722924 Alberta Ltd. v. Sinn, 2002 ABPC 2

• Judge: Hess, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: January 03, 2002
• Citations: 2002 ABPC 2;(2002), 309 A.R. 342 (PC)

722924 Alta. Ltd. v. Sinn (2002), 309 A.R. 342 (PC)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. JA.133

722924 Alberta Ltd. and Berry Sinn

(P0190105973; 2002 ABPC 2)

Indexed As: 722924 Alberta Ltd. v. Sinn

Alberta Provincial Court

Hess, P.C.J.

January 3, 2002.

Summary:

A landlord sued a former tenant for damages for breach of a lease. The landlord sought judgment for rental arrears, including rent due after the date on which the matter came to trial.

The Alberta Provincial Court allowed the action in part and awarded the landlord judgment for rental arrears owing for the month in which the tenant breached the lease.

Landlord and Tenant - Topic 2422

The lease - Repudiation - What constitutes - A tenant failed to pay the rent owing for June 2001 - The landlord put the tenant on notice of the default and demanded payment or delivery of vacant possession - The landlord advised the tenant that if the rent was not paid, he would be responsible for certain expenses, but did not advise that he would be liable for rent to the end of the lease or until the premises were re-let - The lease did not address the parties' rights and obligations on default - The tenant vacated the premises - The Alberta Provincial Court held that the tenant had repudiated the lease - However, the landlord had not accepted the repudiation and gave the requisite notice of its intention to seek damages equal to the rent reserved by the lease by commencing these proceedings within two months of the repudiation - However, the landlord had relinquished any right to claim damages arising after the tenancy's termination where there was no notice clearly reserving that right - The court awarded the landlord judgment for rental arrears for June 2001.

Landlord and Tenant - Topic 2433

The lease - Repudiation - Duty to notify tenant of intention to seek damages - [See Landlord and Tenant - Topic 2422 ].

Landlord and Tenant - Topic 2433

The lease - Repudiation - Duty to notify tenant of intention to seek damages - The Alberta Provincial Court stated that a "... landlord has the right to claim damages equal to the rent reserved after the breach or repudiation of a tenancy if the landlord preserves that right by notice to the tenant of the intention to do so. Then the landlord may successfully advance such a claim after the lease has been breached or renounced. But in my view the landlord is not entitled to succeed in a claim for damages if it gives notice that the tenant's repudiation is being accepted and the tenant is to vacate the premises without putting the tenant on notice that the landlord intends to seek damages equal to the rent which may accrue at common law for failure to pay the rent falling due under the terms of the rental agreement." - See paragraph 23.

Cases Noticed:

1595 Properties Inc. v. Sunshine Photo Finishing Ltd. et al., [1983] 4 W.W.R. 377 (B.C.S.C.), refd to. [para. 8].

Deerfoot Mall (Calgary) Ltd. v. Dalmont Enterprises (1987), 77 A.R. 204; 37 D.L.R.(4th) 429 (C.A.), refd to. [para. 13].

Highway Properties Ltd. v. Kelly, Douglas & Co., [1971] S.C.R. 562, refd to. [para. 15].

Blue Chip Investments Inc. v. Hicks and Musseau (1983), 50 Nfld. & P.E.I.R. 60; 149 A.P.R. 60 (Nfld. T.D.), affd. (1985), 54 Nfld. & P.E.I.R. 260; 160 A.P.R. 260 (Nfld. C.A.), refd to. [para. 16].

Vinet's Store (1973) Ltd. v. Video Update Canada Inc., [2001] 1 W.W.R. 462; 275 A.R. 40 (Q.B.), dist. [para. 19].

Counsel:

David J. Stanley, for the plaintiff;

A. Stephen W. Stiles, for the defendant.

This action was heard by Hess, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on January 3, 2002.