Pacific Crown Investment Corp. v. Quirico, 2018 BCPC 258

Citation: Pacific Crown Investment Corp. v. Quirico 2018 BCPC 258 Date: 20181015 File No: 17-58576 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Civil Division BETWEEN: PACIFIC CROWN INVESTMENT CORP. CLAIMANT AND: RYAN QUIRICO DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT Appearing on their own behalf: R. Graf and J. Eng, Company Representatives Counsel for the Defendant: E. Fung and S. Ashbourne, A/S Place of Hearing: Vancouver , B.C. Date of Hearing: June 13, 14, 2018 Date of Judgment: October 15, 2018

I. INTRODUCTION [ 1 ] Pacific Crown Investment Corporation (the “landlord”) has brought a Notice of Claim against Ryan Quirico (the “defendant”) to recover payment of unpaid rent in relation to a commercial lease respecting premises located at 126 East Pender Street, Vancouver (the “premises”). [ 2 ] The landlord was represented at trial by Jordan Eng and Robert Graf.

Both are officers and directors of the landlord. [ 3 ] The landlord seeks total damages of approximately $10,000.00 for unpaid rent and interest for the months of December 2016 and January and February of 2017, along with filing fees and service fees. [ 4 ] In his Reply, the defendant admits that he owed rent for the month of December 2017, but says that the rent owing for that month was covered by his security deposit of approximately $4,000.00. [ 5 ] The defendant denies that he owes rent for the months of January and February 2017.

He alleges that the landlord breached the lease’s covenant of quiet enjoyment to such an extent that it amounted to a repudiation of the lease. [ 6 ] In the alternative, the defendant says that the landlord’s conduct amounted to an acceptance of the defendant’s surrendering of the premises. In the further alternative, the defendant says that the landlord did not fully mitigate its damages. [ 7 ] The defendant has also filed a counterclaim in which he seeks damages against the landlord for $25,000.00. He says he has suffered business losses as a result of the landlord’s breach of contract. II.

CHRONOLOGICAL OVERVIEW [ 8 ] The defendant and his wife moved from Edmonton to Vancouver in the summer of 2012. Their plan was to open a handmade furniture business. The defendant is a certified welder, and his wife has a Fine Arts background in woodworking and operating art galleries. [ 9 ] The premises form part of a heritage building that is at least 100 years old. The age of the building presents challenges.

While the building itself does not have much “heritage class to it”, it is still popular with tenants because it is located in a “funky neighbourhood” and the rent is very low. [ 10 ] The lease was signed by the parties on October 1, 2014. It was for a term of four years commencing on October 1, 2014 and ending on September 30, 2018. [ 11 ] The two original lessees, the defendant and a Clint Moroz, had a falling-out in 2015, resulting in the lease being renegotiated in October 2015 with the defendant being the sole lessee thereafter. [ 12 ] The basic rent for the first year of the lease was $3,200.00 per month.

On October 1, 2015, the basic rent was increased to $3,500.00 per month until September 30, 2018. [ 13 ] There was no contractual provision for early termination of the lease at the instance of either party. [ 14 ] Clause 14.01 of the lease entered into by the parties reads as follows: The Landlord Covenants with the Tenant that if the Tenant pays the Basic Rent and observes and performs all of the covenants and agreements herein on its

part contained, it may peaceably possess and enjoy the Premises for the term of this Lease without any interruption or disturbance from the Landlord or any person or persons lawfully claiming by from or under it. [ 15 ] Other relevant clauses of the lease are as follows: • 7.07 - That the tenant has inspected the premises and accepts the premises “as is”; • 11.03 - That the tenant shall take the premises “as is” and “where is” and shall be responsible for costs of all renovations, alterations or improvements and shall be responsible for obtaining all of the necessary licences from the appropriate authorities; • 19.01 - That the landlord is not responsible for any repairs to the premises except for structural repairs.

The landlord shall not be responsible for overflow or leakage of water from any part of the building subject to paragraph 23.05; and • 23.05 - That the landlord shall not be responsible for any loss arising from the use, misuse or abuse of water or seepage from adjoining lands premises or by accident. [ 16 ] The space above the premises was occupied by Mark It Developments Inc. (“Mark It”). [ 17 ] The landlord and the defendant both say that there were water leak issues in the premises from time to time, although their evidence as to the frequency and severity of the problems varies. Mr.

Eng testified that the defendant reported water leakages in October 2015 and in July 2016, and that each time repairs were made by a plumber sent by the landlord. [ 18 ] Mr. Graf testified that he did not believe that the water issues were significant. He believed that the water leakage affected no more than 5 to 7% of the 3400 square feet contained in the premises. He was also of the view that the unauthorized removal of the drop ceiling in the premises by the defendant and Mr. Moroz contributed to the water leak issues. [ 19 ] The defendant’s wife, Ms.

Szul, testified that the water leakage issues occurred every 2 to 3 months and ranged in severity from

some minor dripping to a “full on stream of water that is filling a five gallon white bucket that we’re emptying out in the toilet in the back”: Transcript, June 13, 2016, p. 99, ll. 32-35. Ms. Szul testified that the water leakage resulted in the laser printer and hardwood flooring being damaged, and at times the water smelled like feces. [ 20 ] The defendant testified that after he took possession of the premises, on at least ten occasions water leaked into the premises from the property directly above.

There were three to four occasions in which he described the water leakage as “real good ones” containing feces and urine and resulting in damage to the hardwood flooring that he had installed. [ 21 ] The defendant testified that he did not see the point of putting the landlord on notice, as the landlord was not helping them with their ongoing problems. He viewed the water leakage issue as constituting a breach of the lease by the landlord. [ 22 ] In addition, a conflict arose between the defendant and Mark It, in that groups of Mark It employees would gather to smoke outside the premises on a regular basis.

The defendant is of the view that this constituted targeted harassment of him and his family for the purpose of getting them to vacate the premises, because Mark It wanted to lease the premises itself. [ 23 ] Ms. Szul testified that they addressed the smoking issues by placing city bylaw signs in the windows of the premises and by contacting people at City Hall, Vancouver Coastal Health and the police.

Nothing seemed to work to resolve the smoking problem with the Mark It employees. [ 24 ] The defendant testified that someone who worked with the Vancouver Health Authority told him to “troubleshoot” the smoking concerns by taking photographs of the employees of Mark It when they were smoking outside of the premises. The defendant started doing this, with the result that complaints were received by the landlord. [ 25 ] On October 21, 2016, Mr. Graf met with the defendant and his wife at the premises. Mr.

Graf says that the purpose of the meeting was to try to “tone down” the rhetoric arising from the ongoing conflict between the defendant and employees of Mark It, in particular relating to smoking. [ 26 ] However, the defendant and his wife perceived the conversation as threatening, and say that at one point Mr. Graf suggested that the solution to the defendant’s issues with Mark It was to surrender the premises, as Mark It wanted to take them over. Mr. Graf denies that he suggested this at any time. [ 27 ] Ms. Szul testified that Mr.

Graf’s closing words when he left felt like a “threat” and that it was clear to her the ulterior motive was to get her and the defendant out of the building: It felt like a threat, and the whole -- it was so illogical for me, for us to be held responsible for something that these little punks from upstairs were doing, that they didn't have the common courtesy to step away when they knew that we were a young family, and this is why it made me so angry is because there was an ulterior motive to this from the very beginning. That is the only reason this is so emotional to me is because I felt like I was railroaded.

There was an ulterior motive. Robert came in and said -- and these words I will not forget, "The guys upstairs want to take over your lease and Jordan and I think it's a good idea." Whether it was to dissolve the problem, the issue that they considered us to be a nuisance, or whether it was because those kids wanted the entire building, I don't care the reasoning behind it. There was an intention there from the very beginning to have our space and they were making it difficult for a purpose. And it -- it felt like I was in -- in another universe.

Ibid at p. 112, ll. 7-28 [ 28 ] The defendant testified that after the visit by Mr. Graf, he and his wife were so upset about what happened that they decided that it was time to move their business. He testified that they did not want to have to do this, but felt they had no choice: A That was -- it wasn't just for us, it was for our community, and we had friends and family that came there, a lot of friends. We don't have any family in Vancouver. This is why -- another reason why we wanted to have a space where we could have community and friends come visit us. It was -- it was safe and no one bothered us there.

People respected us. The people on the street respected us there, and -- and everyone else that just felt that they were entitled to everything, you know, namely EasyMarkit, just the respect was not there. THE COURT: What do you mean "entitled"? A Like, they were entitled -- they felt that they were entitled to our space. THE COURT: The dot coms?

A The -- yes, and -- and -- and Robert reassured us that when he came in and said that they wanted our space, and he -- he testified to that, that they told Robert Graf and Jordan Eng that they eventually want to take over that whole building and all of Chinatown were your exact words. You knew of this. Ibid at p. 21, ll. 36-47 and p. 22, ll. 1-10 [ 29 ] The defendant sent an email to the landlord on November 10, 2016, stating, “We have decided to move our business. Are you interested in signing a new lease with a different tenant starting January 1, 2017?

We have a couple parties that are interested in the space. If that doesn’t work we would like to sublease the space out. Thank you for the opportunity that you have given us to start a business in Chinatown.” [ 30 ] Ms. Szul testified that there was a quick email response from Mr. Graf on November 10, 2016 which read, “Ok. We will try to find someone responsible also. Regards Robert.” She testified that she viewed that email as an unequivocal acceptance of repudiation. [ 31 ] Mr. Graf, however, testified that he did not view this comment as a concession that the landlord had accepted the unilateral

action of the defendant to terminate the lease. [32] Ms. Szul testified that she and the defendant began to move their belongings almost immediately and were out of the premisesby November 30, 2016.

She says that the cost of moving their belongings and the disruption to their business was substantial, and thatthey were unable to complete some orders and lost many potential Christmas customers. [33] On December 6, 2016 at 8:26 AM, the landlord forwarded an email to the defendant advising, in part, that the rent due forDecember was outstanding and, “[u]ntil a replacement tenant is found rent [sic] your lease is still valid and in effect.” [34] On December 6, 2016 at 11:17 AM, the defendant sent an email to the landlord in which he states, “I dropped of [sic] keys tothe space at your office this morning.

Feel free to show it at your leisure. The space is being cleaned tomorrow.” [35] In correspondence dated December 7, 2016, the defendant advised the landlord that he was giving notice that he wassurrendering possession of the premises effective December 31, 2016.

He said that this was due to the “…acrimonious relationship thathas developed between EasyMarkit and myself, along with the favoritism and unfounded complaints.… Consider my lease terminated.” [36] The landlord did not accept the defendant’s position that the premises had been surrendered to its possession, and continued todemand payment for the unpaid rent for the months of December 2016 and January and February of 2017. [37] Mr. Eng testified that the landlord placed a “For Lease” sign on the window of the premises on or around January 6, 2017.

Healso testified that he may have shown the premises to four or five prospective tenants in December 2016 and also in January 2017. [38] Mr. Eng testified that the landlord sent an invoice to the defendant on January 9, 2017, again requesting payment of rent for themonth of December, 2016.

The defendant responded by correspondence dated January 20, 2017 in which, in part, he states, “If youchoose not to terminate of your own accord please consider the lease terminated by me as of December 31, 2016.” [39] The landlord entered into a lease with Mark It on February 15, 2017 for a period of three years effective March 1, 2017, for amonthly rent of $4,100.00. [40] Mr. Eng testified that discussions and/or negotiations with Mark It to lease the premises may have taken place as early asNovember 2016, when the defendant advised the landlord that he was moving his business. [41] Mr.

Graf, on cross-examination, stated that leasing the premises to Mark It was not his first choice because dot-com companiesare a historically risky venture. At some point prior to the defendant’s election to move his business, somebody from Mark It hadexpressed an interest in taking over the premises, but Mr. Graf was not comfortable with that proposal. He denied that there werediscussions with Mark It about leasing the premises already under way at the time of the defendant’s decision. [42] The defendant submits that since November 30, 2016, he has been operating his business with his wife out of their home.

Hesays that the repudiation of the lease by the landlord has caused him to sustain significant business losses, for which he claims damagesin excess of $25,000 by way of counterclaim. III. ANALYSIS (

i) Credibility [43] Credibility and reliability are not the same. Credibility engages the veracity of a witness; reliability engages the accuracy of thatwitness’ testimony. Accuracy engages the ability to observe, recall and recount: R. v. Khan, 2015 BCCA 320 at para. 44. [44] The British Columbia Supreme Court in Bradshaw v.

Brenner, 2010 BCSC 1398 at paras. 186 and 187 providesguidance in assessing the trustworthiness of a witness’ testimony and the methodology that may assist in assessing the trustworthiness ofthat witness’ testimony: [186] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of awitness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability andopportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection,whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimonyduring direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness hasa motive to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.)[Farnya]; R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para.128(S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the caseas a whole and shown to be in existence at the time (Farnya at para. 356). [187] It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a ‘stand alone’ basis,followed by an analysis of whether the witness’ story is inherently believable.

Then, if the witness testimony has survived relativelyintact, the testimony should be evaluated based upon the consistency with other witnesses and with documentary evidence. Thetestimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison. Finally, the court should determinewhich version of events is the most consistent with the “preponderance of probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions” (Overseas Investments

(1986) Ltd. v. Cornwall DevelopmentsLtd. (1993), (AB QB), 12 Alta. L.R. (3d) 298 at para. 13 (Alta. Q.B.)). I have found this approach useful. [45] In addition, in assessing the credibility and reliability of the testimony of a witness, any bias may impact the trustworthiness ofa witness’ testimony.

[ 46 ] I find that the defendant was clearly biased against the management and employees of Mark It.

In particular, I find that it was the smoking by the employees of Mark It outside of the premises that drove the defendant to put the landlord on notice of his intention to move his business to a new location. [ 47 ] The defendant testified that the situation involving the smoking became intense and that there were employees of Mark It, “... smoking five, ten times a day, and groups of people five, six, seven, eight people, right up front of our building… in front of our windows… it was harassment… it was intentional.” It was his belief that the employees of Mark It “despised” the defendant and his wife, but he provided no basis for that opinion. [ 48 ] During the trial, the Court asked the defendant whether he was aware that there were a lot of people who smoked cigarettes in Chinatown and whether or not the conduct of the Mark It employees was “over the top.” I found the defendant’s response to be very troubling.

I find his response amounted to a strident rant. [ 49 ] When the Court asked the defendant if he told any prospective sub-letting tenant who may have been interested in the premises about the smoking issues with Mark It, he testified that he did not believe it was his responsibility and that the smoking was a specific problem directed at the defendant and his wife: A I believe that those people were smoking there because they wanted to remove us from that building, and that was their, you know, that was their whole, you know, jab, if you want to call it that.

If you just keep jabbing away at these guys, then, eventually, they'll leave. And ultimately it wasn't worth the fight for us. We -- we have more important things to worry about, you know. So, I don't think that they were there -- that they were going to be there for other tenants. They were there -- and it started after Clint -- pretty heavily after Clint left, so it was obvious, and Clint was friends with them, and -- and they -- they despised us, those EasyMarkit people. Q Do you believe there was some sort of conspiracy at play? A I do believe that, I do, and it was evident. It was -- it was evident.

Ibid at p. 55, ll. 1-20 [ 50 ] I found it troubling that the defendant characterized the relationship between the landlord and Mark It as a “conspiracy.” While not specifically put to either of the witnesses for the landlord, it is clear from their testimony that they had no conversations with any representative of Mark It concerning the leasing of the premises until the premises were abandoned by the defendant. [ 51 ] The animosity directed by the defendant and his wife toward the Mark It employees and the landlord did not enhance their credibility and reliability as witnesses. [ 52 ] The defendant testified that, after he moved his business out of the premises, he and his wife became “consumed” in researching ways to build a case against the landlord.

In his testimony he said they were zombie-like and did not “sleep for weeks.” [ 53 ] Undoubtedly the defendant and his wife researched the law to find ways to build a case against the landlord, but to suggest they became “zombies” and did not sleep for weeks cannot be the truth. This exaggeration for dramatic effect also did not enhance the defendant’s credibility. [ 54 ] On the other hand, Mr. Eng and Mr. Graf gave their evidence in a straightforward manner. I find that they are both very knowledgeable in their understanding of the contractual obligations of landlords and tenants.

I do not find that their credibility or reliability as witnesses was undermined in cross-examination. (ii) Repudiation Arising from a Breach of the Covenant of Quiet Enjoyment [ 55 ] The right to “quiet enjoyment” is defined at common law as the right to use the premises for all of the usual purposes incidental to occupation.

The standard of proof to establish a breach of the right to quiet enjoyment has been described in various cases as an interference that is so substantial or intolerable as to justify the tenant leaving the demised premises: Heckert v. 5470 Investments Ltd., 2008 BCSC 1298 , at paras. 101 and 104 . [ 56 ] It must be determined whether the defendant’s complaints that the landlord consistently breached his right to quiet enjoyment of the premises amounted to repudiation of the lease. [ 57 ] The defendant submitted that his departure from the premises was exactly what the landlord wanted to happen.

This allowed the landlord to re-let the premises to Mark It at a monthly rate that was higher than the rent that was being paid by the defendant. [ 58 ] The defendant submitted that the landlord interfered with the defendant’s quiet enjoyment of the premises through a persistent course of intimidation and threats which made it intolerable for the defendant to maintain possession of the premises. [ 59 ] One of the issues raised by the defendant concerned water leakage from tenants above the premises. I accept the testimony of Mr. Eng and Mr.

Graf as both credible and reliable in establishing that the landlord took water leakage issues seriously.

To that end, I find that on the occasions that water leakage issues were brought to the landlord’s attention, the landlord took both reasonable and prompt measures to address the water leakage issues. [ 60 ] I find that the defendant exaggerated, or even misled the court, in his assertion that the water leakage issues were constant or chronic, or resulted in the premises being “flooded.” The emails that form part of the evidentiary record are inconsistent with this characterization of the situation. [ 61 ] I reject the testimony of the defendant that there was any implicit or explicit conspiracy between the landlord and Mark It to

“push” the defendant out of the premises. [62] I find that Mr. Graf met with the defendant and his wife on October 21, 2016 with the intention of trying to find a way to settledown the rising emotions being experienced by the defendant and his wife, largely in relation to their issues with the smoking employeesof Mark It. I do not find that Mr. Graf threatened the defendant or his wife during that meeting.

I reject the evidence of the defendant andhis wife that there was any conversation along the lines that the solution to the defendant’s issues with Mark It was to surrender thepremises and allow Mark It to take over the lease. [63] Mr. Eng submitted on behalf of the landlord that the cigarette smoking outside of the premises by Mark It employees wasbeyond the landlord’s ability to control, though the landlord did take reasonable steps to try to mediate and resolve the smoking concerns. [64] I find that if there were bylaw enforcement issues, they would not have been the landlord’s responsibility.

Rather, bylawenforcement would be the responsibility of the City of Vancouver’s bylaw enforcement officers. Certainly at the time the defendantentered into the lease with the landlord, he was aware that there was a smoking culture associated with Chinatown. [65] I accept the evidence of Mr. Eng and Mr. Graf as both credible and reliable in establishing that the landlord took reasonablesteps to address the defendant’s concerns with respect to second-hand smoke entering the premises.

The landlord provided “NoSmoking” signs for display, and also spoke to representatives of Mark It in an effort to alleviate the defendant’s concerns with respect tosecond-hand smoke. (iii) Surrendering of a Lease by a Tenant [66] The Supreme Court of Canada in Highway Properties Ltd. v. Kelly, Douglas & Co., (SCC), [1971] S.C.R. 562at page 570 identified four mutually-exclusive courses of action open to a landlord where a tenant repudiates the lease. Those factorswere summarized by the British Columbia Court of Appeal in Stearman v.

Powers, 2017 BCCA 165 at para. 7: [7] The issue at the retrial was whether the lease had been surrendered at a date earlier than December 2011. The trial judge noted thatin Highway Properties Ltd. v. Kelly Douglas & Co. Ltd., (SCC), [1971] S.C.R. 562 at 570, the Supreme Court ofCanada identified four mutually exclusive courses of action open to a landlord where a tenant repudiates a lease:

a) do nothing to alter the relationship of landlord and tenant, but simply insist on performance of the terms and sue for rent or damageson the footing that the lease remains in force;

b) elect to terminate the lease, retaining the right to sue for rent accrued due, or for damages to the date of termination for previousbreaches of covenant;

c) advise the tenant that he proposes to re-let the property on the tenant’s account and enter into possession on that basis;

d) elect to terminate the lease but with notice to the defaulting tenant that damages will be claimed on the footing of a present recoveryof damages for losing the benefit of the lease over its unexpired term. [67] Halsbury’s Laws of England, (3rd) Vol. 23, at p. 65 succinctly characterized the nature of surrender: Delivery of possession by the tenant to the landlord and his acceptance of possession effect a surrender by operation of law. [68] The conduct of the parties is critical.

When a tenant’s conduct amounts to a surrender, has the conduct of the landlord explicitlyor implicitly amounted to an unqualified acceptance of the surrender? [69] The defendant submitted that he surrendered the premises back to the landlord and the landlord accepted the defendant’ssurrender. He says the landlord’s conduct amounted to a repossession of the premises after the keys were surrendered by the defendant. [70] Mr. Eng made submissions on behalf of the landlord.

He relied upon the plain wording of the lease agreement to support itsposition that it was the defendant who unilaterally terminated the lease without the consent of the landlord. [71] I find that at no time did the landlord request that the keys to the premises be surrendered. It was the defendant who elected todrop off the keys to the premises at the landlord’s office on December 6, 2016. [72] I do not find that the evidence in this case would establish implicitly or explicitly that the landlord accepted the dropping off ofthe keys to the premises as a surrender of the premises.

The landlord’s conduct was inconsistent with an acceptance. [73] I find the evidence establishes that after the defendant gave notice of his intention to move his business on November 10, 2016,and through January 2017, at no time did the landlord implicitly or explicitly accept the defendant’s decision to terminate on his “ownterms.” For the months of December 2016, January 2017, February 2017 and March 2017, the landlord sent correspondence by email tothe defendant advising him that rent was due on the lease. [74] The above-referenced emails sent to the defendant, three of which had invoices attached, support the landlord’s position that itdid not consider that there was any alteration in the relationship between the defendant and the landlord, and that it continued to insist onperformance of the terms of the lease. [75] I do not find that there is any reliable evidence that the landlord was performing, either on its own initiative or the initiative of athird party, any renovations of the premises after the defendant moved his business out of the premises as suggested by the defendant andhis wife. (iv) Mitigation

[ 76 ] Mr. Eng submitted on behalf of the landlord that where a landlord has not terminated a lease but maintains the lease to be in effect and claims rent due, there is no requirement that the landlord must mitigate its loss. [ 77 ] I do not need to consider this argument because in this case, the landlord did take reasonable steps to find a new tenant, and was successful in securing one by February 2017. VII. CONCLUSION [ 78 ] I reject the submission of the defendant that the landlord consistently breached his right of quiet enjoyment to the premises. There were issues consistent with the age of the building.

The defendant was well aware that the age of the building could impact his use of the premises. He could have secured an inspection of the property but elected not to do so. [ 79 ] I find that the defendant and his wife exaggerated the impact of various quiet enjoyment issues on their occupation of the premises.

Their testimony fails to establish that the landlord substantially interfered with their lease’s covenant of quiet enjoyment of the premises or that the occupation of the premises was rendered so intolerable as to justify the defendant terminating the lease. [ 80 ] I reject the submission of the defendant that the landlord elected, either implicitly or explicitly, to terminate the lease. I accept the evidence of Mr. Eng and Mr.

Graf that the landlord considered the lease to be valid and in effect after the defendant announced his intention to move his business in November of 2016, until such time as the premises were re-let. [ 81 ] I reject the submission of the defendant that the landlord’s loss was fully mitigated after it entered into the new lease with Mark It.

While the evidence is unclear as to when exactly the landlord commenced negotiations with Mark It, I find that it is likely the negotiations progressed at some point in February of 2017 resulting in the signing of the lease on February 15, 2017. [ 82 ] Rent for the month of January 2017 is outstanding. The security deposit paid by the defendant would apply to the month of December 2016. [ 83 ] I award the landlord $3,500.00 for the month of January 2017. The landlord is awarded contractual interest of $70.00.

The landlord is awarded filing fees of $156.00 and service fees of $20.00 for a total of $3,746.00. [ 84 ] The landlord is entitled to court ordered interest from the date of the filing of its claim on April 25, 2017 to the date that this judgment is released. [ 85 ] The counterclaim filed by the defendant is dismissed. ______________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia