Real Property - Landlord and Tenant - Distress
Plaintiff tenant and defendant WM and Buckingham (landlord) entered into lease for commercial premises. Tenant intended to completely renovate premises and open Mediterranean-style restaurant. Tenant also paid landlord $16,950 for purchase of its restaurant business, equipment, and chattels left in leased premises. Upon taking possession of premises, tenant discovered numerous pieces of kitchen equipment had to be replaced. Tenant was locked out for arrears of rent after several months. Landlord distrained tenant's chattels, changed locks, and terminated lease. Tenant’s action for damages for illegal distraint and improper termination of commercial lease was allowed in part while landlord counterclaimed for arrears of rent. Trial judge found lease termination was proper but that landlord had illegally distrained plaintiff’s chattels. Trial judge awarded plaintiff $58,190.74 in damages for conversion and $10,000 in punitive damages which were offset by damages of $1,294 for unpaid rent awarded on to defendant on its counterclaim. In addition, trial judge found that WM was jointly and severally liable for these damages with Buckingham. Landlord appealed. Appeal allowed in part. Trial judge did not err in holding illegal distraint. Landlord had to choose between mutually exclusive remedies of termination and distress. Instead of making choice, it attempted to do both, thus, distraint was illegal.
Pita Royale Inc. (Aroma Taste of the Middle East) v. Buckingham Properties Inc. (2019), 2019 CarswellOnt 8106, 2019 ONCA 439, C.W. Hourigan J.A., M.L. Benotto J.A., and Grant Huscroft J.A. (Ont. C.A.); varied (2017), 2017 CarswellOnt 20043, 2017 ONSC 5976, Carole J. Brown J. (Ont. S.C.J.).
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