PAUL LING PLAINTIFF (DEFENDANT BY COUNTER-CLAIM) - v. -, 2003 SKQB 143

2003 SKQB 143 Q.B.G. A.D. 20 03 No. 247 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: PAUL LING PLAINTIFF (DEFENDANT BY COUNTER-CLAIM) - and - PORTLAND PROPERTIES LIMITED DEFENDANT (PLAINTIFF BY COUNTER-CLAIM) Steven Thair for the plaintiff G. Bruce McDonald for the defendant JUDGMENT KOCH J. March 26, 2003 [ 1 ] The plaintiff applicant Paul Ling is the tenant of the defendant Portland Properties Limited of commercial premises in Saskatoon at which the plaintiff is operating a restaurant and lounge.

The two leases which govern the present relationship of the parties were entered into by their respective predecessors but the assignments and succession are not in issue. The plaintiff has been dealing with the defendant through the defendant’s agent Fortress Properties Inc. The defendant concedes the authority of Fortress to act on its behalf. The leases are about to expire. The plaintiff wishes to renew them and has taken appropriate steps in that regard. The defendant is intent upon blocking the renewal notwithstanding that the renewal rent is subject to arbitration in accordance with the terms of the leases.

[ 2 ] One of the leases expires on April 30, 2003 and the other on June 30, 2003. This is an historical discrepancy and predates the involvement of the present parties. It may well have arisen from an inadvertent error. [ 3 ] There is an immediate issue in respect of which the parties are in dispute. Adjoining the space covered by the two leases is a unit of rental space which has been vacant from time to time. In the past when the adjoining space was vacant it was unheated resulting in the plaintiff’s premises being uncomfortably cold along the uninsulated demising wall.

To resolve this the defendant provided electrical service and natural gas to the adjoining space unit and advised the plaintiff that the cost would be added to the plaintiff’s occupancy costs. The plaintiff disputed this addition to his occupancy costs and has not paid it. The amount in issue is $11,468.96. [ 4 ] The plaintiff has a successful business on the premises. He has complied with the lease renewal provisions and deadlines.

The defendant contends that the plaintiff is not entitled to renew because the disputed occupancy costs constitute arrears of rent and while the tenant is in default the renewal provisions are inoperative. The plaintiff is open to paying the amount in dispute under protest or paying it into court or paying it into a solicitor’s trust account pending resolution of the issue.

He contends however that the existence of this issue should not eliminate his right to renew the leases. [ 5 ] In the present action the plaintiff seeks a declaration that the renewal notices he has given serve to validly renew the respective leases, and specific performance requiring the defendant to expressly grant renewals. In addition the plaintiff seeks an injunction to restrain and enjoin the defendant from reentering or repossessing the leased premises.

The plaintiff also claims damages for breach of his right to quiet enjoyment of the leased premises and for breach by the defendant of the renewal terms. [ 6 ] In the motion presently before the court the plaintiff seeks the following relief: 1.

An order that all of the terms of the two Leases, as amended in writing from time to time, and as attached to the Affidavit of Alan Ling, except for the provisions of renewal which are in dispute, shall remain in full force and effect until such time as the issue of the renewal option for both leases has been settled between the parties or until 120 days after the matter has been determined by this Court; 2.

An injunction restraining and enjoining the defendant, its directors, officers, employees and agents and any person acting on or under its instructions from re-entering or re-possessing any of the leased premises for debts alleged to have arisen from the utility costs of the bay adjacent to the Plaintiff’s premises; 3.

An injunction restraining and enjoining the defendant, its directors, officers, employees and agents and any person acting on or under its instructions from distraining the goods of the Plaintiff on the basis of an alleged debt arising from the utility costs on the bay adjacent to the Plaintiff’s premises. 4. Costs of this application as per

Schedule I B, Column 3. [ 7 ] I am not prepared to grant the relief sought in para. 1 of the notice. I do not believe such remedies are lawfully available, at least not on an interim basis. [ 8 ] Neither do I believe that the plaintiff has made out a case to enjoin the defendant from re-entering or levying distress as sought in paras. 2 and 3. In particular the defendant has not sought to reenter the demised premises or given any express notice of an intention to do so.

Neither has the defendant levied or threatened distress on the goods of the plaintiff with respect to the disputed occupancy costs. [ 9 ] What the defendant has done though is attempt to interfere with the plaintiff’s renewal rights in a way that appears to me to be inappropriate and unfair. Therefore I am prepared to enjoin the defendant from using the occupancy costs dispute as an excuse to avoid the renewal of the leases.

Notwithstanding the contention of defence counsel that there is inadequate evidence that the plaintiff will, if the defendant manages to avoid renewal of the leases, suffer irreparable harm for which damages may not provide an adequate remedy I do not hesitate to derive such an inference from the facts and circumstances presented. That issue comes within the framework of the plaintiff’s action and within the second paragraph of the motion. I believe the criteria for injunctive relief are met.

It appears that the plaintiff has a compelling case that nothing stands in the way of the lease renewals except the disputed occupancy costs. It seems

clear to me that the termination of the leases before the dispute is resolved might very well cause irreparable harm to the plaintiff and that the balance of convenience makes it appropriate to exercise the jurisdiction of the court to preserve the status quo pending an opportunity for the parties to negotiate the renewal rental or, failing that, to submit that issue to arbitration in accordance with the leases.

It is appropriate to impose the condition that the plaintiff deposit the amount of the disputed occupancy costs, $11,468.96, into a solicitor’s trust account on arrangements satisfactory to the defendant’s solicitor, or, if the parties are unable to agree on appropriate trust arrangements, to pay the said amount into court to the credit of this action. [ 10 ] The plaintiff has not in his motion sought relief under s. 10 of The Landlord and Tenant Act .

I have however considered that section, not with the idea of granting relief that was not expressly requested, but for the purpose of satisfying myself that the order now granted is not inconsistent with the remedies provided for in ss. (3) and (4) of s. 10. [ 11 ] The plaintiff will have his costs of this application. J.