Mar
2015

Commercial Tenancies Act (CTA)-When a tenant abandons their goods and chattels following a landlord’s termination of tenancy for non-payment of rent, what is the mechanism wherein a landlord can claim storage charges?

The Eby v. Pitkin decision of the Ontario Divisional Court in 2006 provides such guidance. Justice E. Macdonald, writing for the panel, dismissed the defendant’s appeal and upheld the decision of Justice Wilson. In that decision, Justice Wilson stated, in part, that no notice was provided to the Plaintiff in accordance with the provisions of s.15 of the Repair and Storage Liens Act and had such notice been sent the Plaintiff would have found a way to redeem the property.

Eby worked as a contractor with a speciality in counter tops for kitchens and bathrooms. He fell into arrears of rent at his commercial premises. The landlord’s solicitors hired Pitkin as a Bailiff to terminate the tenancy and lock Eby out of the premises. Pitkin conducted the termination but Eby continued to attend at the premises by breaking into the property and ignored the notice to remove himself and his goods and chattels. Eby apparently had a history of rental arrears with commercial landlords.

When it was observed by a representative of the landlord that Eby was continuing to attend the premises, Pitkin was instructed to remove Eby’s goods from the premises. This removal was conducted by a third party, White Queen Ltd., and the goods put in storage. Storage fees accumulated and were not paid. Pitkin made two (2) offers to Eby to replevy his goods, but Eby failed to do so.

White Queen Ltd., advertised the public sale of the goods and chattels on August 13, 1991, and received $5,980.00 at auction. After deducting storage fees and other costs, $552.49 was remitted to Eby. Eby claimed at trial that he received no notice of the sale.

Eby’s action claimed damages for loss of his material, equipment and tools which had been sold at auction. Eby claimed that after the goods were seized, no notice was provided to him in accordance with the provisions of s.15 of the Repair and Storage Liens Act. Pitkin and White Queen Ltd., took the position that the RSLA did not apply. Justice Wilson concluded, on a balance of probabilities, that had Eby received notice of the sale, he would have found a way to gather the fees to recover his goods and chattels which were “for him his lifetime of work”.

Based on this decision of the Divisional Court, utilization of the provisions of s.15 of the RSLA in a commercial tenancy environment has now been supported by a court decision.