C & H Properties Inc. v. Amos (Discount Thrift Store), 2012 ABQB 106

Court of Queen ’ s Bench of Alberta Citation: C & H Properties Inc. v. Amos (Discount Thrift Store), 2012 ABQB 106 Date: 20120217 Docket: 1003 16392 Registry: Edmonton Between: C & H Properties Inc., a Corporation duly Registered in the Province of Alberta Applicant - and - Patricia Amos o/a Discount Thrift Store Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] The parties appeared by Originating Application and pursuant to an Order of September 7, 2011 stating certain questions to be answered following a viva voce hearing considered together with a bulk of affidavit evidence, examination on affidavits, documentary evidence and supplementary submissions. [ 2 ] The questions are as follows:

A. Did Nazia Amos personally deliver two notices of renewal on behalf of both Patricia Amos o/a Discount Thrift Store ( “ DTS ” ) and Children ’ s Rescue Foundation ( “ CRF ” ) to Ironwood III Assets Inc. ( “ Ironwood ” ) on or around April 27, 2009? B. Did Patricia Amos send two notices of renewal by registered mail to Ironwood on or about April 27, 2009?

If after the hearing of viva voce evidence, and hearing the submissions of counsel, including reference to filed evidence, the presiding Justice determines as a fact that the answer to either question [above] is yes, a certain lease shall be deemed to have been renewed. If after hearing the viva voce evidence, and hearing the submissions of counsel including reference to the filed evidence, the presiding Justice does not find as a fact that the answer to either question [above] is no, then the Court shall consider the following issue: C.

If the renewal notice in the name of CRF was delivered to Ironwood under the lease in question, was that renewal notice and/or subsequent events effective to renew the lease on behalf of DTS? [ 3 ] In

summary, I answer the questions as follows: A. The evidence does not show that both notices were delivered as aforesaid. B. The evidence does not show that both notices were sent by registered mail as aforesaid. C. The CRF renewal notice which was received by Ironwood, and/or subsequent events are not effective to renew the lease on behalf of DTS. [ 4 ] Before turning to the merits, I will comment on the order giving rise to this trial of issues. That order on its face limits the viva voce evidence to be called.

In what follows I am critical of the absence of any evidence from certain witnesses for the Respondent, whether in oral form or in affidavit. It was open to the parties to apply to vary the September 7, 2011 order if, in their best judgment, one or both concluded more evidence was necessary. Perhaps this all goes without saying: the Respondent herself argues the Applicant should have called certain additional witnesses, and asks me to draw an inference adverse to the Applicant. The Applicant did call further evidence, though not of the witnesses the Respondent complains about.

As set out below I reject the Respondent ’ s call for an inference adverse to the Applicant. To the contrary, as will be detailed in what follows I have concluded it is appropriate to draw adverse inferences against the Respondent. Background [ 5 ] The Applicant, C & H Properties Inc. ( “ C & H ” ) owns the Westgate shopping complex in North Edmonton. It purchased Westgate from Ironwood on January 28, 2010.

As part of the closing of the purchase Ironwood identified all parties with leases, copies of those leases, and estoppel certificates executed by each of the lessees at the Westgate Shopping Centre. [ 6 ] Through this process C & H was provided with a copy of a lease entered into effective November 1, 2004 ( “ the Lease ” ). That Lease was between a former owner of Westgate, Krozelle Building Ltd. and the Children ’ s Rescue Foundation ( “ CRF ” ). The Lease expired on October 31, 2009. [ 7 ] C & H received additional information from Ironwood regarding CRF ’ s tenancy.

C & H received an estoppel certificate executed by Nazia Amos on behalf of CRF on May 1, 2007. The estoppel certificate identified CRF as the leasee. It denied any material changes to the Lease since 2004. C & H also received a letter signed by Ashley Amos on behalf of CRF dated April 27, 2009, addressed

to Ironwood, purporting to exercise an option to renew under the Lease for two further five year terms. [ 8 ] The premises originally leased to CRF were in fact occupied by DTS. C & H questioned the nature of that occupancy. On January 15, 2010, C & H was provided with a Statutory Declaration by Ironwood confirming CRF was the proper tenant.

The Statutory Declaration further confirmed Ironwood never consented to an assignment of CRF ’ s lease. [ 9 ] At the same time as Ironwood ’ s Statutory Declaration, on January 15, 2010, Ironwood provided C & H with another estoppel certificate executed by Nazia Amos on behalf of CRF. That estoppel certificate now identified DTS as a sub-tenant. [ 10 ] On January 21, 2010 Ironwood further confirmed it was unaware of any sub-tenancy or assignment of the Lease.

Ironwood also confirmed no renewal terms had been agreed to unconditionally as between Ironwood and CRF. [ 11 ] The sale of the property was concluded on January 28, 2010. Soon after, C & H concluded that no authorized sub-lease existed between CRF and DTS. As such, C & H issued a notice of default to CRF on February 5, 2010. [ 12 ] On that same day but after the notice of default C & H was contacted by CRF ’ s agent, one Bruce Best of “ the Lease Coach ” ( “ Best ” ).

Best provided C & H with a copy of a letter signed on behalf of Krozelle Building Ltd. (It will be recalled Krozelle was the shopping centre ’ s original owner before Ironwood.) The letter purported to be Krozelle ’ s written consent to CRF to assign the Lease in full to DTS.

The letter also purported to relieve CRF of any of its obligations under the Lease. [ 13 ] Soon after, Best provided C & H with a certificate of insurance indicating that effective February 9, 2010, DTS became the insured under a policy of insurance which previously indicated CRF as the insured. [ 14 ] C & H questioned this state of affairs and, having undertaken a series of corporate and trade name searches, concluded CRF had been struck from the registry of non-profit corporations.

C & H also concluded the trade name “ The Discount Thrift Store ” was registered to a corporation which had also been struck off the corporate registry. C & H took the position that as neither CRF nor DTS were valid and subsisting entities, neither had capacity to occupy the premises under the Lease. [ 15 ] On February 16, 2010 DTS responded to C & H ’ s position in a three-page letter exhibited before the court. The letter is unsigned, but was written apparently by Ashley Amos.

The letter contains many attacks on C & H, but fails to respond in any meaningful way to the tenancy issue, the status of both DTS and CRF, or questions around sub-leases or assignments. [ 16 ] In due course C & H was provided a copy of an Assignment of Lease Agreement executed by CRF and Patricia Amos operating as Discount Thrift Store. The Assignment was provided under cover of a letter of May 27, 2010 to counsel for C & H from newly-retained counsel for Patricia Amos. Attached to counsel ’ s correspondence was the Assignment between CRF as assignor and DTS as assignee. The Assignment is undated.

It is signed by Patricia Amos for DTS, and by Ashley Amos and Nazia Kahn, each for CRF. Nazia Kahn, now Nazia Amos, is Patricia Amos ’ daughter-in-law, married to Ashley Amos. [ 17 ] Also attached to the May 27, 2010 correspondence between counsel were Schedules A & B to the aforementioned Assignment.

Schedule A is a copy of the original Lease between Krozelle Building Ltd. and CRF.

Schedule B is a copy of the letter from Krozelle Building Ltd., referred to above, consenting to assign the Lease from CRF to DTS. [ 18 ] On June 21, 2010 a further estoppel certificate was executed, this time by Patricia Amos. It certifies that effective November 1, 2004, in accordance with s. 5 of the Assignment, “ The Children ’ s Rescue Foundation was relieved of performing the terms, covenants and conditions of the Lease and was from that date onward no longer a party to the Lease ” . [ 19 ] Notwithstanding the production of these various items, C & H maintained its position that DTS was not an entity entitled to renew the Lease and as such was an over holding month to month tenant.

[ 20 ] On October 22, 2010 the Respondent produced for the first time a copy of a letter dated April 27, 2007 signed by Patricia Amos on behalf of DTS. The letter purports to give notice to Ironwood that DTS wished to exercise the renewal option under the lease. Evidence of Nazia Amos [ 21 ] Nazia Amos is Ashley Amos ’ spouse and of course Patricia Amos ’ daughter-in-law.

Nazia Amos ’ evidence before the court appears initially in an affidavit filed December 2, 2010, then in questioning on that affidavit and ultimately in her evidence at this trial of issues. [ 22 ] Nazia Amos acknowledged errors in both the estoppel certificates she signed. Regarding the May 1, 2007 certificate, she acknowledged that owing to the assignment the Respondents maintain exists, in fact material changes had occurred to the Lease in that CRF was no longer the leasee. She testified she did not read the estoppel certificate carefully before she signed it.

Regarding the January 15, 2010 certificate, she erroneously indicated DTS was a sub-tenant. She testified she forgot about the earlier assignment and confused an assignee with a sub-tenant. [ 23 ] Nazia Amos testified Best provided a form of letter to be used to exercise the renewal option. Notice of renewal was required to be given within six months of the expiry of the Lease. She believed it was a blank form. The Respondent did not produce a copy of the blank form at this trial of issues. Counsel for the Applicant sought to interview Best, if need be in the presence of counsel for the Respondent.

Permission was not given. [ 24 ] Nazia Amos testified that Ashley Amos prepared the April 27, 2009 letters based on Best ’ s precedent. The letters are identical except the first is signed by CRF, the second by DTS, and except the first has a small “ 1" at the bottom, the second a small “ 2". No evidence was before me to explain why that is the case. [ 25 ] Both in her evidence at this trial of issues and in her affidavit Nazia Amos testified she delivered both April 27, 2009 letters to “ the lady ” at Ironwood ’ s offices. It was the same lady she gave rent to every month.

Both notices were in one envelope, together with a month ’ s rent. The envelope simply said “ Ironwood ” . There was no indication what was inside. There is no evidence Nazia Amos asked for any form of acknowledgement or receipt of these documents, mindful of other evidence that the Respondents attached great importance to the letters being received by the landlord and made great efforts in that regard. [ 26 ] Nazia Amos says nothing in her affidavit whether the two renewal notices, other than being hand-delivered, were sent to Ironwood in any other fashion.

In her other evidence, however, she states copies of the renewal notice were delivered to Ironwood by registered mail, courier, and fax. The Lease does not permit delivery of a renewal by fax. [ 27 ] Evidence purporting to confirm fax transmissions of the renewal notices was produced for the first time the day before the hearing of this trial of issues. [ 28 ] Some evidence exists to confirm a Canada Post “ lettermail ” delivery to Ironwood as acknowledged by one “ Davidiuk ” . The confirmation of course does not extend to identifying what may have been in the lettermail.

Affidavit of Patricia Amos [ 29 ] Patricia Amos swore an affidavit December 2, 2010 and was examined on it on January 13, 2011, and again on August 18, 2011. Her evidence was before me. It defies

summary. It is enough to say that I find on that evidence alone Patricia Amos was evasive, at times defiant, and overall an entirely unbelievable witness.

[ 30 ] Of course it was open to Patricia Amos to testify in open court and perhaps to leave a more credible impression than she does on paper. Unfortunately she did not testify at this trial of issues. It was originally anticipated she would: the September 7, 2011 order specifies she would give evidence. Before me it was stated Patricia Amos suffered from stress and would not testify after all. Nazia Amos testified these legal proceedings have adversely affected her mother ’ s health.

No other acceptable evidence was before me regarding Patricia Amos ’ medical condition. [ 31 ] I have reviewed the entire court file. I note Patricia Amos ’ apparent medical condition was raised earlier in the proceedings. It was raised when the Applicant wished to examine her on her affidavit. A number of further affidavits, applications and orders exist all dealing with Patricia Amos ’ apparent medical condition. Of particular note, Marceau J. ordered on April 26, 2011 that Patricia Amos provide a medical opinion on or before May 24, 2011 that she was medically unable to be cross-examined on her affidavit.

That order was given in light of the only evidence – even to this day – of any medical condition: a December 8, 2010 Medical Absentee Certificate stating Patricia Amos has been advised to remain home from work for seven days for “ medical reasons ” ; and a January 17, 2011 hand- written note of a family physician that says owing to stress and panic attacks Patricia Amos “ is not able to work from January 17, 2011 to February 20, 2011. [ 32 ] Patricia Amos failed to comply with the order of Marceau J. regarding production of medical evidence. Marceau J. made a further order, on June 3, 2011.

That order notes a scheduled June 21, 2011 echocardiogram. The order compels Patricia Amos to provide a written medical opinion from a cardiologist jointly addressed to counsel, addressing Patricia Amos ’ ability to be cross- examined on affidavit. The letter was to have been provided by July 1, 2011 [ 33 ] The court file reveals nothing further in the way of objective, medical evidence of any condition touching on Patricia Amos ’ non-attendance to give oral evidence. Nothing else was provided to me. I was then informed on the date of this trial of issues that Patricia Amos was not attending.

No adjournment was sought. Evidence of Angela Crowder [ 34 ] Angela Crowder ( “ Crowder ” ) worked for Ironwood as its commercial property manager between June, 1996 and July 31, 2009. She managed the Westgate Shopping Centre amongst seven other properties. She produced a file on CRF which included leases, legal documents and correspondence. There were some minor discrepancies in the file. Ms. Crowder did not admit these discrepancies were “ significant ” as is stated by counsel for the Respondent. [ 35 ] Ironwood had other files, e.g. in relation to accounting, budgets, and arrears.

No evidence was before me that such files were at all relevant or material to the issues in dispute. Nor was any suggestion made that the Respondent had asked for production of those files or any other relevant document production from the Applicant. [ 36 ] Crowder confirmed her file contained an April 27, 2009 letter from CRF exercising its option to renew. There is only one such letter. Her file does not contain a second letter of April 27, 2009 from DTS purporting to exercise an option to renew. Crowder had no recollection of receiving such a letter.

Crowder confirmed lease renewals are important documents and would be placed on the lease file, even if multiple copies of a certain renewal were received. [ 37 ] The Respondent attaches some significance to the fact the original April 27, 2009 letter from CRF has staple marks in its upper right-hand corner. In cross-examination Angela Crowder had no idea what, if anything, was attached to the letter when it arrived at Ironwood.

There is no evidence before me from anyone on behalf of the Respondent - for example Nazia Amos who says she hand- delivered the letter – that anything was stapled together in the envelope. Analysis Adverse inference

[38] As noted, the Respondent Patricia Amos failed to testify before me. The only live evidence before me on behalf of theRespondent is the daughter-in-law, Nazia Amos. Credibility is a central issue. [39] Notwithstanding her non-attendance, I am called on to review and weigh Patricia Amos’ evidence presented by way ofaffidavit, and the examinations thereon. I have already commented on this evidence. I have commented that her evidence, on paper,lacks any credibility. That comment is not made gratuitously to undermine the Respondent’s case.

It is made rather to inform the nextquestion: what do I make of Patricia Amos’ failure to attend at this trial of issues? [40] I will not speculate on what motivated Patricia Amos to decline to attend this trial of issues to give evidence under oath, andto be cross-examined. Her non-attendance was dealt with most casually: I was informed by counsel for the Applicant that she would notbe testifying; Patricia Amos’ own counsel merely confirmed that, without more.

Some brief evidence was given by Nazia Amos aboutthe effect of the litigation on Patricia Amos’ health. [41] I am mindful of the fact the Applicant has not asked me squarely to draw an adverse inference owing to Patricia Amos’ non-attendance. On the other hand the Respondent does ask me to find Patricia Amos has not conducted herself in a credible manner in theproceedings, even to the extent of committing an outright fraud upon the court.

And in its final reply brief of argument, the Applicantnotes that adverse inferences sought by the Respondent “cut both ways” - neither Bruce Best nor Ashley Amos testified, and no solidevidence exists that Patricia Amos was medically unfit from testifying. [42] In the often-cited case of Howard v. Sandau 2008 ABQB 34 Wittmann ACJ (as he then was) summarized the law aroundadverse inference in civil cases: [39] The failure of a party to call a witness in a civil case may result in an adverse inference being drawn against that party. This principle has been well documented in both case law and academic sources.

A number of cases haveadopted the following statement from Wigmore, Evidence in Trials at Common Law, 1979 as the “leading statement” on adverseinference: The failure to bring before the tribunal some circumstances, documents or witness, when either the party himself or his opponent claimsthat the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so; and this fear issome evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.

Theseinferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation bycircumstance which make some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such aninference in general is not doubted. ... [42] In 1970, the Supreme Court of Canada addressed the adverse inference principle in Levesque et al. v. Comeau et al., (SCC), 16 D.L.R. (3d) 425 [Levesque]. This case dealt with a plaintiff suing for damagesfollowing a motor vehicle accident.

She called only one physician to testify, despite having been seen by a number of other physicians inthe months following the accident. Considering this circumstance, Pigeon J. stated: Appellant Lola Levesque’s expert examined her for the first time more than a year after the accident, and after she had consulted severaldoctors and undergone different examinations in the meantime. She alone could bring before the Court the evidence of those facts andshe failed to do it.

In my opinion, the rule to be applied in such circumstances is that a Court must presume that such evidence wouldadversely affect her case. [43] Wittmann ACJ went on to note the decision by a trial judge to draw an adverse inference is discretionary. That discretion isbased on the circumstances of the case. As noted by Mewett and Sankoff in their book Witnesses, Toronto: Thompson Carswell, 2007,the following circumstances may be particularly significant:

- whether there is a legitimate explanation for the failure to call the witness - whether the witness has material evidence to provide - whether the witness is the only person or the best person who can provide the evidence. - whether the witness is within the “exclusive control” of the party, and is not “equally available to both parties” [ 44 ] In the case before me I have found no legitimate explanation for the failure to call Patricia Amos or for that matter Ashley Amos.

Each of these witnesses had clearly material evidence to bring to the trial of issues: it is contended Patricia Amos signed the April 27, 2009 DTS renewal letter; it is further contended she arranged for that letter, together with the CRF April 27, 2009 letter, to be delivered to Ironwood. It is contended Ashley Amos prepared both letters based on a precedent provided by Best, then printed them off. Ashley Amos’ signature appears on the CRF April 27, 2009 letter. Patricia and Ashley Amos are not only material witnesses, their evidence on these points is the best evidence.

Each of these witnesses was in the exclusive control of the Respondent: of course Patricia Amos is the Respondent; as to Ashley Amos, he is the Respondent’s employee and of course son, and given those relationships, it would be unreasonable to expect the Applicant to bring forward his evidence. [ 45 ] Considering all of these circumstances, I draw an adverse inference against the Respondent for Patricia Amos’ failure to attend the trial of issues to testify, and for failing to produce Ashley Amos or at least to produce some evidence from him in affidavit form.

The inference against Patricia Amos is that her evidence would do nothing to erase the doubts that already exist – and if anything the adverse inference heightens those doubts – whether she signed a DTS letter of April 27, 2009, and whether she took any steps to deliver such a letter by any means. It is less concern whether she did anything in connection with the April 27, 2009 CRF letter, given the admitted evidence such a letter was in the Applicant’s lease file.

I recognize that in her affidavit of December 2, 2010 Patricia Amos states she signed a DTS letter, sent it by registered mail, and provided it to Nazia Amos to be delivered personally. However, I have already concluded that without more, I cannot accept Patricia Amos’ affidavit evidence at face value. [ 46 ] The adverse inference against Ashley Amos is that if called, his evidence would run counter to a finding he printed a DTS letter of April 27, 2009. [ 47 ] I decline to draw an adverse inference regarding the non-attendance at the trial of the issue, or the lack of any affidavit from, Bruce Best.

The balance of the evidence [ 48 ] I then need to address, in light of these adverse inferences, the balance of the evidence relevant to the questions posed in this trial of issues. [ 49 ] To deal with documents first, I am troubled by the series of last-minute disclosures of documents convenient to the Respondent ’ s position.

The Applicant argues persuasively that too often the Respondent, when faced with a legal issue in its dealings with the landlord, attempted to resolve the issue by producing a previously-undisclosed document. [ 50 ] I am troubled by the absence of originals of any important documents, key being the DTS letter of April 27, 2009. I can take no comfort from the evidence of Nazia Amos regarding whether originals ever existed and if so, why alleged copies could only be produced at this trial of issues. [ 51 ] In other respects too the evidence of Nazia Amos was not reassuring.

She admitted to being careless when signing important documents such as estoppel certificates. She failed to inform herself on important surrounding circumstances of other documents, for example, where Ashley Amos found the copies of alleged fax confirmation sheets. She failed to address whether anything was stapled to the CRF renewal. Her failure to take away any acknowledgment from the alleged delivery of renewals to Ironwood makes no sense in light of the importance she says the family attached to renewing on behalf of both CRF and DTS.

Generally speaking she was evasive at times both in her questioning on affidavit and at the trial of issues.

[ 52 ] Angela Crowder was a credible witness. The Respondent impugns Crowder ’ s or Ironwood ’ s file handling. If there was credible evidence that multiple copies of the April 27, 2009 CRF letter were provided, or indeed any copies of an April 27, 2009 DTS letter, I would be concerned they were not on Ironwood ’ s file. There is no such credible evidence. In all the circumstances any minor shortcomings in Ironwood ’ s file management do no harm to the Applicant ’ s position. [ 53 ] Crowder could not recall just how she came to be in possession of the April 27, 2009 CRF renewal.

While an important document, in late April, 2009 there was no reason to expect Crowder would attach any importance as to how it arrived. [ 54 ] The Respondent objects that one Joan Davidiuk was not called. Ms. Davidiuk was identified by Crowder as the front-office person at Ironwood handling incoming mail, deliveries and the like. She is obviously the same person who signed for the lettermail mentioned earlier.

Without more, however, I am prepared to take notice of the fact that Davidiuk would have no memory of receiving any particular document or documents from CRF (or indeed DTS) in late April, 2009, some two and a half years before this trial of issues. I have no reason to believe, based on Nazia Amos ’ evidence, that Nazia Amos had any relationship with Davidiuk that would trigger such a recollection.

Nazia Amos herself could only refer to Ironwood ’ s front-office person as “ that lady ” . [ 55 ] To accept the Respondent ’ s position regarding delivery of renewals I would need to believe Ironwood received four copies of each of the April 27, 2009 letters. I would have to believe that seven of those eight letters somehow went missing at Ironwood. On the evidence before me I am not prepared to reach any such conclusion.

Conclusion on the first two questions [ 56 ] I have weighed the evidence of Nazia Amos, together with the inferences I have drawn against Patricia Amos and Ashley Amos, and together with all of the other evidence before me. At the end of the day I answer the first two questions as follows: a. The evidence does not show that both notices were delivered to Ironwood; and b. The evidence does not show that both notices were sent by registered mail to Ironwood.

Renewal of the Lease by other means [ 57 ] The final question is posed as follows: If the renewal notice in the name of the Children ’ s Rescue Foundation was delivered to Ironwood III Assets Inc. under the Lease which is the subject of these proceedings, was that renewal notice and/or subsequent events effective to renew the Lease on behalf of Patricia Amos operating as Discount Thrift Store? [ 58 ] Given the credibility findings already made, it may seem incongruous now to rely on the 2004 Lease assignment between CRF and DTS to help answer this final question of ‘ renewal by other means ’ .

There are after all questions around the validity of the assignment itself. Of course the Applicant, having succeeded on the factual issue of delivery of a renewal by DTS, is content that an assignment exists. The Applicant took pains, reasonably given the confusion caused by the Respondent ’ s multiple estoppel certificates, to confirm at least who the Respondent says the proper leasee was: that gave rise to Patricia Amos ’ June 21, 2010 estoppel certificate in which she confirmed DTS was the true leasee.

The decision having been made that DTS did not deliver a renewal, in all the circumstances the Respondent cannot now be heard to say there was no assignment, and that the only relevant renewal was that of CRF. [ 59 ] The effect of the assignment, subject to any considerations that may follow, is to extinguish any rights CRF had under the lease.

[60] Going forward then the issues are estoppel and relief from forfeiture. [61] The Respondent argues C & H has waived its right to terminate the Lease by amongst other things accepting rent, and byseeking the further estoppel certificate from Patricia Amos. The Respondent refers also to some of the actions of the previous owner,Ironwood, not a party to this trial of issues. [62] C & H argues it promptly acted to attempt to terminate the lease. Within days of assuming ownership of the premises C & Hserved a Notice of Default and Termination. That notice was resisted by the Respondent.

Other litigation steps followed the effect ofwhich were to attempt to maintain DTS’s tenancy. C & H says it was always clear that tenancy was month-to-month rather thanpursuant to any renewed or indeed new lease. It was on that basis that monthly rent payments were accepted. There is no evidencebefore me to the contrary. C & H cites Saskatchewan River Bungalows Ltd. v. Maritime Life Insurance Co. (SCC),[1994] 2 SCR 490 as authority that a party waiving a right – here waiving the right to treat the Lease as terminated – requires anunequivocal and conscious intention to abandon that right.

There is no evidence of any such intention. In addition to the evidencesupporting a month-to-month tenancy, the circumstances of the final estoppel certificate are noted above. They cannot be seen as anywaiver of C & H’s rights to deny the renewal of the original lease. [63] Further, C & H argues persuasively on the authorities of Brewster v. 994620 Alberta Ltd. 2007 ABQB 264 , [2007]A.J. No. 670 (Q.B.) and 1183882 Alberta Ltd. v. Valin Industrial Mill Installations Ltd. 2011 ABQB 440 , [2011] A.J. No.770 (Q.

B) that while relief from forfeiture must involve the loss of a right, here the Respondent did not lose a “right” but rather at mostthe opportunity to seek to exercise a right by giving notice under the lease. [64] If there is any remaining doubt on the estoppel issue, given my findings on the first two issues the Respondent does not comebefore the court with clean hands and cannot succeed on any grounds arising in equity to see the original Lease renewed.

If anythingfurther need be said squarely with regard to relief from forfeiture, I conclude without hesitation that there is nothing unjust or unfair inthe circumstances of this case that would lead me to interfere with the Applicant’s right to rely on its strict legal rights arising from theLease Allegations of misleading the Court [65] After the trial of issues the Respondent stated in written argument the Applicant’s officer “forged” a copy of the April 27,2009 fax by photo-shopping the date of May 27, 2009 into the document. The altered document was then shown to Nazia Amos oncross-examination.

She denied having seen it before. Counsel for the Respondent was given no advance notice of the document beingput to the witness. The document was then identified by its author, the officer of the Applicant, who testified before the court. [66] The Respondent argues this state of affairs led the court to believe another fax confirmation sheet existed which might callinto question the authenticity of the April 27, 2009 fax confirmations produced by Nazia Amos. This ignores the fact the document putbefore Nazia Amos was moments later identified appropriately by the Applicant’s officer.

Counsel had signalled early on the officermight be called to give evidence which arose from the evidence given by Nazia Amos. Arguably, in order for the officer to testifyregarding the impugned document, it needed to be put to Nazia Amos during her testimony. Nazia Amos was asked the most unassumingof questions around the altered document’s origins. [67] The objections of the Respondent also ignore the fact the fax confirmation sheets introduced by Nazia Amos were producedfor the first time the day before this trial of issues.

She could not testify about their origin; her husband Ashley Amos had found them,somewhere. As noted, without explanation Ashley Amos was not called and gave no evidence, even on this most basic point ofcontinuity. Certainly questions arose, and remain, around the authenticity of the fax confirmation sheets. [68] In all of these unusual circumstances counsel for the Applicant opted to introduce evidence which she hoped would illustratethe ease with which a fax confirmation sheet could be altered.

In hindsight, the photo-shopped document might have been introduced,and the witness confronted with it, in a different manner. But to object that the court was misled and that the Applicant throughcounsel sought to “attempt to defraud the Court” is an extraordinary and most inappropriate response from counsel to what occurred. Applicant’s counsel acknowledges it was “...perhaps not the most elegant example of how to introduce evidence...” Contrary however tothe submissions of counsel for the Respondent, the court was not misled by the introduction of this evidence, beguiled perhaps, but only

momentarily. This is manifestly not a case of abuse of process. And it is absurd to argue that on account of the impugned conduct “ ...the Applicant should be precluded from obtaining the assistance of the Court in terminating its Lease with the Respondent ” . Conclusion on the third question [ 69 ] I answer the final question as follows: notwithstanding the renewal notice in the name of CRF delivered to Ironwood under the Lease, neither that renewal notice nor subsequent events were effective to renew the Lease on behalf of DTS. [ 70 ] Each of the three questions posed is answered in favour of the Applicant.

If the parties are unable to agree, costs may be spoken to. Heard on the 9 th day of October, 2011 Further written submissions on the 21 st day of October and on the 1 st and 8 th days of November, 2011 Dated at the City of Edmonton, Alberta this 17 th day of February, 2012. Peter Michalyshyn J.C.Q.B.A. Appearances: Shauna N. Finlay Fraser Milner Casgrain LLP for the Applicant Roger C. Stephens Simons & Stephens for the Respondent