Humford Developments Ltd. v., 2012 ABQB 36

Court of Queen ’ s Bench of Alberta Citation: Humford Developments Ltd. v. 1026451 Alberta Ltd., 2012 ABQB 36 Date: 20120116 Docket: 1103 05813 Registry: Edmonton Between: Humford Developments Ltd. and Daly Grove G.P. Ltd. Plaintiffs - and - 1026451 Alberta Ltd. Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice T.D. Clackson _______________________________________________________ I. Introduction [ 1 ] I previously provided Reasons for my conclusion in the first part of this special chambers application.

I concluded that 1026451 Alberta Ltd., as purchaser, is bound to accept the prior claim of the lawful tenant of its vendor, whose interest is protected by caveat. That decision is reported at 2011 ABQB 655 . [ 2 ] The issue that remains is whether 1026451 has unreasonably withheld its consent to assignment of the lease from Humford to Daly. Counsel were invited to provide further written materials in support of their respective positions on the issue. Humford and Daly opted to do so. 1026451 opted to stand on the material previously filed. II. Analysis

[3] Plainly, the onus of establishing that a landlord is unreasonably withholding consent to an assignment falls upon the tenant.However, the landlord who fails to proffer a reason for withholding consent, acts unreasonably: Zurich Canadian Holdings Ltd. v.Questar Exploration Inc., 1999 ABCA 75; Jens Hans Investments Co. v. Bridger, 2004 BCCA 340. [4] In this case explanation for refusal to consent was not given until this application was brought. That is reason enough toconclude that 1026451 has unreasonably withheld its consent to the assignment.

However, the parties argued about whether,notwithstanding the tardy response to the tenants’ request, the reasons offered would be sufficiently reasonable to justify 1026451'srefusal to consent. Therefore, although not strictly necessary, I will offer my views. [5] It has been said that a landlord who refuses to consent to the assignment of his lease because he wants more rent or seeks torework the terms of the lease to his advantage, acts unreasonable: Zurich Canadian Holdings Ltd. v. Questar Exploration Inc. 1998A.J. 609; Cowitz v. Siegel, (ON CA), [1955] 1 DLR 678 Ont. CA; Dominion Stores Ltd. v.

Bramalea Ltd., [1985] CarswellOnt 736 (DC), 38 R.P.R. 12; Tradedge Inc. v. Tri-Novo Group Inc., [2009] CarswellOnt 2451, 84 R.P.R. (4th) 84 (SCJ) andWilliams and Rhodes, Canadian Law of Landlord and Tenant (Sixth Edition) originally published in 1988 and updated annually at paras.15-51 to 15-60. [6] The principle, is one of equity. In the absence of a significant change in the nature of the tenant, a landlord is held to hisagreement. That is because, if there were no proposed assignment there would be no prospective out for the landlord.

Thus it falls to thelandlord to explain what it is about the new tenant which causes concern and justifies rewriting the agreement. If the concern isreasonable, the refusal will be as well. [7] In this case, none of the offered reasons relate to any concerns with Daly. Therefore, 1026451's refusal to consent isunreasonable. [8] The applicants are entitled to proceed with the assignment of the lease without 1026451's consent. The respondent’s refusalto consent is declared to be unreasonable. [9] The parties may speak to costs on appointment. Heard on the 14th day of September, 2011.

Written submissions on the 23rd day of November, 2011. Dated at the City of Edmonton, Alberta this 16th day of January, 2012. T.D. Clackson J.C.Q.B.A. Appearances:

Coralie J. Schultz Mohr and Justine Mageau (Student-at-law) Witten LLP for the Plaintiffs Murray L. Engelking Engelking Wood for the Defendant