Focus On


Thursday, March 22, 2018 @ 6:27 AM  

Lexis Advance® Quicklaw®
Appeal by the lessor from an award of damages for eviction of the lessee. In 1995, the respondent leased from the appellant 2,000 acres of hunting grounds for the purpose of operating a hunt club business. The respondent stopped paying rent in 2005 on the basis that he was drawing down the capital improvement credit for the cost of improvements, which the appellant had approved, that he had made to the building and land. The respondent did not keep receipts for the costs of the improvements. The appellant was inconsistent in its application of capital improvement credits between hunt club owners and it did not enforce payment of rent until it evicted the respondent in 2010, at the start of the hunting season. The trial judge allowed the respondent's action. He found that the appellant agreed to reimburse the respondent for the improvements by way of a capital improvement credit to his rent and that it allowed and encouraged the work to be completed knowing the respondent expected to be reimbursed. The judge further found that the appellant was not entitled to evict the respondent for failing to provide receipts for the improvements made. He concluded that the respondent was entitled to a capital improvement credit against rent owing in the sum of $532,500, which resulted in a net judgment of $142,500. He also awarded aggravated damages of $30,000 for the manner in which the plaintiff was evicted. The appellant appealed, arguing that the judge failed to apply s. 2(3) of the Indian Act with respect to the respondent's assertion that the rent for 2000 to 2005 was reduced pursuant to an oral commitment given to him by the Chief and his claim that an arrangement was made whereby he would be given credit for improvements. The appellant argued that neither agreement was binding as neither was formally approved by resolution of the band. The appellant also argued that the judge erred in awarding aggravated damages.

HELD: Appeal dismissed. It was open to the trial judge to find that the Chief assured the respondent that rent was reduced and that the lease would be amended and that the band did not insist on the terms of the written lease, but rather had no response when told of the arrangement. Furthermore, the findings that the appellant approved of the leasehold improvements and had undertaken to give the respondent credit for them was supported by the record. The fact that the precise amount of the credit was never resolved did not disentitle the respondent to the credit. There was no error in the award of aggravated damages.

Sands v. Walpole Island First Nations Band Council, [2018] O.J. No. 1014, Ontario Court of Appeal, R.J. Sharpe, P.S. Rouleau and M.L. Benotto JJ.A., February 26, 2018. Digest No. TLD-March192018008