Landlord argued I chose to go home for COVID. Really
Wednesday, November 25, 2020 @ 11:39 AM | By Shayna Wise-Till
Once the dust settled and the post-exam blues set in, I began to reflect on the situation. Between the university shutting down, borders being closed, countries going into lockdown and learning how to spell quarantine, I began to wonder what impact the pandemic might have on my contractual obligations.
After picking through my rental contract with a fine-tooth comb, and consulting with my in-house lawyer (my aunt), I quickly saw that the annulment of my contractual obligations wouldn’t be set out in the contract itself.
It felt wrong to have to pay rent for a house I wasn’t living in, and it turned out I wasn’t alone in that sentiment. I did some research and discovered that petitions to governments, institutions, agencies and landlords demanding a suspension of third term rent had garnered thousands of signatures.
This movement started gaining traction around April of 2020, meaning there wasn’t any reliable litigation relating to COVID-19. When trying to convince my landlord to forgive my debts, I knew the lack of case law meant that I was going to have to apply jurisprudence from other areas to the current situation, and present my points with a lot of confidence so that my landlord would believe me.
Like most assured shorthold tenancies, and student housing contracts in general, my contract did not provide an explicitly stated force majeure clause. I felt strongly, however, that the pandemic satisfied the requirements for frustration of contract. The test for establishing frustration asks whether the supervening event was attributable to the fault of either party, whether it was reasonably foreseeable and whether it “transforms the obligation into a radically different obligation from what was initially undertaken.”
The answers to all of those questions appeared simple. The pandemic wasn’t my fault nor was it the landlord’s. I had no idea it was coming, and neither did anyone else. My landlord, perhaps not surprisingly, took a different view. He argued that I chose to go home and he was still prepared to hold up his end of the contract and fulfil his obligations.
It took months, but it appears that we’ve finally got some concrete, COVID-specific jurisprudence. There is a very high bar to be met when arguing frustration or trying to satisfy a force majeure clause, and it would appear that two recent court decisions offer conflicting information about the interpretation of the law.
In the recent case of Durham Sports Barn Inc. Bankruptcy Proposal, the Ontario Superior Court of Justice, finding in favour of the landlord, held that the tenant was not relieved of any portion of the rent for the period in which mandated closures of non-essential businesses shut their doors (Durham’s Sports Barn Inc. (Re),  O.J. No. 4245). Things were not looking good for anyone hoping to avoid rent payments due to COVID-19.
There was a different outcome in other jurisdictions, however. In July 2020 the Quebec Superior Court held in Hengyun International Investment Commerce Inc. c. 9368-7614 Québec inc.  Q.J. no. 4653 that the tenant was entitled to “complete abatement of rent during the period the tenant was required to be closed in connection with COVID-19.”
This relatively new decision in Quebec has yet to be put to the test. We still don’t know whether it will be considered “good law” and set a precedent. Perhaps this claimant simply had good luck with the wording of their force majeure clause. Whether or not a contract contains a force majeure clause, this is still a win. It proves that COVID-19 is capable, albeit in limited circumstances and jurisdictions, of voiding contractual obligations.
Shayna Wise-Till is a third year law student at the University of Leicester in England specializing in international and Canadian law. She works as a legal adviser in a pro bono clinic and on a variety of other projects providing legal advice to homeless people and working with schoolchildren to break down barriers in accessing careers in law. You can find her on LinkedIn.
Photo credit / Aleutie ISTOCKPHOTO.COM
Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at firstname.lastname@example.org or call 647-776-6740.