the purchase of the land.
[92]          When considering these acts of part performance in the context of the entire case and the evidence adduced, I find that the acts were undertaken in anticipation of the fulfillment of the option to purchase.
[93]          In this regard, I have considered the case of Erie Sand & Gravel, relied on by the defendant, in which the proper approach to the determination of whether acts of part performance are referable to the contract in issue is described as follows:
[94]      …Begin by determining the context (or the “relevant circumstances” to use Haskett terminology). Then consider the acts of part performance having regard to the way in which reasonable people carry on their affairs.
[94]          There is a resonance to this common sense approach.
[95]          The parties agree that there was no written agreement for the lease with option to purchase. The plaintiffs submit that their drafts of the agreement prepared and provided to the defendants set forth the terms orally agreed upon, including the option to purchase. The defendants submit that the terms agreed upon are reflected in their drafts provided to the plaintiff.
[96]          I have determined that the agreement between the plaintiffs and defendants was for a two year lease with option to purchase.  The plaintiffs efforts to put the oral agreement in writing in the drafts provided to the defendants were done in furtherance of formalizing the agreement and constitute acts of part performance on the agreement.
[97]          While the defendants took the position that there was no option to purchase discussed or agreed upon, or that an option to purchase was to be part of an agreement separate and distinct from the lease, to be formalized at a later date, it was the plaintiffs’ evidence that the parties entered into an oral agreement to lease the Apsley property, with option to purchase on March 23, 2009, and it was on the basis of that agreement that they uprooted their family and moved their business to Apsley.  The plaintiffs’ evidence, consistent throughout, was that they would not have sold their London home, moved their entire family and their business, and invested in a new business without having an option to purchase the property, or renewable longer term lease. A two year business lease in the circumstances would be nonsensical. I have accepted the plaintiffs evidence in this regard.
[98]          While the defendants insist that there was no agreement for the sale of land when the plaintiffs moved to Apsley, and that the plaintiffs cannot rely on the alleged representations in that regard, I prefer the plaintiffs’ evidence that an agreement regarding the option had been reached, including the specific range for the purchase price, with the exact price to be determined within that range.  I accept that, on the basis of this agreement with option, the plaintiffs moved their family of six from London to Apsley, listed their London home for sale, closed their London business, and established the new restaurant business, with all the attendant start-up costs.  Without the option to purchase, such a significant move and investment for only a two-year lease would have defied logic and made no sense.  I find the plaintiffs acts in relocating their family and business to be acts of part performance, unequivocably referable to the lease with option to purchase.
2.        Acts of performance are those of the plaintiffs
[99]          All acts reference above were those of the plaintiffs.
3.        The contract is one for which specific performance would be granted
[100]      It is clear that in the circumstances of this case the requirement is met.  The evidence indicates that the plaintiffs were seeking a property in a community with specific features and amenities to suit the needs of their family and their restaurant business.  The property located by them suited and was unique to their needs.  An award of damages in all of the circumstances, rather than specific performance would be woefully inadequate.
There must be clear and proper evidence of the existence of the contract
[101]      I have found that the parties entered into an agreement to lease with option to purchase.  I find, based on all of the evidence, documentary and viva voce, that this requirement is met.
Were the Eviction and Distraint Legal?
<b><u>[102] The plaintiffs seek damages for unlawful eviction from their</b></u> business and <b><u>residential premises</b></u>, loss of business income resulting from the wrongful eviction and distraint of their business and personal property and assets, as well as punitive damages for the defendants’ malicious and high-handed conduct.
'''The Eviction
[103] The plaintiffs received their first Notice of Eviction for failure to sign a lease and unspecified arrears of rent of “more that $3000” on July 28, 2009, followed by a Demolition Permit on September 8, 2009, which Chris McGowan testified was used as an “intimidation tactic” to force the plaintiffs to either sign their lease, without option to purchase, or to leave the premises. In neither case, and at no time after June 5, had the defendants attempted to speak with the plaintiffs.  Nor had they given the plaintiffs any warning. I find these tactics to be unbusiness-like, unprofessional, high-handed and reprehensible.
[104] On September 22, the defendants issued a final Eviction Notice, again without any prior communication or attempt to discuss issues or concerns.  They changed the locks to the business and residential property and, further, distrained the plaintiffs’ business and personal assets.


[116] The right of distraint (also known as distress) is a common law right available to landlords for recovery of arrears of rent under a lease. It allows landlords to seize goods and chattels on the leased land in question and owned by the tenant. The remedies of forfeiture and distress are mutually exclusive at law and, therefore, the landlord must choose between the right of forfeiture or the right of distraint.  Where the landlord elects forfeiture, a simultaneous distress is illegal and will result in the landlord being liable to the tenant for the full extent of the tenant’s damages: See: Falwyn Investors Group Ltd. v. G.P.M. Real Property (6) Ltd., [1998] O.J. No. 5258 (Gen. Div.).
[116] The right of distraint (also known as distress) is a common law right available to landlords for recovery of arrears of rent under a lease. It allows landlords to seize goods and chattels on the leased land in question and owned by the tenant. The remedies of forfeiture and distress are mutually exclusive at law and, therefore, the landlord must choose between the right of forfeiture or the right of distraint.  Where the landlord elects forfeiture, a simultaneous distress is illegal and will result in the landlord being liable to the tenant for the full extent of the tenant’s damages: See: Falwyn Investors Group Ltd. v. G.P.M. Real Property (6) Ltd., [1998] O.J. No. 5258 (Gen. Div.).

Revision as of 14:12, 12 May 2020

See Also

Residential Tenancies Act, 2006, S.O. 2006, c. 17

Exemptions from Act
5 This Act does not apply with respect to,

(a) living accommodation intended to be provided to the travelling or vacationing public or occupied for a seasonal or temporary period in a hotel, motel or motor hotel, resort, lodge, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast vacation establishment or vacation home;
(i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;
(n) any other prescribed class of accommodation.

Trespass to Property Act, R.S.O. 1990, c. T.21

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.

9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2. R.S.O. 1990, c. T.21, s. 9 (1).

(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer. R.S.O. 1990, c. T.21, s. 9 (2).
(3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail. R.S.O. 1990, c. T.21, s. 9 (3).

YMH v YWCA, 2019 CanLII 121436 (NWT RO)

12. I understand that Northview took action by giving the Landlord an eviction notice on September 10, 2019, ending the contract for the rental premises effective immediately and requiring the Landlord to have the premises vacated. The Landlord told the Tenant to vacate the premises, and then on September 12, 2019, Northview changed the locks to the premises, prohibiting the Tenant’s return. Sometime over the next few days the Tenant was granted access to the premises during daytime hours only, and then started staying there again on September 18, 2019. The Tenant’s children returned to the premises September 20, 2019. On October 2, 2019, the RCMP forcibly entered the premises and removed the Tenant and his children, returning possession to Northview. Under what authority the RCMP conducted this eviction was not established at hearing – no evidence was presented of either an eviction order or a writ of possession issued by the Supreme Court. Neither was an application to a rental officer made by the Landlord seeking termination of the tenancy agreement and eviction.


19. The Landlord did not take advantage of any of the above options provided for under the Act. Consequently, I am satisfied the tenancy agreement was not terminated in accordance with the Act and the Tenant was improperly evicted from the rental premises.

20. Subsection 25(1) of the Act prohibits the alteration of any locking system giving entry to the rental premises except by mutual consent. Subsection 34(1) of the Act prohibits the Landlord from disturbing a Tenant’s possession of the rental premises.

Sunrise North Senior Living Ltd. v. The Sheriff (Regional Municipality of York), 2020 ONSC 469 (CanLII)

[63] Section 141(1) of the Courts of Justice Ac, R.S.O., c. C.43, states that "orders of a court arising out of a civil proceeding and enforceable in Ontario shall be directed to a sheriff for enforcement".

[64] As held by Bale J. in his decision of January 8, 2019, in combination these two provisions make clear that the sheriff "is required to enforce the eviction order, in the same manner as a writ of possession…"

[70] The Sheriff does not have the discretion to decide not to enforce the eviction orders.

[71] In Central Guaranty Trust Co. v. McRae (1993), 1993 CanLII 8542 (ON SC), 13 O.R. (3d) 295 (Sup. Ct.), at para. 12, the Superior Court held that the Sheriff has a duty to enforce validly made writs of possession and no discretion not to do so:

A writ of possession is an order of the court. It is granted only after a Judge or master has made a judicial determination which includes consideration of the rights of the occupants. A Sheriff is an officer of the court, sworn to uphold the law. Refusal by a law enforcement officer to enforce an order of the court can only serve to undermine respect for the judicial system and bring the administration of justice into disrepute. A Sheriff, therefore, has no discretion to refuse to execute a writ of possession.

[72] The same principle clearly applies to the Sheriff's obligation to enforce an eviction order made by the Board, given that section 85 of the Residential Tenancies Act provides that an eviction order is to be enforced in the same manner as a writ of possession.

Toronto Community Housing v. Bryant Didier, 2018 ONSC 5158 (CanLII)

[11] The Landlord and Tenant Board reached its decision on January 19, 2016. The Board determined that it had no jurisdiction over Unit B3 because from the onset of Mr. Didier’s tenancy, Unit B3 was used “predominantly, if not exclusively, for commercial purposes.” The jurisdiction of the Landlord and Tenant Board is restricted to residential premises.

[12] Mr. Didier decided to appeal the decision of the Landlord and Tenant Board, but did not do so in time. Mr. Didier brought a motion to the Divisional Court seeking an extension of time to appeal the Board’s decision. On August 30, 2017, while the motion before the Divisional Court was pending, the TCHC served Mr. Didier with a second Notice to Quit to terminate his tenancy of Unit B3. This August 2017 Notice to Quit demanded that Mr. Didier vacate Unit B3 by September 30, 2017. The TCHC delayed enforcement of the August 2017 Notice to Quit while the Divisional Court had Mr. Didier’s motion under consideration.

[13] On October 19, 2017, the Divisional Court dismissed Mr. Didier’s motion to extend the time for his appeal on the basis that Mr. Didier’s appeal of the Landlord and Tenant Board’s decision had no merit. The Divisional Court held that the Landlord and Tenant Board’s determination that Unit B3 was not used as a residence “was amply supported by the evidence before it.” Appeals from the Board lie to the Divisional Court only on questions of law, and none were raised by Mr. Didier’s appeal.

[22] In cases where there is no written lease and where the parties dispute the type of tenancy that was agreed upon, the onus is on each party to establish, on a balance of probabilities, their respective positions concerning the term of the tenancy. In this regard, the Court must look at the surrounding circumstances, including the actions of the parties, to determine what the parties intended their contractual relationship to be: Manitouwadge General Hospital v. Kudlak, 2000 CarswellOnt 3243 (Ont. S.C.J.), at para. 28. All matters considered, in assessment of all evidence regarding Mr. Didier’s rental history, I have determined that Mr. Didier’s rental of Unit B3 is a monthly tenancy. I do not find in the current record any agreement on implied terms between the parties pertaining to the rental of Unit B3.

[24] The Landlord and Tenant Board determined that Mr. Didier’s rental of Unit B3 was exempted from the Residential Tenancies Act because it came within section 5(j), which exempts “premises occupied for business or agricultural purposes with living accommodation attached if the occupancy for both purposes is under a single lease and the same person occupies the premises and the living accommodation.” The Landlord and Tenant Board has the exclusive jurisdiction to determine and terminate a residential tenancy: section 168(2) of the Residential Tenancies Act; Toronto-Dominion Bank v. Hosein, 2016 ONCA 628, 133 O.R. (3d) 225; Warraich v. Choudhry, 2018 ONSC 1275, 2018 CanLII 1275 (Div. Ct.).

Ravnaski v. Zolis, 2020 ONSC 923 (CanLII)

[10] First, is Mr. Ravnaski a tenant of the estate such that any request for him to vacate the condominium is governed by the Residential Tenancies Act? The answer to this question will resolve both the estate’s application and part of Mr. Ravnaski’s application to set aside the arbitration award. If Mr. Ravnaski is a tenant of the estate and his tenancy is exclusively governed by the Residential Tenancies Act, the arbitrator did not have jurisdiction to order him to vacate the property and this Court does not have jurisdiction to grant the estate’s application for vacant possession. On the other hand, if Mr. Ravnaski is not a tenant of the estate, the estate is entitled to an order for vacant possession of the condominium. If this Court grants the estate’s application and orders Mr. Ravnaski to vacate the condominium, his application to set aside the arbitrator’s order that he vacate the condominium would be moot.

[15] The Residential Tenancies Act did not apply to the rental agreement Mr. Ravnaski had with his mother while she was alive, even though he paid her rent. The Residential Tenancies Act does not apply with respect to living accommodation whose occupant shares a bathroom or kitchen facility with the owner.[4] Mr. Ravnaski’s mother owned the condominium and they shared a kitchen. Mr. Ravnaski’s tenancy was, therefore, not covered by the Residential Tenancies Act while his mother was alive.

[17] For the reasons that follow, I find that Mr. Ravnaski had a contract with his mother to live in her condominium for a month at a time in exchange for rent. The estate was required to permit Mr. Ravnaski to live in the condominium for the remainder of the month for which he paid before his mother passed away. Mr. Ravnaski never entered into a contract with the estate that would permit him to continue to live in the condominium after the agreement he had with his mother expired. As a result, he is not a tenant of the estate and has no legal entitlement to stay in the condominium.

[33] I find that Mr. Ravnaski is not a tenant of his mother’s estate and there has never been a valid tenancy agreement between Mr. Ravnaski and the estate. Mr. Ravnaski’s occupation of the condominium was not governed by the Residential Tenancy Act while his mother was alive and that did not change after her death. The Estate Trustee is entitled to vacant possession of the condominium and Ms. Zolis’ application (CV-19-00624557-000) is granted.

[60] Mr. Ravnaski is not now and has never been a tenant of the estate. His occupation of the condominium is not governed by the Residential Tenancies Act. The estate’s application (CV‑19‑00624557-000) for vacant possession of the condominium is granted.

[61] In her application, Ms. Zolis asked for an Order that Mr. Ravnaski vacate the property immediately. She also asked for an Order authorizing her to seek the assistance of the Sheriff to secure the vacant possession of the property if Mr. Ravnaski does not voluntarily leave.

[62] Mr. Ravnaski is ordered to vacate the property within 90 days from today. If Mr. Ravnaski refuses to leave the condominium in compliance with my order, Ms. Zolis, in her capacity as the Estate Trustee, is granted leave to issue a writ of possession in relation to the condominium and require the Sheriff of the City of Toronto (the “Sheriff”) to put her in vacant possession of the condominium. Ms. Zolis, in her capacity as the Estate Trustee, can seek the assistance of the Toronto Police Service, the Sheriff and any qualified and licensed locksmith to obtain and secure vacant possession of the condominium. To the extent that the Toronto Police Service, the Sheriff of the City of Toronto or a locksmith are involved with securing vacant possession of the condominium for the Estate Trustee, they are to be held harmless.

Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII)

[24] The allegations against the police officers include that their conduct resulted in breaches of Roxanne’s Charter rights. Roxanne seeks damages for those breaches. Lastly, Roxanne claims punitive damages against the defendants on the basis that their conduct was callous and high-handed.

Issue No. 1 - Did the police have authority, under either of the provincial Trespass to Property Act or the Criminal Code of Canada, to arrest Roxanne without a warrant?

[25] It is undisputed that Roxanne’s arrest was carried out without a warrant. Under both the Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”) and the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”), police have the authority, in limited circumstances, to make an arrest without a warrant.

a) Arrest Without a Warrant Under the TPA

[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

Divitcos v. CompCorp Life Insurance Co. 1997 CarswellOnt 547 Ontario Court of Justice (General Division)

48. When Diane and Steve Divitcos re-entered the building and changed the locks after they had been evicted pursuant to a writ of possession, they were clearly doing an illegal act. One of the main public policies manifested in Part IV of the Landlord and Tenant Act is a legislative determination not to have the obtaining of possession of leased residential premises made the subject of self-help remedies by either landlords or tenants.

51. The Act reflects the expectation that in the usual case it would be the landlord that would be seeking to recover possession. However, as decided by Hayes J. in Foster v. Lewkowizc, supra , a tenant may seek a writ of possession - and it would follow that in the case of the tenant as much as in the case of the landlord that is the only lawful way to recover possession.

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.

75 It is submitted on behalf of the respondent mortgagee that the premises here in question, while clearly residential in the sense that they are not used for any other purpose, are excluded from the operation of Part IV of the Landlord and Tenant Act by virtue of subdiv.1(e) of that Act, which excludes from the definition of "residential premises" in that Act (which definition and exclusion are adopted and made applicable to Part V of the Mortgages Act ) premises described as follows:

(e) premises whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner's spouse, child or parent, or the spouse's child or parent, where the owner, spouse, child or parent lives in the building in which the premises are located,

I observe that the words "required to share ... a kitchen" require some interpretation. In my view, they mean that the only kitchen available for use by an occupant is one which another occupant is also entitled to use. An applicant may of course avoid sharing by simply not using the kitchen facilities. There is no mandatory requirement that he use them.

77. Each of Steve and Diane is a child of the owners, and the owners live in the building. The premises are therefore premises described in subdiv.1(e), and therefore are excluded from the term "residential premises". It follows that the provisions of the Mortgages Act and the Landlord and Tenant Act , which are applicable only to residential tenancies as defined, do not apply to the premises here in question.

78. Although the argument is admittedly quite technical I find it to be technically correct. And I find that the equities in this case so favour the respondents that I have no reluctance to accept the technical argument. I accept it as a second ground or reason for the dismissal of the motion.

Rossiter et al v. Swartz and Swartz, 2013 ONSC 159 (CanLII)

V. ANALYSIS OF CLAIM BASED ON THE DOCTRINE OF OCCUPATION RENT

[40] Occupation rent is an equitable remedy which may be claimed in circumstances where a person is in occupation of the land of another. The principle of occupation rent has been described by the Ontario Court of Appeal in Young v. Bank of Nova Scotia in the following terms:

If a person is in occupation without a lease, although the relationship of landlord and tenant will not exist, the law will imply a contract for payment to the landlord or a reasonable amount for the use and occupation of this land.

[41] The principle of occupation rent is founded on the presumption that the parties have agreed that the occupier will pay a reasonable amount of compensation for their use of the land. This presumption can be rebutted by evidence indicating that the parties intended that the occupier use the land without an expectation of providing compensation.[27]


Newman v. Glanville, 2019 ONSC 1040 (CanLII)

[1] Mr. Newman owns a house which is located at 446 Whitmore Avenue in Toronto. Cedric Glanville became a tenant in Mr. Newman’s home in August, 1994. It appears that the two friends never did have a written lease but Mr. Glanville paid his rent weekly and they shared the house for many years.

[2] Mr. Newman now applies under rule 14.05 for an order to evict Mr. Glanville.

[3] Mr. Newman has filed an affidavit in which he indicates that he first gave written notice to Mr. Glanville to leave the house back in 2010. He has repeatedly asked him to leave since then but Mr. Glanville has refused. In the interim, Mr. Glanville has begun to drink heavily and makes no effort to clean up after himself. He has not paid his rent since March 9, 2018 and he refuses to pay his arrears despite repeated requests by Mr. Newman.

[4] Mr. Newman served a written Notice of Eviction on Mr. Glanville on August 8, 2018. The Notice gave Mr. Glanville 60 days to vacate the house. The notice clearly set out the reasons for the eviction including the failure to clean garbage from the home, a refusal to clean the bathroom leaving it in “a disgusting state” and the excessive use of utilities. Notwithstanding a very reasonable notice period, Mr. Newman has not vacated the house.

[7] Mr. Newman initially sought to evict Mr. Glanville from the home by applying to the Landlord and Tenant Board under the Residential Tenancies Act 2006. The board declined jurisdiction to hear the application citing section 5(i) of the Residential Tenancies Act which excludes jurisdiction in circumstances where the landlord and tenant share either a bathroom or a kitchen. Mr. Newman and Mr. Glanville share both. In those circumstances, the Commercial Tenancies Act applies rather than the Residential Tenancies Act.

[8] Mr. Newman’s grounds to bring this application can be found in section 20 of the Commercial Tenancies Act. Under that section, the court has a wide discretion to grant relief where there has been a breach of a lease agreement. The court may:

a. order the payment of rent;
b. make a costs order;
c. award damages: and
d. issue injunctive relief to restrain any future breach of the lease agreement.

[9] Section 20 also permits the court to provide the respondent with an opportunity to remedy the defaults which gave rise to the breach of the leasing agreement.

[10] Under section 19(2) of the Commercial Tenancies Act, an eviction from the property can only be obtained if proper notice has been given. The notice provided to the tenant must specify the breach of the lease that is alleged by the landlord and provide an opportunity to the tenant to remedy that breach. Under section 28 of the Act, a weekly tenancy can be terminated on one week’s notice.


[12] Mr. Glanville has had sufficient opportunity to address the failings that gave rise to his breach of the lease. Mr. Newman served him with a very clear notice in writing on August 8, 2018 and no rent has been paid since that day. Mr. Glanville has done nothing to repair the damage that he has caused.

[13] Mr. Glanville is now wrongfully in possession of the home. I have received no evidence or submissions from him that would dissuade me from issuing an eviction order.

[14] There will be an order declaring that the lease was terminated on October 8, 2018.

[15] There will be a further order granting a writ of possession to Mr. Newman. The writ of possession may be enforced by the Sheriff’s office if Mr. Glanville does not vacate the premises by February 28th, 2019.

Central Guaranty Trust Co. v. McRae, 1993 CanLII 8542 (ON SC)

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.

Toronto-Dominion Bank v. Hosein, 2016 ONCA 628 (CanLII)

[25] The respondent relies on this court’s decision in Fraser v. Beach (2005), 2005 CanLII 14309 (ON CA), 75 O.R. (3d) 383, to support the application judge’s determination that the jurisdiction of the Superior Court is ousted by the provisions of the RTA. At issue in Fraser was an order of the Superior Court in a nuisance action. The Superior Court ordered the tenants to vacate the premises as a method of enforcing an earlier order restraining the landlord from operating an illegal rooming house. This court held that the tenancies could only be terminated by the Board pursuant to the predecessor statute to the RTA.

[26] Fraser is not applicable here. In Fraser and in Parker v. Yundt, 2012 ONSC 244 (CanLII), the applicants sought to terminate existing tenancies. The tenancy agreements were presumed to be valid.

[27] In this case, the appellant’s Notice of Application before the Superior Court was “for an order setting aside an alleged tenancy agreement” made between Boodhoo and Hosein. The application did not seek to terminate the tenancy. Fraser holds that the inherent jurisdiction of the courts to make an order evicting a residential tenant is ousted by the RTA. Here, jurisdiction is specifically given to the Superior Court by s. 52 of the MA not to terminate but to set aside a tenancy agreement when it was entered into by a mortgagor under certain conditions. The jurisdiction of the Superior Court to apply s. 52 of the MA has also been recognized by the Board: File Number: TET-66943-16, 2016 CanLII 38767, at paras. 14 and 18; File No. CEL-02248, 2007 LNONLTB 27, at para. 47.

Re Residential Tenancies Act, 1981 CanLII 24 (SCC), (1981) 1 SCR 714

DICKSON J.—The resolution of disputes between landlords and tenants has long been a central preoccupation of the common law courts. As early as 1587, Lord Coke observed that the law of landlord and tenant was vital since, “for the most part, every man is a lessor or a lessee”. (Walker’s Case[2] at p. 680.)


772067 Ontario Limited v Victoria Strong Manufacturing, 2017 ONSC 2719 (CanLII)

Issues for Determination

[6] The parties agree that the following six issues are to be determined on this motion:

1. Is it appropriate to determine the issues in both the main action and counterclaim by way of summary judgment?
2. Did the plaintiff have a right of re-entry on October 3, 2014 for non-performance of covenants?
3. Did the plaintiff have a right of re-entry on October 3, 2014 for non-payment of rent?
4. If the plaintiff exercised a valid right of re-entry on October 3, 2014 and thereby terminated the lease agreement, did the plaintiff nonetheless enter into a new agreement with the defendant to reinstate the old lease?
5. If the plaintiff exercised a valid right of re-entry on October 3, 2014 and did not agree to reinstate the old lease, what damages, if any, are owing by the defendant?
6. If the plaintiff did not have a valid right of re-entry or if the plaintiff violated the agreement to reinstate the old lease, what damages, if any, are owing to the defendant?

[30] The mandatory nature of s. 19(2), notwithstanding an agreement to the contrary, is supported by the important public policy purpose it serves. Section 19(2) serves to protect tenants and in this spirit courts have required strict compliance with its requirements. As the Court of Appeal states in 780046 Ontario at para. 23:

Notice is a protection to the tenant. Its purpose is to warn the tenant that its leasehold interest is at risk and to give the tenant an opportunity to preserve that interest by remedying the breaches complained of, and, where necessary, by compensating the landlord. Because courts have not looked favorably upon the remedies of re-entry, forfeiture and termination they have insisted that landlords strictly comply with the notice requirements in s. 19(2) of the Act.

[31] As a result, I find that the plaintiff had no right to re-enter pursuant to the purported breaches of covenant given that the requirements of s. 19(2) were not satisfied.

[36] With respect, I do not accept this submission. Section 18(1) of the CTA clearly provides that unless otherwise agreed, the plaintiff “may at any time” re-enter a premise if rent has been outstanding for more than 15 days. Notably, it does not require any notice. Section 19(2) requires notice prior to re-entry for breaches of covenant, but that section explicitly provides that it applies to breaches “other than a proviso in respect of the payment of rent”.


[41] I accept the plaintiff’s submission. The defendant’s contention that the deposits are due under previous lease agreements is at odds with its admission that the 2012 lease superseded and consolidated all previous leases. I note that in Nationwide Parking Inc. v. Daulat Investments Inc, 1990 CarswellOnt 2199 (H.C.), the court held that non-payment of a security deposit is not a default on the payment of rent and must be treated as a breach of covenant. However, the terms of that lease agreement were not made clear by the court, nor has it been relied upon subsequently for the proposition that a deposit can never be considered rent. I therefore conclude that the outstanding deposits were consolidated into the 2012 lease and are to be considered rent.


Toronto Community Housing v. Bryant Didier, 2018 ONSC 5158 (CanLII)

[22] In cases where there is no written lease and where the parties dispute the type of tenancy that was agreed upon, the onus is on each party to establish, on a balance of probabilities, their respective positions concerning the term of the tenancy. In this regard, the Court must look at the surrounding circumstances, including the actions of the parties, to determine what the parties intended their contractual relationship to be: Manitouwadge General Hospital v. Kudlak, 2000 CarswellOnt 3243 (Ont. S.C.J.), at para. 28. All matters considered, in assessment of all evidence regarding Mr. Didier’s rental history, I have determined that Mr. Didier’s rental of Unit B3 is a monthly tenancy. I do not find in the current record any agreement on implied terms between the parties pertaining to the rental of Unit B3.

[28] Section 2 of the Commercial Tenancies Act restricts its application to tenancies that are not residential in nature: “This Act does not apply to tenancies and tenancy agreements to which the Residential Tenancies Act applies.” The Landlord and Tenant Board found that the Residential Tenancies Act does not apply to Mr. Didier’s tenancy. I find that Mr. Didier’s rental of Unit B3 is governed by the Commercial Tenancies Act.

[33] Under the Commercial Tenancies Act, there is no requirement that the Landlord state a reason for termination in a monthly tenancy. Absent any term in a lease requiring the existence of any condition as justification for the termination of a commercial month-to-month rental by either party, 30 days’ notice is sufficient to terminate a lease under s.28 of the Commercial Tenancies Act: Downtown Pallets Ltd. v. Ontario Food Terminal Board, 2013 ONSC 502, 30 R.P.R. (5th) 153, at paras. 17‑18.

[34] Section 74(1) of the Commercial Tenancies Act provides:

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 ben 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.

[35] Mr. Didier has failed to vacate his occupation of Unit B3 after the TCHC served a valid Notice under section 28 of the Commercial Tenancies Act. The TCHC has thereby established an entitlement to the relief sought in this Application.

Sigrist et al. v. Keri McLean et al., 2011 ONSC 7114 (CanLII)

[102] The plaintiffs seek damages for unlawful eviction from their business and residential premises, loss of business income resulting from the wrongful eviction and distraint of their business and personal property and assets, as well as punitive damages for the defendants’ malicious and high-handed conduct. [115] As a commercial tenancy, the C.T.A. applies and any distraint taken by the landlord is also governed by the C.T.A.


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Sigrist et al. v. Keri McLean et al., 2011 ONSC 7114 (CanLII) Document History (3) Cited documents (39) Cited by (12) CanLII Connects (0) 

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Date: 2011-12-15 File number: CV-09-392873 Other citations: [2011] OJ No 5865 (QL) — 211 ACWS (3d) 239 Citation: Sigrist et al. v. Keri McLean et al., 2011 ONSC 7114 (CanLII), <http://canlii.ca/t/fpdp1>, retrieved on 2020-05-12 CITATION: Sigrist et al. v. Keri McLean et al., 2011 ONSC 7114 

                                                                                                COURT FILE NO.: CV-09-392873

DATE: 20111215

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

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)


Robert Sigrist and Lori-Ann Sigrist


Plaintiffs


– and –


Keri McLean, 1623463 Ontario Inc. and Chris McGowan


Defendants


)

) )

) )

) )

) ))

Benjamin Bathgate, for the Plaintiffs





Arnold H. Zweig, for the Defendants


)



)



)

HEARD:

Trial: March 22-29, 2011

Written & Oral Submissions:

May 2, 2011




CAROLE J. BROWN J.

REASONS FOR DECISION

Introduction


[1] The plaintiffs bring this action for specific performance of commercial/residential property located in Apsley, Ontario. In 2009, the plaintiffs entered into negotiations with the defendants for a two-year lease of the property with potential for purchase of the property. Restauranteurs, the plaintiffs moved their restaurant business and family of six from London to Apsley, believing that they had a two-year lease with option to purchase the Apsley property. This is disputed by the defendants, who take the position that the parties never arrived at an agreement regarding the purchase of the property. Within two months, there was discord between the defendant landlords and the plaintiff tenants and, within four months, the plaintiff tenants had been evicted and their assets distrained. The plaintiffs re-entered the property six months later under Court Order and resumed operation of their restaurant business, which they continue to operate pending final determination of this action.


The Issues

[2] The issues to be determined are as follows: 

           1.         Was there an enforceable contract?

           2.         If so, is specific performance available?

           3.         Were the eviction and distraint legal?

           4.         Are the plaintiffs entitled to damages?

           5.         Are the defendants entitled to damages, as claimed in their counterclaim?

The Facts and Evidence

[3] The plaintiffs, Robert and Lori-Ann Sigrist, are married and have four sons, Dylan, Nicholas, Oliver and Joseph. Robert is a professional chef, educated, trained and certified in Switzerland.

[4] Prior to moving to Apsley in 2009, the Sigrists lived for 15 years in Mississauga and 10 years in London. During this time, Robert worked as a business owner-chef of independent restaurants, and also worked in Food Management. Lori-Ann, a certified Management Accountant, managed the books and records of their restaurants. Robert was owner-chef of Le Troubadour Restaurant and Catering (Toronto) and subsequently Le Petit Gourmet Restaurant and Catering (Toronto). He thereafter worked in Food Management with Compass Group Canada. After their first two sons were born, the Sigrists chose to move to a smaller community to raise their family. They moved to London, where Robert continued to work with Compass Group. In 2004, he leased the Driftwood Restaurant for a five year term, with two additional options to renew. They had two more sons. The London economy began to change, the area was growing and they sought to move their family to a smaller centre where they could live, raise their family and establish a restaurant.

[5] They sought a community with infrastructure, schools, library, close to a city, with accessible emergency services, as their youngest son experienced seizures. They sought a property which had a restaurant, with living accommodation, that did not require much work to commence operation of the restaurant, on a trafficked highway, with growth potential. They sought a lease with option to purchase, which would permit them to get to know the area.

[6] They saw the MLS and Kijiji listings for the Apsley property, the Golden Pheasant Restaurant. Apsley was of interest, as it benefitted from government investment, had all the amenities necessary for their sons, including school, library, city hall, a new helipad for emergency medical services, which was important, given their youngest son’s health issues. The property was between Peterborough and Bancroft, not too far from Toronto, and benefitted from cottage traffic as well as snowmobile trails, which attracted winter traffic.

[7] The MLS listing advertised the 7.9 acre commercial property for sale at $399,000, with assessed value of $373,000, with “possible V.T.B. mortgage (“VTB”) O.A.C. or property can be leased for $1500 net net”.

[8] They contacted the real estate agent, Joanne Dean, viewed the property on March 9, 2009, and were provided with an information package from the vendor, 1623463 Ontario Inc., with OREA Seller Property Information Statement.

[9] Robert was attracted to the “turnkey operation”, the location, the mixed use (both commercial and residential), the size of the property, with advertised room for expansion, the advertised septic system and water softener, and the option to lease or purchase with a V.T.B. For the Sigrists, an option was crucial, as they would not move their family and business so far without an option to purchase.

[10] The property was owned by the defendant 1623463 Ont. Inc., a Company incorporated by the defendant, Keri McLean, to hold the property. She was the sole director and shareholder; the defendant, Chris McGowan, her common law partner, was the sole employee. The Apsley property was purchased to establish a restaurant business. The defendants wished to get away from Mississauga where Keri owned a computer consultant business and Chris was a transportation consultant/driver trainer. In 2004, they purchased the Golden Pheasant Restaurant. Keri testified that she had worked in the restaurant business before, but gave no details. From 2004-2008, financial statements for the restaurant business showed consistent and increasing losses each year, and accordingly they decided to sell or lease the property.

The First Meeting

[11] On March 13, 2009, Lori-Ann and Chris spoke by telephone according to notes kept by Lori-Ann. She testified that she generally takes notes of telephone conversations in a notebook, which was entered in evidence. She testified that she does not take notes of meetings in person. Lori-Ann testified that she and Chris discussed the lease with option to purchase. The lease was $1500 monthly net net, with option to purchase and possible VTB @ 5%. The monthly rent of $1500.00 was not negotiable. The purchase price was discussed as being “between $350,000 and $400,000, negotiable”. This is reflected in her notes. Chris denies that there was any discussion regarding an option to purchase or a range of purchase price, although he admitted that the plaintiffs enquired about purchasing the property and the purchase price.

The Option to Purchase

[12] The plaintiffs and defendants met at the property on March, 23, 2009. Keri testified that the meeting lasted 4-6 hours, with some discussions among the four of them and some discussions held in her absence. The plaintiffs were told that everything “worked like a charm” and the restaurant was a “turnkey operation”.

[13] The plaintiffs’ evidence is that at that meeting, the parties reached an agreement to lease the property for two years at $1500 per month, with additional expenses agreed to (net net) and with an option to purchase, with the purchase price to be negotiated within a range of $350,000 to $400,000 and a 100% VTB at 5% for 25 years. This price range is consistent with Lori-Ann’s notes taken during her telephone conversation with Chris McGowan on March 13.

[14] The plaintiffs testified that it was crucial to them to have an opton to purchase as they would not otherwise have considered uprooting their family and moving their home, business and personal life from London to Apsley absent the option. Moreover, Robert testified that in the restaurant business leases are usually longer, five years with either option(s) to renew or option to purchase, given the investment of finances and goodwill that goes into establishing a restaurant, and also because if one wishes to sell the restaurant business, one cannot do so without such an option. Robert testified that without an option to purchase, they would have wanted a longer term lease with option to renew or would have purchased the property outright at that time.

[15] Both parties agree that an oral agreement for a two-year lease of the property for $1500 net/net monthly was entered into; the defendants dispute the option to purchase agreement. While Keri testified that there was no discussion or agreement regarding the option to purchase, she conceded on cross-examination that her evidence on examination for discovery was that such discussions had occurred. Her partner, Chris, denied that there were any discussions regarding an option to purchase at the meeting nor any discussion or agreement regarding a range for the option purchase price, although he stated that the plaintiffs indicated that they would probably want to rent rather than purchase but would let him know. He further testified that prior to May 30, the plaintiffs expressed interest in purchasing the property and he advised them that the price was $400,000 with the plaintiffs to pay real estate fees and the cost of septic tank installation.

[16] Based on the evidence of the plaintiffs and the concessions on cross-examination of the defendant, Keri McLean, I find that there were discussions about an option to purchase at the March 23 meeting.

[17] No written draft of the agreement was prepared at that time. The plaintiff’s evidence was that the defendants appeared trustworthy and the plaintiffs relied on their oral agreements.

[18] The plaintiffs believed they had agreed to a two-year lease with option to purchase within the two year period at a price range of $350,000 - $400,000, with only the final price to be agreed upon within that range.

[19] The defendants maintained at trial that the parties had agreed to two separate agreements, a two-year lease to be reduced to writing and an oral agreement to purchase to be reduced to writing in December 2009 in order to avoid payment of real estate holdover fees. The plaintiffs testified that they would not have considered the short two-year lease without an option to purchase.

[20] With respect to the defendants insistence that there were two separate agreements, Keri conceded in cross-examination that she does not recall the defendants ever indicating to the plaintiffs that there would be two separate agreements, did not provide anything to the plaintiffs in writing to that effect and does not recall the plaintiffs agreeing to two separate agreements. Based on the evidence of the plaintiffs as to the importance of an option to purchase, particularly given the short two-year lease, and the concessions of Keri in cross-examination that she does not recall any discussions with the plaintiffs about entering into two separate agreements, I find that there were not two separate agreements, but rather one agreement, namely a short term lease with option to purchase.

[21] Lori-Ann testified that she spoke with Chris by telephone on March 24, during which they narrowed the option price range to “no more than $375,000” and “no less than $350,000”.

[22] On March 25, Lori-Ann spoke with the plaintiffs’ London real estate agent, Harry Lamb, advised him of the agreement regarding the Apsley property and obtained the name of an agent in Peterborough. At that time, they also spoke about listing their London home for sale and spoke with RBC about getting an appraisal on their home. All of this is reflected in Lori-Ann Sigrist’s notes. The sale of their London home was completed in August.

[23] The real estate agent, Joanne Dean, was to prepare the draft agreement. However, Keri emailed the plaintiffs on March 29 indicating that she had not heard from Ms. Dean and would attempt herself to detail the agreement in writing. The defendants emailed a draft agreement to the plaintiffs, which omitted the option to purchase. The plaintiffs prepared a draft in response which included the option to purchase. The parties exchanged several drafts thereafter; those prepared by the defendants continued to omit the option to purchase; those prepared by the plaintiffs included it.

[24] In reliance on the oral agreement of lease with option to purchase, the plaintiffs completed the move to Apsley, which cost approximately $11,000.00 and began to ready the restaurant for the opening. The plaintiffs invested in the purchase of new equipment for the restaurant, including a new rotisserie, convection oven, washers, dryers and also invested approximately $12,000.00 in signage, menus, publicity and uniforms for the new restaurant, which they named the Swiss Bear Restaurant and Bakery. They provided the defendants with a cheque for the first month’s rent.

The Meeting of May 30

The Purchase Price

[25] On May 30, 2009, the plaintiffs and defendants met and the purchase price was fixed at $380,000 for the option to purchase. The plaintiffs testified that the agreement included a 100% VTB at 5% for 25 years. The defendants deny this and testified that the option to purchase agreement was for $380,000 plus payment by the plaintiffs of real estate fees and septic system installation with no VTB, the agreement to be put into writing in December 2009. Keri’s understanding was that they had entered into a written agreement to lease and an oral agreement to purchase. Chris denied any discussion regarding a VTB, but conceded in cross-examination that this testimony was false and that at his examination for discovery, he had indeed admitted that there had been discussions about a VTB at 5% for, he thought, five years. Regarding the payment of real estate fees, he testified in chief that the plaintiffs had agreed to this, but changed his testimony and conceded in cross-examination that the plaintiffs had never agreed to pay the subject fees. He further conceded that by December 2009, when he agreed to put the option agreement in writing, there would be no holdover real estate fees, as the holdover period would have expired. Regarding the septic tank installation, which will be discussed in detail below, he testified in chief that the plaintiffs agreed to pay whatever the costs of the new septic system which was being installed; however, in cross-examination, he conceded that the plaintiffs were never given any documentation regarding the septic system installation or costs because he felt it was “none of their business”. Nevertheless, he stated that they had agreed to costs in the estimated range of $40,000 - $50,000. This is denied by the plaintiffs.

[26] Regarding the evidence of the defendants, and particularly that of Chris McGowan, I note that there were significant inconsistencies between his testimony in chief and in cross-examination, with concessions, admissions and changing of testimony in cross-examination related to the negotiations and agreements between the plaintiffs and defendants regarding the Apsley property. In contrast, the evidence of the plaintiffs in chief and in cross-examination was consistent. Where the evidence of the plaintiffs and defendants differed regarding the subject negotiations and agreement, I prefer the evidence of the plaintiffs.

The Additional Fees

[27] I do not accept the defendants’ evidence regarding the plaintiff’s agreement to pay additional fees, including septic installation and real estate fees. I do not find the defendants’ evidence to be credible or reasonable in that regard for the reasons stated below.

[28] I do not accept the defendants’ position that the plaintiffs agreed to pay costs of the septic system installation, when on their own admission in cross-examination, they admitted that they had not advised the plaintiffs about the septic system Work Order, the severance proposal, which had not been completed, nor the costs of the septic system at the time of the negotiations and agreement. I do not find the defendants’ evidence to be credible or reasonable that without any information regarding the septic system or the cost of installation, the plaintiffs would agree to pay “whatever it cost”.

[29] I also do not find the evidence of the defendants convincing regarding the plaintiffs’ alleged agreement to pay real estate fees in light of all of the evidence and the defendants’ concessions on cross-examination in this regard.

[30] I prefer the evidence of the plaintiffs and find that there was an agreement to lease, with option to purchase as at March 23, 2009, with the purchase price to be within the range of $350,000 to $400,000, to be determined at a later date. I accept the plaintiffs’ evidence that it was in reliance on this agreement that they moved family and business to Apsley.

[31] Both parties agree that a final purchase price of $380,000 was agreed upon on May 30. While the defendants argue that the final agreement included payment by the plaintiffs of the septic installation and real estate fees and was only to be formalized in writing in December 2009, I have already found that there was no agreement regarding additional payments or two separate agreements, one to be executed at that time and one in December 2009.

[32] The plaintiffs claimed that the final agreement included a 100% V.T.B. @ 5% for 25 years. The defendants deny that there was an agreement regarding a V.T.B. but do admit that the MLS listing referenced a possible V.T.B. mortgage, and Chris admitted in cross-examination that there was a discussion with the plaintiffs regarding a V.T.B @ 5% but, he thought, for five years and not for 100%. The plaintiffs testified that this was not important to the Agreement and was not, for them, an essential term. Accordingly, and based on all of the evidence in this regard, I find there was no oral agreement between the parties regarding a V.T.B.

[33] The defendants argue that, while there may have been an “agreement in principle” with respect to the option to purchase, there was no actual agreement regarding the essential terms of the agreement regarding the purchase price, payment of additional amounts for septic system and real estate fees and the V.T.B. The defendants submit that this Court cannot impose the terms of a contract where none existed, or where such terms are vague. I do not find that to be the case here, as I have already found at paras. 18, 27 to 32, above. The parties had agreed to the option to purchase within the two-year lease term with the purchase price to be within a defined range, to be determined at a later date. Both parties acknowledge that the final price was subsequently agreed upon at $380,000.

[34] In arriving at this decision, I have taken into consideration the cases of Erie Sand and Gravel Ltd. v. Seres’ Farms Ltd. 2009 Carswell Ont 6035, 2009 ONCA 709 (Ont C.A.) and Taub v. Elmira Purveyors Co, 1995 Carswell Ont 3589 (OCJ), relied upon by the defendants. In Taub, Molloy J. sets forth an overview of the law in this regard as follows at paras.16 and 17:

[16] While the general rule is that the parties must have reached agreement themselves on the essential terms of their contract and that the court will not write the contract for them, a lack of agreement on all terms of the contract will not necessarily be fatal: Calvan Consolidated Oil & Gas Ltd. v. Manning (1959), 1959 CanLII 56 (SCC), 17 D.L.R. (2d) 1 (S.C.C.). As stated by Chitty, “the agreement may be completed although it is not worked out in meticulous detail”: A.G. Guest, ed., Chitty on Contracts, 27th ed. (London: Sweet & Maxwell, 1994) at p. 135, First Energy (UK) Ltd., v. Hungarian International Bank Ltd., [1993] 2 Lloyd’s rep. 195. This is particularly the case when the uncertain or missing terms are not central to the contract: Canada Square Corp. v. Versafood Services (1981), 1981 CanLII 1893 (ON CA), 130 D.L.R. (3d) 205 (Ont. C.A.); Re Pattenick & Adams Furniture Co. Ltd. (4th) 730; or can be ascertained relatively easily by reference to a reasonableness standard or the practice in the industry; Re Nishi Industries Ltd. (1978), 1978 CanLII 1974 (BC CA), 91 D.L.R. (3d) 321 (B.C.C.A.); Kay Corp. v. Dekeyser (1977), 1977 CanLII 1809 (ON CA), 76 D.L.R. (3d) 588 (Ont. C.A.). The courts have been especially willing to find that a contract exists when it is clear that the parties intended their arrangement to have legally binding effect and have actually taken concrete steps in furtherance of the contract: Byrne v. Napier (1975), 1975 CanLII 329 (ON SC), 62 D.L.R. (3d) 589 (Ont. H.C.J.); Kay Corp v. Dekayser, supra; Sudbrook Trading Estate Ltd. v. Eggleton, [1983] 1 A.C. 444 (H.L.).


[17] Whether or not the agreement between the parties is sufficiently clear to be enforceable by the courts is a matter to be determined on the particular facts of each case. For example, there have been cases in which courts have found that the failure to agree on a contract price means that there has not been a binding contract created and other cases in which the courts have imposed a reasonable price even though no price had been agreed to by the parties: Godson v. P. Burns & Co. (1919), 1919 CanLII 539 (SCC), 46 D.L.R. 97 (S.C.C/); Re Pigeon and Titley, Pigeon, Lavoie Ltd. (1972), 1972 CanLII 455 (ON SC), 30 D.L.R. (3d) 132 (Ont. HC.); Re Nishi Industries, supra. In both sets of cases the same general principles of contract law have been applied but with quite different results. As Professor Waddams observed, in determining whether there is an enforceable contract there is no “rule of thumb”: S.M. Waddams, ed., The Law of Contracts, 3rd ed. (Toronto: Canada Law Book, 1993) at p. 26. He further states:

The determination of contract formation is not a mechanical process of applying rules but a complex and flexible procedure depending on many factors.

[35] While the defendants argue that the contract terms were not clearly agreed upon, I have found that the essential terms of the option to purchase were agreed upon. I do not need to impose a reasonable price, as the agreed upon range of $350,000 to $375,000 was ultimately finalized by May 30 at $380,000.

Ongoing Problems with the Property

[36] While the parties’ relationship at the beginning appeared to be good, it quickly deteriorated following the plaintiffs’ move to the property.

[37] Problems began to arise regarding the plumbing, kitchen equipment failures and sewage system according to the plaintiffs’ testimony, and it became apparent that the operation was not “turnkey” and did not “work like a charm”. The equipment found to be non-operative included a refrigerator, fryer, part of a soft serve ice cream maker, as well as other items. Where the plaintiffs had brought their own equipment from London, they simply replaced the non-operative items with their own equipment. The plaintiffs testified that they were told by Chris to place non-operative items in the back yard for the defendant to collect for recycling or scrap collection. The defendants deny this. The plaintiffs further testified that they arrived at an agreement with the defendants whereby they would have emergency repairs done and deduct the cost of those emergency repairs from their monthly rent. Examples of such repairs included a hot water tank that exploded, sewerage backup and plumbing problems. The defendants denied any agreement to deduct emergency repairs needed to keep the restaurant running, although they did cash the June rent cheque from which the plaintiffs had deducted and accounted for emergency repairs.

[38] The defendants began construction of a new sewerage system shortly after the plaintiffs moved in.

[39] On May 31, prior to the opening of the Swiss Bear Restaurant on June 6, the defendants delivered a letter, with a written lease which again omitted the option to purchase, threatening that if the plaintiffs did not sign the lease, the defendants would halt construction of the septic system.

[40] The plaintiffs began to investigate and discovered that in 2004, the defendants had applied for approval for construction of a larger septic system, as well as for severance of one acre of the neighbour’s land, as the tile bed for one of the two septic systems for the property was located on the neighbour’s land. The Sigrists further discovered that the land was subject to a violation and Provincial Officer’s Work Order dated September 24, 2004 regarding the septic system which remained outstanding. None of this had been disclosed to them. Indeed, in cross-examination at trial, both defendants admitted that the Work Order, which was required to be posted on the property, had been taken down prior to the plaintiffs’ first visit to the property, and was never disclosed to them.

[41] Moreover, the evidence indicates that the defendants failed to produce the Design Brief for the septic system and the Application for Approval of Municipal Private Sewage Works in the context of this litigation, despite undertakings arising from their examinations for discovery obligating them to produce the documents. They were produced by the Sigrists themselves shortly before trial as a result of their ongoing inquiries with the Ministry of the Environment. These documents demonstrate: that there were problems with the existing septic system; that the new septic system would have a much larger volume capacity, being almost twice the size of the existing system, and that the proposed septic system could not be constructed until the severance of the neighbours’ one acre of land was completed.

[42] While the Design Brief prepared by the engineers retained by the defendants described the septic system as “too small for the restaurant and apartment” and was reportedly prone to repeated backups and the Certificate of Approval from the Ministry of Environment dated January 27, 2005 stated that the existing sewerage systems were of “substandard performance”, Chris McGowan, on cross-examination, disagreed with that assessment and stated that the existing septic system was sufficient for the plaintiffs’ purposes. He further admitted that the new system was being constructed to accommodate the defendants’ expansion plans for a motel, laundromat and carwash on the property. He subsequently changed this testimony and admitted that the septic construction was to correct the plaintiffs’ plumbing problems and also for the defendants’ expansion plans. Keri Mc Lean admitted in cross-examination that as at May 30, there was no disclosure to the plaintiffs regarding the septic system Work Order, severance proposal, application for severance, nor were any invoices regarding the installation provided. Nevertheless, she maintained her position that the plaintiffs agreed to pay for the costs of the septic installation, without any of the information being given to the plaintiffs. The defendants’ evidence in this regard is not credible.

[43] It appears clear from the evidence that there were significant misrepresentations regarding the property, the severance issue and the listed acreage, the “turnkey nature” of the restaurant premises and equipment, the issues regarding the septic system, including the fact that it was subject to a Work Order and was not completely contained on the defendants’ property.

[44] On June 5, the day prior to the opening of the Swiss Bear Restaurant, the defendants attended at the property to obtain a signed copy of the draft lease they had sent to the plaintiffs on May 31, which did not contain an option to purchase. As that time, the plaintiffs advised the defendants of what they had learned from their investigations regarding the lack of disclosure and the misrepresentations concerning the property, including the uncompleted severance of the neighbours’ land, the actual size of the property which was 6.62 acres and not 7.9 acres as indicated in the MLS listing, that part of the existing septic system was not on the property and that a larger septic system had been applied for and approved in 2005, but remained uncompleted. As a result, the defendants became upset, advised the plaintiffs that all further communication would be through their lawyer, and left. This was confirmed by the defendants in writing. Thereafter, the plaintiffs attempted to communicate with the real estate agent, Joanne Dean.

[45] In July and August, the plaintiffs continued to encounter problems, which required repairs. Their accounting of repair costs done by them in July, which was entered in evidence, indicates that the repairs required amounted to more than the monthly rent and additional expenses owing such that the defendants owed them $1,050.00. The defendants deny any agreement whereby the plaintiffs could deduct the costs of any repairs from their monthly rent. Despite the plaintiffs’ requests for copies of all bills for the “net net” costs they had paid and were required to pay in August, no invoices were provided by the defendants.

[46] On July 28, 2009, the plaintiffs found a Notice of Arrears of Rent affixed to the restaurant, issued pursuant to the Commercial Tenancies Act (“C.T.A.”), requiring the plaintiffs to vacate the premises immediately and indicating that they had failed to sign a lease and were in arrears of rent of “more than $3000.00”. At no time was an accounting or breakdown provided by the defendants, nor was there any communication or warning from the defendants prior to posting the Notice of Arrears of Rent. This was confirmed by Chris McGowan in cross-examination.

[47] In response, on July 28, the plaintiffs provided their accounting of the monthly rent owing and the deduction therefrom of the costs of the repairs undertaken by the Sigrists. The plaintiffs further confirmed that a lease with option to purchase had been agreed to, in reliance on which they had moved their family and business to Apsley. Chris McGowan denies receiving this correspondence. The plaintiffs further retained a lawyer who corresponded with the defendants’ lawyer.

[48] The plaintiffs heard nothing further until September 8, 2009 when they found a Demolition Permit affixed to the restaurant.

[49] In cross-examination, Chris McGowan testified that he had had the Demolition Permit issued with the intention of intimidating the plaintiffs to “bring them to the table” to sign the lease without the option to purchase or to get rid of them.

[50] The evidence indicates that the property was listed again for sale on 7/9/09 (it was not clear from the evidence whether this was July 7 or September 9, 2009) on MLS. Chris McGowan testified that he knew nothing of that listing, but did relist the property for sale for $449,000 as of October 14, 2009, after the plaintiffs’ eviction and distraint.

[51] On Tuesday, September 22, 2009, the plaintiffs arrived at the restaurant in the evening, after a day away, and found the locks changed and a Notice of Termination of Tenancy posted “for non-payment of rent”, indicating that the plaintiffs owed $8,393.44 plus legal costs. No breakdown of the amounts allegedly outstanding was given to the plaintiffs at any time prior to posting of the Notice of Termination or, indeed, at any time prior to commencement of the action, nor were any invoices for any of the amounts provided. No previous warning of the lockout and eviction was given to the plaintiffs. At trial, a breakdown of the amount of $8,393.44 was produced, which indicates that the amount was inclusive of legal fees, and in cross-examination, the defendant, Chris McGowan, conceded that the amount posted as owing was incorrect.

[52] There is dispute as to the lockout and the property distrained by the defendants. It was the plaintiffs’ evidence that they were permitted to remove personal effects over a period of 30 minutes, following the lockout, but no business assets.

[53] Chris McGowan denied that the plaintiffs were only given 30 minutes to remove their belongings and testified that they could take anything they wanted. However, in his correspondence to the plaintiffs’ lawyer of October 30, 2009, Chris McGowan wrote that if the plaintiffs wished to pay the back rent and costs, the commercial chattels would be released to them, which contradicts his testimony that they were free to take anything they wanted. Moreover, he testified that he distrained the plaintiffs’ commercial assets because he had been contacted by RBC, which indicated that the plaintiffs commercial chattels were subject to a security agreement and must be distrained. However, in cross-examination, he admitted that, at that time, he knew that RBC had no security interest in the commercial assets he was holding.

[54] Email correspondence from RBC entered in evidence, indicates that “the Royal Bank did not authorize the landlord to seize [the plaintiffs] commercial assets”. I do not accept the defendant’s evidence regarding the distraint of the plaintiffs’ assets and his indication that they could remove anything they wanted, given the documentary evidence which contradicts his testimony.

[55] The plaintiffs remained out of the property and were unable to operate the Swiss Bear Restaurant and Bakery or earn a living. The Sigrist family resided in the basement of Mr. Sigrist’s brother in Scarborough.

[56] In November 2009, the plaintiffs retained new counsel, who brought a motion for relief from forfeiture which was granted by Newbould J. on March 8, 2010. They re-entered the property under Court Order and re-opened the Swiss Bear Restaurant on April 2, 2010, having been out of the property for over six months.

[57] The plaintiffs testified that upon re-entry of the premises, they found many items missing. These included personal belongings stored in the restaurant kitchen, including personal records, birth certificates, adoption records for one of their sons, along with business records and assets. They produced evidence and an accounting of the items and assets missing which they calculated to have a replacement value of $ 61,731.00. The defendants deny that any assets were disposed of or are otherwise missing except items which were perishable, old or dirty, which they disposed of. The damages claimed will be addressed below.

Specific Performance and the Statute of Frauds

[58] Specific performance is an equitable remedy for breach of contract. This discretionary remedy is available where damages would not suffice to adequately protect a plaintiff’s interest in a contract.

[59] Specific performance will be awarded where the evidence establishes that the property is unique and that a monetary award of damages is not an adequate substitute for the plaintiff’s loss. The plaintiff must show that the property has distinctive features that make an award of damages inadequate: John E. Dodge Holdings Ltd v. 805062 Investments Ltd., 2001 CanLII 28012 (ON SC), [2001] O.J. No. 4397 (S.C.).

[60] At trial, the defendants submitted that, given the time that had lapsed, and the fact that the two year lease term ended April 30, 2011, the issue of whether there was an enforceable lease agreement was moot, and the only issue was whether there was an enforceable agreement regarding the option to purchase. They confirm that if an enforceable, binding option to purchase is found to exist, they will honour the performance of the option if it is exercised. While the two year lease agreement has now expired, it will be discussed within the context of the overall negotiations and agreement.

[61] It is the position of the defendants that there was no written agreement regarding the option to purchase as required by the Statute of Frauds and, therefore, there can be no enforceable contract of specific performance thereof. The plaintiffs take the position that the defendants are barred from relying on the Statute of Frauds, as they did not plead it in their Statement of Defence.

[62] I have already found, based on all the evidence, that a contractual agreement existed, the terms of which are as follows: 

           1.         a two-year lease of the property at $1500 per month net net commencing May 1,                                  2009.  The additional (“net net”) expenses included:

• property taxes

• propane

• hydro

• dish machine lease 

           2.         an option to purchase the property within the two years at $380,000.

[63] The only issue is whether the contract is enforceable at law. 

           (a)        Was there an enforceable contract?

[64] Pursuant to s. 4 of the Statute of Frauds, an agreement for the sale of land must be in writing to be enforceable. Section 4 states:

No action shall be brought to charge any executor or administrator upon any special promise to answer damages out of the executor’s or administrator’s own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of any other person, or to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which the action is brought, or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some person thereunto lawfully authorized by the party.

[65] The purpose of this requirement is to prevent fraudulent or unconscionable dealing. Therefore, the Statute of Frauds should not itself be permitted to be used as a tool of perpetuating fraud. This concern was elucidated in Erie Sand and Gravel Ltd. v. Seres’ Farms Ltd. (2009), supra., at para. 49 by Gilles J.A. writing for the Ontario Court of Appeal:

The purpose of s. 4 of the Statute of Frauds is to prevent fraudulent dealings in land based on perjured evidence. However, Equity will not allow the Statute of Frauds to be used as an “engine of fraud”. It created the doctrine of part performance to prevent the Statute of Frauds from being used as a variant of the unconscionable dealing which it was designed to remedy: see Hill v. Nova Scotia (Attorney General), 1997 CanLII 401 (SCC), [1997] 1 S.C.R. 69, at para. 10.

[66] In the instant case, there is no allegation that the plaintiff acted fraudulently or that the defendant was vulnerable in any way. This should and will be taken into consideration in guiding the application of the Statute of Frauds, which will not automatically be applied to defeat the plaintiff’s claim on a technicality, and will be addressed when I discuss part performance. 

           (b)        Defendant’s failure to plead the Statute of Frauds

[67] The plaintiffs take the position that the defendant must specifically plead the Statute of Frauds in order to rely upon it as a defence to a claim for specific performance: Kent v. Ellis (1990), 31 S.C.R. 110; Mariani v. 778963 Ontario Ltd., [2005] O.J. No. 4581 at para. 32 and Medjed v. 1007323 Ontario Inc., [2004] O.J. No. 4728 at para. 63.

[68] The Supreme Court of Canada in Kent v. Ellis explained the purpose behind the requirement of pleading the Statute of Frauds. Citing British jurisprudence, Clarke v. Callow (46 L.J.Q.N. 53) and Hawkins v. Lord Penrhyn (4 App. Cas. 58), the Supreme Court of Canada explained that a party must plead the Statute of Frauds because “otherwise it could not be know whether or not he intended to shelter himself under the statute, or to waive his right to shelter himself under it.”

[69] However, the failure to plead the defence under the Statute of Frauds does not automatically result in defeat of the defence. Those cases in which the failure to plead the Statute of Frauds has been found to be fatal to the defence are cases where the defence is weak in the first place: See Kent v. Ellis, supra; Medjed v. 1007323 Ontario Inc., [2004] O.J. No. 4728.

[70] For example, in McKenzie et al. v. Peel County Board of Education (1975), 1974 CanLII 644 (ON CA), 5 O.R. (2d) 549, the Ontario Court of Appeal’s decision not to permit the defendant to use the Statute of Frauds as a defence was guided not only by the failure to plead the defence but also by the evidence of a written contract.

[71] Similarly, in Severin v. Vroom (1977), 156 O.R. (2d) 636, [1977] O.J. No. 220 (C.A.) at para. 7, after finding that the Statute of Frauds was not pleaded and therefore could not be used as a defence, Estey C.J.O. noted that the defence would not be available to the defendant even if it had been pleaded as the documentary and testimonial evidence supported the contention that there had been part performance of the agreement.

[72] I note that the defendants did plead at para. 43 of their Statement of Defence, as follows:

The defendants deny that the Plaintiffs are entitled to specific performance as claimed in paragraph 1(a) of the Statement of Claim as there is no agreement in writing that sets out the terms by which there was to be an option to purchase.

[73] While the defendants rely on the provisions of s.4 of the Statute of Frauds, making reference to the absence of an agreement in writing, they do not specifically reference the Statute or s.4.

[74] The principle behind the requirement to plead a specific defence is to put the plaintiff on notice of the defence to be relied upon and the case to be met. The wording of the defendants pleading in this regard would put the reasonable litigant on notice of the defence, although the Statute is not specifically pleaded.

[75] I note that there was significant evidence both viva voce and documentary related to the negotiations regarding the lease agreement with option to purchase, despite the failure to specifically plead the Statute of Frauds. Based on this, and the evidence regarding the verbal negotiations, I find that the plaintiffs were put on notice of the issue.

[76] The defendants’ counsel acknowledges the failure to plead the Statute of Frauds in the Statement of Defence and, in written submissions, after the trial, requested an amendment to the pleadings to specifically plead the defence as follows: 

           “The defendants plead and rely upon the Statute of Frauds”.

[77] Rule 26 of the Rules of Civil Procedure provides:

On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[78] Rule 26 provides broad authority to amend a pleading at any stage of a proceeding, including at or after trial unless such amendment would cause injustice or irremediable prejudice to the other side that cannot be compensated for by costs.

[79] While an amendment such as that sought by the defendants may be available pursuant to R. 26 even after trial, and the defence appears to have been contemplated by the parties based on the evidence adduced at trial such that it would not take the plaintiffs by surprise or cause an injustice, I find that such an amendment would have no ultimate effect on the outcome. Taking into consideration the principles set forth in McKenzie v. Peel County Board of Education, Severin v. Vroom and Medjed v. 1007323 Ont. Inc., discussed at paras, 69-71 above, I find that there is, based on all of the evidence adduced, sufficient evidence of part performance of an agreement to take it out of the Statutes of Frauds requirements in any event. This will be elucidated below.

Part Performance

[80] The doctrine of part performance is an exception to the Statute of Frauds. It is equitable in nature and designed to operate in appropriate circumstances, to prevent a party from avoiding liability under an agreement that is lacking written proof.

[81] Under the doctrine of part performance, specific performance is available for a contract for the sale of land or a lease despite the absence of written material or documentation that would satisfy the Statute of Frauds. To engage the doctrine of part performance, the party seeking specific performance must establish evidence of acts unequivocally referable to some such agreement as that alleged. The acts of part performance must be those of the plaintiff, although it is well settled law in Canada that the acts of both parties to an alleged oral agreement may be considered in determining if sufficient acts of part performance take the alleged agreement outside the operation of the Statute of Frauds: Hill v. Nova Scotia (A.G.), 1997 CanLII 401 (SCC), [1997] 1 S.C.R. 69 (S.C.C.); Erie Sands & Gravel Ltd. v. Seres Farms Ltd., supra.

To establish part performance, four requirements must be met, as set forth in Kang Corp. v. KRTT Group Ltd., [2007] O.J. No. 1500, as follows: 

           1.         the performance must be referable to the contract;

           2.         the acts of performance must be acts of the plaintiff;

           3.         the contract must be one  for which the law would grant specific performance if it                                  had been properly evidenced in writing; and

           4.         there must be clear and proper evidence of the existence of the contract.

[82] In this case, the issue is whether there is sufficient evidence to establish the four required elements of part performance of a lease with option to purchase.

1. Performance referable to the contract

[83] Two approaches have developed in Canadian jurisprudence with respect to this requirement.

[84] The first is the stricter approach taken by the Supreme Court of Canada in Deglman v. Brunet Estate, 1954 CanLII 2 (SCC), [1954] S.C.R. 725. The Court held in that case that conduct must “unequivocably” refer to the particular land in issue. Purchase money alone is not a sufficient act of part performance to merit an exception from the application of the Statute of Frauds.

[85] Since Deglman, first British courts, and then, Canadian courts, have taken a more liberal approach. In Steadman v. Steadman, [1976] A.C. 536, 2 All E.R. 977, the English House of Lords held that, in some situations, the payment of monies may qualify as part performance. Lord Reid explained at p. 980:

But it is not difficult to see one principle behind them. If one party to an agreement stands by and lets the other party incur expenses or prejudice his position on the faith of the agreement being valid he will not then be allowed to turn round and assert that the agreement in unenforceable. Using fraud in its older and less precise sense, that would be fraudulent on his part and it has become proverbial that courts of equity will not permit the state to be made an instrument of fraud.

[86] Steadman has been followed by the Ontario Court of Appeal in Severin v. Vroom and the Ontario Superior Court, even more recently in Hunter et al v. Baluke (1998), 1998 CanLII 14719 (ON SC), 42 O.R. (3d) 553.

[87] However, it appears that there is a debate in the jurisprudence as to whether Ontario courts should follow the stricter standard in Deglman or the more flexible standard in Steadman. See: Stack v. Zizman, [2007] O.J. No. 1562 (S.C.J.).

[88] In Kang Corp., Baltman J. explained at para. 15 that Ontario courts have generally followed the Deglman standard:

As noted by Paul Perell (now Perell, J.) and Bruce Engell in their text Remedies and the Sale of Land, 2nd ed. (Toronto: Butterworths, 1998) p. 17, “the courts in Ontario seem to have followed the stricter Supreme Court approach, while the courts elsewhere in Canada note that the Supreme Court has not revisited this issue since the Steadman decision was released and therefore have chosen to follow the more liberal approach.” In Alvi v. Lal (1990), 13 R.P.R. (2d) 302 (Ont. H.C.), Then J. stated “whatever may be the current judicial trend, it seems clear that until the Supreme Court of Canada accepts Steadman, the payment of money cannot constitute part performance of a contract with respect to a contract involving Land” (para. 36). See also the reasons of Spiegel J. in Neighbourhoods of Cornell Inc. v. 1440106 Ontario Inc., [2003] O.J.No.2919 (S.C.J.), paras, 66-79, who appears to lean toward the stricter approach.

[89] I follow the approach taken in Deglman, as interpreted by the Ontario Courts. I find that there are numerous acts of part performance which are unequivocally referable to the existence of an agreement to lease with an option to purchase the Apsley property, including 

           1.         the preparation and delivery by the plaintiffs of written draft agreements                                                 reflecting the purchase options;

           2.         the closing of their restaurant business in London;

           3.         the listing of their London  home for sale, which indicates a permanent intention                         to move;

           4.         the moving of their family of six, personal property, business; business records                           and assets from London to Apsley; and

           5.         the investment in a new business, generation of goodwill and improvements to the                      property.

[90] The defendants argue that these acts must be unequivocably referable to a contract for the purchase of land and that the acts in question are equally referable to a lease of the property.

[91] The defendants further argue that an agreement to lease and an option to purchase are separate agreements at law. The defendants argue that while there may have been demonstrated part performance on the lease agreement, there were no acts that could be considered referable to the option to purchase agreement and, therefore, no part performance thereon. They argue that this proposition was confirmed by Newbould J’s decision regarding relief from forfeiture which, they contend, determined that the two are independent contracts. It is clear from reading that decision that Newbould J. did not address this issue. The motion before him related only to relief from forfeiture and not whether the lease and option were part of the same oral agreement. I do not accept the defendants argument. I have found that the lease and option were part of the same agreement and that the acts of part performance are referable to the purchase of the land.

[92] When considering these acts of part performance in the context of the entire case and the evidence adduced, I find that the acts were undertaken in anticipation of the fulfillment of the option to purchase.

[93] In this regard, I have considered the case of Erie Sand & Gravel, relied on by the defendant, in which the proper approach to the determination of whether acts of part performance are referable to the contract in issue is described as follows:

[94] …Begin by determining the context (or the “relevant circumstances” to use Haskett terminology). Then consider the acts of part performance having regard to the way in which reasonable people carry on their affairs.

[94] There is a resonance to this common sense approach.

[95] The parties agree that there was no written agreement for the lease with option to purchase. The plaintiffs submit that their drafts of the agreement prepared and provided to the defendants set forth the terms orally agreed upon, including the option to purchase. The defendants submit that the terms agreed upon are reflected in their drafts provided to the plaintiff.

[96] I have determined that the agreement between the plaintiffs and defendants was for a two year lease with option to purchase. The plaintiffs efforts to put the oral agreement in writing in the drafts provided to the defendants were done in furtherance of formalizing the agreement and constitute acts of part performance on the agreement.

[97] While the defendants took the position that there was no option to purchase discussed or agreed upon, or that an option to purchase was to be part of an agreement separate and distinct from the lease, to be formalized at a later date, it was the plaintiffs’ evidence that the parties entered into an oral agreement to lease the Apsley property, with option to purchase on March 23, 2009, and it was on the basis of that agreement that they uprooted their family and moved their business to Apsley. The plaintiffs’ evidence, consistent throughout, was that they would not have sold their London home, moved their entire family and their business, and invested in a new business without having an option to purchase the property, or renewable longer term lease. A two year business lease in the circumstances would be nonsensical. I have accepted the plaintiffs evidence in this regard.

[98] While the defendants insist that there was no agreement for the sale of land when the plaintiffs moved to Apsley, and that the plaintiffs cannot rely on the alleged representations in that regard, I prefer the plaintiffs’ evidence that an agreement regarding the option had been reached, including the specific range for the purchase price, with the exact price to be determined within that range. I accept that, on the basis of this agreement with option, the plaintiffs moved their family of six from London to Apsley, listed their London home for sale, closed their London business, and established the new restaurant business, with all the attendant start-up costs. Without the option to purchase, such a significant move and investment for only a two-year lease would have defied logic and made no sense. I find the plaintiffs acts in relocating their family and business to be acts of part performance, unequivocably referable to the lease with option to purchase.

2. Acts of performance are those of the plaintiffs

[99] All acts reference above were those of the plaintiffs.

3. The contract is one for which specific performance would be granted

[100] It is clear that in the circumstances of this case the requirement is met. The evidence indicates that the plaintiffs were seeking a property in a community with specific features and amenities to suit the needs of their family and their restaurant business. The property located by them suited and was unique to their needs. An award of damages in all of the circumstances, rather than specific performance would be woefully inadequate.

There must be clear and proper evidence of the existence of the contract

[101] I have found that the parties entered into an agreement to lease with option to purchase. I find, based on all of the evidence, documentary and viva voce, that this requirement is met.

Were the Eviction and Distraint Legal?

[102] The plaintiffs seek damages for unlawful eviction from their business and residential premises, loss of business income resulting from the wrongful eviction and distraint of their business and personal property and assets, as well as punitive damages for the defendants’ malicious and high-handed conduct.

The Eviction

[103] The plaintiffs received their first Notice of Eviction for failure to sign a lease and unspecified arrears of rent of “more that $3000” on July 28, 2009, followed by a Demolition Permit on September 8, 2009, which Chris McGowan testified was used as an “intimidation tactic” to force the plaintiffs to either sign their lease, without option to purchase, or to leave the premises. In neither case, and at no time after June 5, had the defendants attempted to speak with the plaintiffs. Nor had they given the plaintiffs any warning. I find these tactics to be unbusiness-like, unprofessional, high-handed and reprehensible.

[104] On September 22, the defendants issued a final Eviction Notice, again without any prior communication or attempt to discuss issues or concerns. They changed the locks to the business and residential property and, further, distrained the plaintiffs’ business and personal assets.

[116] The right of distraint (also known as distress) is a common law right available to landlords for recovery of arrears of rent under a lease. It allows landlords to seize goods and chattels on the leased land in question and owned by the tenant. The remedies of forfeiture and distress are mutually exclusive at law and, therefore, the landlord must choose between the right of forfeiture or the right of distraint. Where the landlord elects forfeiture, a simultaneous distress is illegal and will result in the landlord being liable to the tenant for the full extent of the tenant’s damages: See: Falwyn Investors Group Ltd. v. G.P.M. Real Property (6) Ltd., [1998] O.J. No. 5258 (Gen. Div.).

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