Distrainment (CTA)

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Date Retrieved:	2024-11-24
CLNP Page ID:	810
Page Categories:	[Eviction (Commercial Tenancy)], [Bailiff Services],[Landlord & Tenant (Commercial)]
Citation:	Distrainment (CTA), CLNP 810, <5$>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2022/01/23

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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).

40 Every person has the like remedy by distress and by impounding and selling the property distrained in cases of rents seck as in case of rent reserved upon lease. R.S.O. 1990, c. L.7, s. 40.

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).

66 (1) Where goods or chattels are distrained by a landlord for arrears of rent and the tenant disputes the right of the landlord to distrain in respect of the whole or any part of the goods or chattels, or disputes the amount claimed by the landlord, or the tenant claims to set off against the rent a debt that the landlord disputes, the landlord or the tenant may apply to a judge to determine the matters so in dispute, and the judge may hear and determine them in a summary way, and may make such order in the premises as he or she considers just. R.S.O. 1990, c. L.7, s. 66 (1).

(2) Where the tenant disputes the right of the landlord to distrain in respect of the whole or any part of the goods or chattels, or disputes the amount claimed by the landlord, the landlord or the tenant may, before any distress has been made, apply to a judge to determine the matter so in dispute, and the judge may hear and determine it in a summary way, and may make such order in the premises as he or she considers just. R.S.O. 1990, c. L.7, s. 66 (2).

(3) An application under this section shall be made, heard and determined in the county or district in which the distress is made. 1993, c. 27, Sched.

Clarkson Co. Ltd. v. Consortium Group Ltd., 1983 CanLII 1995 (ON SC)

On July 12, 1982, the defendant landlord decided to distrain for arrears of rent amounting to $4,366.44. Upon viewing the premises with a bailiff, it was discovered that most of the tenant's effects were too bulky to be moved, and there was no separate room in which the goods could be impounded. The landlord arranged for the locks to be changed that evening. The goods, appraised variously at $81,165 and $52,345, were sold on September 2, 1982, for $29,776.80. The tenant's trustee in bankruptcy, the plaintiff, alleged that the distress was illegal and that the landlord held no priority to the trustee in the funds arising from the sale of the goods of the bankrupt. Trial of the issue was directed.

Held: the plaintiff should succeed.

Distress is discussed in (a) Williams' Canadian Law of Landlord and Tenant, 4th ed. (1973), at pp. 318-19:

76.3 The Cases

After distress the safest course is to remove and impound the goods immediately, or if the tenant agrees to delay or to their remaining on the premises, a written consent should be procured for their production when demanded. It is usual for the tenant to give a consent for the landlord to remain beyond the five days, as it is for the tenant's advantage that the goods be not sold, or, at all events, not sacrificed by hurrying on the sale; if such consent be given, it is prudent, although not absolutely necessary to have it in writing: Black v. Coleman (1879), 29 U.C.C.P. 507 (C.A.).

The distrainer ought either to put all the goods distrained into one room, and keep possession of that only, or to remove such goods out of the house in the absence of any consent to the contrary; but very slight evidence of such a consent will be sufficient: Child v. Chamberlain (1834), 110 E.R. 1080; Washborn v. Black (1774), 103 E.R. 1060n.

Where the impounding is on the premises, one room should be selected, unless the whole house is necessary for the safe keeping of the distress: Woods v. Durrant (1846), 153 E.R. 1137.

and at p. 320:

Where a distress has been lawfully made and all things done to carry the warrant through to completion, an arrangement may properly be entered into whereby the sale is deferred and the tenant given intermediate care of the property: Anderson v. Henry (1898), 29 O.R. 719 (C.A.), overruling Langtry v. Clark (1896), 27 O.R. 280 (C.A.), and distinguishing McIntyre v. Stata (1854), 4 U.C.C.P. 248, which turned upon the form of the bond. This procedure is known as "receipting the goods to the tenant" or "walking distress"; and see Lavell & Co. v. O'Leary, supra, and Poole v. Kirk (1923), 53 O.L.R. 390 (C.A.).

and in (b) Halsbury's Laws of England, 4th ed. vol. 13, p. 158 et seq.:

311. Object and manner of impounding. When chattels have been seized, it is necessary to imprison and secure the chattels for safe custody until the cause of distress is satisfied or the statutory period has elapsed at the expiration of which the chattels can be lawfully sold by reason of the tenant failing to replevy them. This imprisonment, called impounding, places the goods in the custody of the law ... Chattels may be impounded on the premises unless the tenant otherwise requests, or they may be removed to a pound off the premises.

. . . . .

314. Impounding on the premises. By statute goods distrained may be impounded or otherwise secured in such place or on such part of the premises as may be fit and convenient for the impounding and securing of the goods. It has been held that the goods should be moved to one or two rooms and locked up, but this rule has been mitigated by permitting, with the consent of the tenant, the goods to remain in their ordinary position on the premises. Very slight evidence of such consent is sufficient. The distraint is then good against the tenant.

As against strangers, however, goods are impounded or otherwise secured only when there is a distinct act, such as locking them up in a room making it manifest that the goods are not to be taken away.

. . . . .

315. Using the distress. Whether impounded on or off the premises, the landlord may not use or work the goods or cattle impounded unless it is necessary to do so for the preservation of the thing distrained ...

. . . . .

316. Nature of possession to be kept.

. . . . .

The modern practice is for the distrainor and the tenant to enter into a walking possession agreement. This permits the tenant to continue to have the use of the goods and to avoid the expense and inconvenience of having a man in possession. The tenant agrees that in consideration of the distrainor not leaving a man in close possession and leaving the goods in their existing positions he will not remove or allow any of the goods to be removed from the premises. Such an agreement may be made by the tenant or a responsible person in the house.

Such an agreement prevents the tenant from saying that there has not been an impounding actual or constructive. It does not, however, bind any stranger who is not aware of the impounding.

and in (c) Woodfall, Landlord and Tenant, 28th ed. (1978) amended to March 1982, p. 367 et seq.:

Impounding is a necessity

Impounding is a necessary part of a legal distress. It has the effect of placing the goods distrained upon in the custody of the law. Formerly, the goods could only be impounded off the premises, but now they may and, in certain instances, must be impounded on the premises. If removed from the premises the tenant must be given notice of the place where the distress is lodged.

Suitable place for impounding

The Distress for Rent Act 1737, s. 10 enacts that any person lawfully taking distress may impound or otherwise secure the distress so made in such place or on such part of the premises chargeable with the rent as shall be most fit and convenient for the impounding and securing such distress; ...

The distrainer ought either to put all the goods distrained into one room, and keep possession of that only, or to remove such goods out of the house, in the absence of any consent to the contrary; but very slight evidence of such consent will be sufficient. Two or three rooms may be used, if necessary, as may appear most fit and convenient. By consent, goods can be treated as impounded though they are not collected together but remain in situ.

. . . . .

Tenant may not be excluded

It would seem that the landlord is never entitled to lock up the whole of the demised premises, so as to exclude the tenant therefrom, except with his express consent: rather than do that he must remove the goods distrained.

Pita Royale Inc. v. Buckingham Properties Inc., 2017 ONSC 5976 (CanLII)

[1] The plaintiff brings this action for damages for illegal distraint and improper termination of a commercial lease. He seeks damages as follows: $200,000 for illegal distraint and improper termination of the lease; $400,000 for loss of business and intentional interference with economic relations; and $350,000 for punitive and exemplary damages.

[2] The defendant counterclaims for arrears of rent and improvements owing in the amount of $10,879.

[127] Nunn J. explains in Peters v Green Scene Ltd. (1991), 1991 CanLII 4406 (NS SC), 103 N.S.R. (2d) 414 (S.C.), “[d]istraint is a common law remedy only available against arrears of rent and only available when the landlord and tenant relationship continues. Distraint is a recognition that the lease continues.”

[128] 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 distraint 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. GPM Real Property (6) Ltd., [1998] O.J. No. 5258 (Gen. Div.); Sigrist v. McLean, 2011 ONSC 7114, [2011] O.J. No. 5865; Peters v. Green Scene Ltd.; Country Kitchens Ltd. v. Wabash Enterprises Ltd, [1981] N.J. No. 3 (Nfld. C.A.).

[129] A landlord who terminates the lease is not thereafter entitled to distrain goods and fixtures belonging to the tenant: Re Lussier et al. and Denison, 1971 CanLII 737 (ON SC), [1972] 3 O.R. 652 (Co. Ct.), aff’d (1972) 1972 CanLII 378 (ON SC), 3 O.R. 656 (C.A.); North Bay T.V. & Audio Ltd. v. Nova Electronics Ltd.(1983), 1984 CanLII 2100 (ON CA), 44 O.R. (2d) 342.v

[130] In Malka v. Vasiliadis, 2011 ONSC 5884, [2011] O.J. No. 4523, Campbell J. held at para 133, “the law is clear that when a tenant defaults on the obligation to pay rent, the landlord has two mutually exclusive legal remedies, and must elect which remedy to pursue. The landlord can elect to re-enter the premises and distrain the goods owned by the tenant for purposes of satisfying the debt owed by way of rent, but with a view to continuing the lease. Alternatively, the landlord can elect to retake possession of the premises and terminate the lease, and potentially pursue other additional remedies.”

[131] The law is clear that a landlord cannot both terminate the lease and distrain, which the defendant did in this case: Mundell v. 796586 Ontario Ltd., [1996] O.J. No. 2532 (Gen. Div).

[132] The jurisprudence is clear that for distress to be reasonable, a landlord cannot seize and sell more goods that are reasonably necessary to satisfy the arrears of rent: 1526183 Ontario Ltd. v Grant Equipment Corp., 2010 ONSC 928, [2010] O.J. No. 812.

[169] In conclusion, as regards the termination of the lease and illegal distraint of the plaintiff’s chattels, I award damages in the amount of $68, 190.74, inclusive of punitive and exemplary damages. The amount of $1,294 is to be set off from this amount as regards the defendant’s counterclaim, pursuant to my analysis above at paragraph 170.

[170] The plaintiff, which was substantially successful in its claim is entitled to its costs on a partial indemnity basis in the amount of $74,305.15, plus its costs for the motion for security for costs in the amount of $3,764.31.

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

[78] Given my determination that the plaintiff wrongfully terminated the reinstated lease, it is necessary to quantify the defendant’s counterclaim. In Dasham Carriers Inc. v. Gerlach, 2013 ONCA 707, 2013 CarswellOnt 15820, the Court of Appeal held at para. 18 that “[t]here is no special approach to the calculation of damages recoverable by a wrongfully evicted tenant. The calculation is governed by the rule applicable to all breaches of contract: the tenant is entitled to be placed in the same position as if the lease agreement had been performed.”

2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980 (CanLII)

[43] There is a long history of English courts interpreting the section as extending only the time in which a landlord may exercise distress to six months after the end of a lease so long as the tenant is overholding. See, for example, Grimwood v. Moss (1872), L.R. 7 C.P. 360, per Willes and Keating JJ.

[44] The basis for this interpretation is that distress is a landlord’s self-help remedy that is only available where there is a landlord and tenant relationship. A landlord who terminates a lease and re-takes possession of the premises loses the right to distrain tenant chattels for rent arrears.

[45] Contemporary Canadian courts have similarly held that s. 41 only supplants the common law with respect to the time period in which the distress remedy must be exercised. It allows a landlord to distrain an overholding tenant’s chattels within six months following the end or determination of a lease. It does not change the common law rule that a landlord cannot distrain tenant chattels, regardless of timing, if the landlord terminates or forfeits the lease: Mundell v. 796586 Ontario Ltd., [1996] O.J. No. 2532 (Gen. Div.), at para. 8; and Dubien v. Beechwood Promenade Inc., 1992 CarswellOnt 555 (Gen. Div.), at para. 8 (discussing s. 41 of the Landlord and Tenant Act, R.S.O. 1990, c. L.7, which was the precursor to the CTA). See also Ian F. Brown Ltd. v. Carling O’Keefe Breweries of Can. Ltd. (1989), 1989 CanLII 3305 (AB QB), 64 D.L.R. (4th) 710, at pp. 713-14 (Alta. Q.B.), [1989] A.J. No. 1172; Mybrie Investments Ltd. v. Icana Techno Corp., [1997] B.C.J. No. 2475 (S.C.), at paras. 42-43; and C.K. Franchising Inc. v. Kassett, 2012 SKQB 52, at para. 133. The appellant lost the right to distrain the respondent’s assets when it elected to terminate the lease

Felton Brushes Limited v. Atlantis Properties Hamilton Inc., 2020 ONSC 2315 (CanLII)

[9] The Tenant submits that the Landlord improperly distrained the Tenant’s goods and chattels. The Tenant accepted the Landlord’s offer to terminate the lease without penalty. There were no rent arrears at the time that the Landlord purported exercise the right of distraint. The Tenant submits that the Landlord seized the Tenant’s assets as retribution for the Tenant exercising its right to terminate the lease as the Landlord refused to comply with its pre-occupancy obligations and after the Landlord made a clear offer to terminate the lease without penalty to the Tenant.

[33] I have held that the failure to provide heat is covered by the delay in possession clause. Therefore, the rent was not in fact due. The removal of the equipment is not necessarily abandonment of the premises. As I understand the evidence, there was some discussion of the premises being used as a warehouse alone. There were no arrears of rent so the distraint was unlawful.

[34] I find that the Landlord did not seek forfeiture of the lease. The notices were explicit with respect to the purpose of the locks to preserve the distrained property. The lease is in full force and effect.

Bazar v. Chisholm, 2020 ONSC 593 (CanLII)

[111] Thus, as Highway Properties makes clear, termination and repudiation are distinct legal concepts. Repudiation occurs when one party indicates, by words or conduct, that they no longer intend to honour their obligations when they fall due in the future. It confers on the innocent party a right of election to, among other things, treat the lease as at an end, thereby relieving the parties of further performance, though not relieving the repudiating party from its liabilities for breach.

[112] Accordingly, I agree with the plaintiffs that a distress for rents suspends the landlord's right of action for recovery of the rent, and the suspension continues so long as the goods distrained remain in the landlord's hands. A landlord may not terminate a lease and then distrain for the arrears; nor may a landlord terminate a lease while a distress is in progress, unless the landlord first abandons the distress. To pursue the fourth option under Highway Properties, there are two requirements: The lease must be terminated; and there must be notice to the tenant of the reservation of the right to claim damages for the balance of the rent payable under the lease.