Frustration of Contract (LTB)

CET-55930-16-RV (Re), 2016 CanLII 88098 (ON LTB)

2. Section 19 of the Residential Tenancies Act, 2016 (the 'Act') states that the doctrine of frustration and the Frustrated Contracts Act apply to tenancy agreements.

3. The doctrine of frustration (or impossibility of performance as it is also sometimes referred to) requires that a number of conditions be met before the doctrine will apply as identified in the Dictionary of Canadian Law, 3rd edition, D. D, pages 513-514.

4. First, an unexpected event that was not contemplated in the contract or foreseeable must occur.

5. Second, the unexpected event cannot be self-induced or the fault of one of the parties. A frequently quoted case on frustration states that the event cannot be the fault of either party (National Carriers Ltd. V. P (Northern) Ltd. [1981]1 A11 E.R. 161 (H.L.).

6. If it were otherwise, a party could undertake a destructive act (such as destroying a rental unit by fire or flood) in order to get themselves out of their obligations under a contract. This would be a self-induced frustration and an unjust result would occur if a party could rely on their own negligent acts or fault to get themselves out of an otherwise binding contract.

7. Third, the event must drastically change the nature of the contract so that it is impossible (not just difficult or expensive) to perform the obligations under the contract. The impossibility of performance must be of a long term nature and not temporary or transient.

8. The court in Re S and J et al., 1984 CanLII 2014 (ONSC) quoted the case of Lord S S.S. Co. Ltd. v. D C Co., Ltd., 1925 CanLII 330 (UK JCPC), (1926) 1 D.L.R. 873, (1926) A.C. 108 at p. 114, (1926) 1 W.W.R. 273, which held that:

... frustration can only be pleaded when the events and facts on which it is founded have destroyed the subject matter of the contract, or have, by an interruption of performance thereunder so critical or protracted as to bring to an end in a full and fair sense the contract as a whole, so superseded it that it can be truly affirmed that no resumption is reasonably possible.

9. All the conditions must be met for the doctrine of frustration to apply. If it is determined that one condition does not apply, it is not necessary to do a further analysis of whether the other conditions were met.

TSL-79813-16 (Re), 2017 CanLII 28616 (ON LTB)

13. Section 19 of the Act speaks to the issue of frustration of contracts. It reads as follows:

19. The doctrine of frustration of contract and the Frustrated Contracts Act apply with respect to tenancy agreements. 2006, c. 17, s. 19.

14. Frustration of contract means that a contract can be brought to an end because of some factor that makes it impossible for a party, or both parties to comply with its fundamental terms. The party that argues that the contract should be put to an end must establish that it is impossible to perform the contract.

15. The facts in this case do not establish that on a balance of probabilities the Landlord is unable to perform the contract. Rather, what is evident is that the tenancy could continue once the Landlord has repaired the residential complex. The Tenant’s unit is intact; there is no dispute that the Tenant’s unit is not damaged. The issue is that the Landlord needs to repair the remainder of the residential complex, and her presence in the unit impedes his ability to do so.

CET-53895-15 (Re), 2016 CanLII 44625 (ON LTB)

13. In this case, the Landlord did not serve the Tenant with a notice of termination of tenancy for the purpose of repairs or renovations. The repairs and renovations were only initiated because of the fire, which was an unexpected and unfortunate event. Therefore, section 53 of the Act does not apply and the Tenant is not entitled to have the right of first refusal or to reoccupy the unit.

14. The Landlord is relying on the doctrine of frustration of contract and would like termination of the tenancy on this basis.

15. Section 19 of the Act states that: The doctrine of frustration of contract and the Frustrated Contracts Act apply with respect to tenancy agreements.

18. This tenancy is currently impossible to perform given the condition of the building. Therefore, the tenancy agreement was frustrated as a result of the fire on November 5, 2015. As a result, the parties were discharged from any performance of the tenancy agreement after November 5, 2015. Therefore, the Tenant is entitled to the return of her November 2015 rent on a pro-rated basis

TET-67067-16 (Re), 2016 CanLII 72234 (ON LTB)

1. At 4:30 a.m. on Sunday, October 11, 2015, the Tenant was sleeping on the couch when she was woken by the police and evacuated from the rental unit along with her adult son and 7 year old granddaughter. The unit was on fire. The ignition point was the balcony. The family was transported to a local hospital and released shortly after. The Tenant has been staying in a hotel ever since, waiting for the rental unit to be repaired so she can return.

2. The Landlord takes the position that the tenancy was terminated as a result of the fire based on the doctrine of frustration of contract. (See section 19 of the Residential Tenancies Act, 2006 (the 'Act').) If the tenancy was terminated at the time of the fire then the Landlord cannot be held responsible for what happened to the Tenant afterwards.

3. In the alternative, it argues that the Tenant, an occupant or guest caused the fire and the Tenant or her insurer should be liable for the damage that occurred and all of the Tenant’s losses.

4. In the further alternative, the Landlord argues that it has addressed the disrepair in the rental unit in a timely and effective manner and no remedy should flow to the Tenant from the breach of subsection 20(1).

5. For the reasons that follow the Board finds that the tenancy agreement between the Landlord and Tenant was not terminated as a result of the application of the doctrine of frustration; the evidence is insufficient to establish that it is more likely than not that the Tenant, an occupant or guest wilfully or negligently caused the fire; and the Landlord has not responded to the disrepair to the rental unit in a timely or effective manner.

11. With respect to the first definition of frustration, it cannot be said that the rental unit was utterly destroyed. It was not. It was seriously damaged but there is no question that the unit was capable of being renovated and restored.

12. With respect to the second definition of frustration it cannot be said that the fire was unforeseeable. The Tenant had fire insurance for just such an eventuality. The Landlord’s Site Supervisor estimated he had been involved in maybe ten fire restorations in his career.

13. So the evidence simply does not support the conclusion that the tenancy agreement was frustrated as a result of the fire.