Distrainment (CTA)

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

22 Where a lessor has commenced an action to enforce a right of re-entry or forfeiture under a covenant, proviso or stipulation in a lease, every person claiming any right, title or interest in the demised premises under the lease, if it is known to the lessor that the person claims such right or interest or if the instrument under which the person claims is registered in the proper land registry office, shall be made a party to the action. R.S.O. 1990, c. L.7, s. 22.

30 (1) The goods and chattels exempt from seizure under execution are not liable to seizure by distress by a landlord for rent, except as hereinafter provided.

(2) In the case of a monthly tenancy, the exemption only applies to two months arrears of rent.

(3) The person claiming the exemption shall select and point out the goods and chattels that the person claims to be exempt.

31 (1) In this section, subject to section 32,

“tenant” includes a sub-tenant and the assigns of the tenant and any person in actual occupation of the premises under or with the assent of the tenant during the currency of the lease, or while the rent is due or in arrear, whether or not the person has attorned to or become the tenant of the landlord. R.S.O. 1990, c. L.7, s. 31 (1).

(2) A landlord shall not distrain for rent on the goods and chattels of any person except the tenant or person who is liable for the rent, although the same are found on the premises; but this restriction does not apply in favour of a person claiming title under an execution against the tenant, or in favour of a person whose title is derived by purchase, gift, transfer, or assignment from the tenant, whether absolute or in trust, or by way of mortgage or otherwise, nor to the interest of the tenant in any goods or chattels on the premises in the possession of the tenant under a contract for purchase, or by which the tenant may or is to become the owner thereof upon performance of any condition, nor where goods or chattels have been exchanged between tenants or persons by the one borrowing or hiring from the other for the purpose of defeating the claim of or the right of distress by the landlord, nor does the restriction apply where the property is claimed by the spouse, daughter, son, daughter-in-law, or son-in-law of the tenant, or by any other relative of the tenant’s, if such other relative lives on the premises as a member of the tenant’s family, or by any person whose title is derived by purchase, gift, transfer or assignment from any relative of the tenant’s to whom the restriction does not apply. R.S.O. 1990, c. L.7, s. 31 (2); 1999, c. 6, s. 9 (2); 2005, c. 5, s. 10 (3); 2016, c. 23, s. 40.

(3) Nothing in this section exempts from distress goods or chattels in a store or shop managed or controlled by an agent or clerk for the owner of the goods or chattels where the clerk or agent is also the tenant and in default, and the rent is due in respect of the store or shop or premises rented therewith and thereto belonging, if the goods or chattels would have been liable to seizure but for this Act. R.S.O. 1990, c. L.7, s. 31 (3).

33 (1) A tenant in default for non-payment of rent is not entitled to the benefit of the exemption provided for by section 30 unless the tenant gives up possession of the premises forthwith or is ready and offers to do so. R.S.O. 1990, c. L.7, s. 33 (1).

(2) The offer may be made to the landlord or to the landlord’s agent, and the person authorized to seize and sell the goods and chattels, or having the custody of them for the landlord, shall be considered an agent of the landlord for the purpose of the offer and surrender to the landlord of possession. R.S.O. 1990, c. L.7, s. 33 (2).

34 (1) A landlord that desires to seize exempted goods shall, after default has been made in the payment of rent and before or at the time of seizure, serve the tenant with a notice (Form 1). R.S.O. 1990, c. L.7, s. 34 (1).

(2) The surrender of possession in pursuance of the notice is a determination of the tenancy. R.S.O. 1990, c. L.7, s. 34 (2).

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

(2) Notice of the claim of set off (Form 2) may be given before or after the seizure. R.S.O. 1990, c. L.7, s. 35 (2).

(3) When the notice is given, the landlord is entitled to distrain, or to proceed with the distress, only for the balance of the rent after deducting any debt justly due by the landlord to the tenant that is mentioned in the notice. R.S.O. 1990, c. L.7, s. 35 (3).

43 Distress shall be reasonable. R.S.O. 1990, c. L.7, s. 43.

55 (1) A distrainor who takes an excessive distress, or takes a distress wrongfully, is liable in damages to the owner of the goods or chattels distrained. R.S.O. 1990, c. L.7, s. 55 (1).

(2) Where a distress and sale are made for rent pretended to be in arrear and due when, in truth, no rent is in arrear or due to the person distraining, or to the person in whose name or right such distress is taken, the owner of the goods or chattels distrained and sold, the owner’s executors or administrators are entitled, by action to be brought against the person so distraining, to recover full satisfaction for the damage sustained by the distress and sale. R.S.O. 1990, c. L.7, s. 55 (2).