Forfeiture (CTA)

859587 Ontario Ltd. v. Starmark Property Management Ltd., 1997 CanLII 12153 (ON SC)

Termination, forfeiture or surrender

It is trite law that a landlord must elect between the remedies of termination and distress. He cannot exercise both. Atlantic relies on the landlord's changing of the locks, and its efforts to re-let the premises as proof that it acted in a manner inconsistent with the continued existence of the lease.

It is true that where a landlord locks the premises and excludes the tenant, the courts generally consider this to be an act of forfeiture, disentitling the landlord to the remedy of distress: see, for example, Clarkson Co. v. Consortium Group Ltd. (1983), 1983 CanLII 1995 (ON SC), 40 O.R. (2d) 771, 45 C.B.R. (N.S.) 273 (H.C.J.), and the cases discussed therein. But here, the evidence is that the tenant was not excluded, having regard to the face of the warrant and the bailiff's subsequent acts, and that the locks were changed to protect the property, and the right of distress, the goods being too bulky to remove. In addition, removal of the booth would have necessitated repairs to the premises. The cases have recognized that in some circumstances, changing the locks may reflect an impounding of the goods distrained, and not forfeiture. In Lussier v. Denison, 1971 CanLII 737 (ON SC), [1972] 3 O.R. 652 at p. 655, 29 D.L.R. (3d) 160 (Co. Ct.), affirmed without reasons 1972 CanLII 378 (ON SC), [1972] 3 O.R. 656n, 29 D.L.R. (3d) 164n (C.A.), P.J. Macdonald Co. Ct. J. stated:

It is argued for the landlord that in this case there was an impounding of the premises which amounted to a distress and not a forfeiture and that while usually a landlord would remove the distrained articles from the premises, it would be difficult and impractical in this situation to remove the machinery which was of a heavy type and that off-premises storage would be expensive. There is no evidence before me that would suggest that taking of the goods from the premises would be impractical.