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COMMERCIAL TENANCIES - Landlord’s remedies - Relief from forfeiture - Consequence to tenant

Monday, September 13, 2021 @ 9:35 AM  


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Appeal by Airside Event Spaces from the dismissal of its petition for relief from forfeiture under a commercial lease. The appellant leased a hangar at the Langley Regional Airport from the respondent. It did not deny that it committed several breaches of the lease by allowing unpermitted uses, unlicensed business operations, unlawful construction, and failing to allow the respondent access to the premises. After giving notice and a period of time to cure the breaches, the respondent terminated the lease and took possession of the premises. The petition judge found that notwithstanding the size of the appellant’s investment, it had not demonstrated good faith in its dealings with the respondent.

HELD: Appeal dismissed. The petition judge’s findings that the appellant deliberately misled the respondent and actively concealed its breaches were reasonably open to him on the evidence. He was alive to the appellant’s waiver and estoppel arguments. Even if there had been waiver of one of the breaches related to a club’s use of the premises, it would not have made a difference to the outcome considering the number and nature of the other breaches. The petition judge appropriately weighed the extent of the appellant’s loss, the disparity between that loss and the damage flowing to the respondent from the breaches and the nature of the breaches. There was no principled basis to interfere with the petition judge’s exercise of discretion, notwithstanding the significant consequences for the appellant. The denial of relief from forfeiture was not so clearly wrong that it amounted to an injustice.

Airside Event Spaces Inc. v. Langley (Township), [2021] B.C.J. No. 1717, British Columbia Court of Appeal, P.M. Willcock, J. DeWitt-Van Oosten and J.C. Grauer JJ.A., August 9, 2021. Digest No. TLD-September132021001