Canada v. Edmundston Lumber Co., (1985) 63 N.B.R.(2d) 129 (TD)

• Judge: Daigle, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 22, 1984
• Jurisdiction: New Brunswick
• Citations: (1985), 63 N.B.R.(2d) 129 (TD)

Can. v. Edmundston Lumber Co. (1985), 63 N.B.R.(2d) 129 (TD);

    63 R.N.-B.(2e) 129; 164 A.P.R. 129

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Canada v. Edmundston Lumber Company Limited

(No. E/C/215/82)

Indexed As: Canada v. Edmundston Lumber Co.

Répertorié: Canada v. Edmundston Lumber Co.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Edmundston

Daigle, J.

May 3, 1985.

Summary:

Résumé:

A lumber company leased Crown lands to operate a sawmill. The lease provided that the buildings would revert to the Crown when the lease expired. The company removed certain fixtures before the expiration of the lease. After the lease expired, the Crown brought an action for damages against the company for the cost of replacing the removed fixtures, the cost of repairing damage caused to the buildings by their removal, the costs of levelling a sawdust pile and damages for the loss of potential rental of the property.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the action in part. The court awarded damages for all of the Crown's claims except for the loss of potential rental of the property.

Landlord and Tenant - Topic 1215

The premises - Repairs - By tenant - Upon termination of lease - A tenant caused material damage to the leased premises by removing fixtures on the termination of the lease - The New Brunswick Court of Queen's Bench, Trial Division, held that the tenant's removal of the fixtures breached the tenant's covenant to keep the premises in a good and tenant-like state of repair - The court stated that the covenant to keep the premises in a good state of repair included the covenant to deliver up the premises in that state upon termination of the lease - See paragraph 15.

Landlord and Tenant - Topic 1485

The premises - Alterations - Implied right to make - A lease neither prohibited nor allowed a tenant to make alterations - The New Brunswick Court of Queen's Bench, Trial Division, held that the tenant had the implied right to make alterations that did not change the nature of the leased property, did not diminish the value of the property and did not constitute a breach of the tenant's covenant to keep the premises in a good and tenantable state of repair - See paragraphs 16 to 19.

Landlord and Tenant - Topic 1821

The premises - Waste - Defined - The New Brunswick Court of Queen's Bench, Trial Division, defined waste as "an act or omission by the tenant in possession occasioning the destruction of or injury to house, gardens, woods, trees, or in lands, meadows ... Whatever does lasting damage to the freehold is waste" - See paragraph 23.

Landlord and Tenant - Topic 1821

The premises - Waste - What constitutes - A tenant leased property for a sawmill - During the term of the lease, sawdust was piled on the premises and left there at the expiration of the lease - The New Brunswick Court of Queen's Bench, Trial Division, stated that "even though the leaving of a sawdust pile might indeed amount to waste or a breach of the covenant implied at common law of a tenant-like use", there was no waste where the parties contemplated that the dumping and leaving of the sawdust was permitted under the lease - The court referred to the statement that "as against his landlord a man cannot commit waste if the landlord has entered into a special contract permitting him to do it" - See paragraphs 21 to 30.

Landlord and Tenant - Topic 8203

Fixtures and personalty - Fixture - What constitutes - The New Brunswick Court of Queen's Bench, Trial Division, stated that whether a chattel was a fixture was a question of fact dependent upon the object and purpose of annexation - The court stated that a chattel affixed for the purpose of a permanent and substantial improvement of the land or building, as opposed to a temporary purpose for the more complete enjoyment and use of it as a chattel, was a fixture - See paragraph 9.

Landlord and Tenant - Topic 8203

Fixtures and personalty - Fixture - What constitutes - A tenant removed, inter alia, baseboard heaters, light switches, a hot water heater, a sink, an electrical service entrance, a counter top, a coat rack, a toilet, urinals and partitions with door frames from the leased premises - The New Brunswick Court of Queen's Bench, Trial Division, held that all the items were fixtures, because they were affixed to the building for the improvement of the building, rather than for a temporary purpose - See paragraphs 7 to 12.

Landlord and Tenant - Topic 8204

Fixtures and personalty - Trade fixtures - What constitutes - A tenant claimed that baseboard heaters, light switches, toilets, urinals and partitions, etc., were trade fixtures - The New Brunswick Court of Queen's Bench, Trial Division, held that the items were not trade fixtures, because they were not by their nature necessary for the tenant's business (sawmill) - See paragraph 13.

Landlord and Tenant - Topic 8228

Fixtures and personalty - Removal of - Commercial lease - Trade fixtures - The New Brunswick Court of Queen's Bench, Trial Division, stated that a tenant was entitled to remove trade fixtures from the leased premises, but only if they could be removed without material or serious damage to the leased premises - See paragraph 13.

Cases Noticed:

Richardson Equipment v. Jaybee Warehousing et al. (1977), 16 N.B.R.(2d) 428; 21 A.P.R. 428, refd to. [para. 10].

Coleman v. Monahan, [1927] 2 D.L.R. 209, dist. [para. 15].

Hyman v. Rose, [1912] A.C. 623, refd to. [para. 17].

Rose v. Hyman, [1911] 2 K.B. 234, refd to. [para. 17].

Toronto Harbour Commissioners v. Royal Canadian Youth Club (1913), 15 D.L.R. 106, refd to. [para. 18].

Barron v. Bernard (1973), 33 D.L.R.(3d) 371 (N.S.C.C.), refd to. [para. 24].

Royal Trust Co. v. The King, [1924] Ex. C.R. 121, refd to. [para. 26].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed.), vol. 23, p. 490 [para. 10].

Williams, Canadian Law of Landlord and Tenant (4th Ed.), pp. 419, 431, 432 [para. 23]; 564, 573, 581, 584 [para. 13]; 576 [para. 10].

Counsel:

Michael F. Donovan, for the plaintiff;

Robert C. Rice, for the defendant.

This action was heard on March 22, 1984, and February 26, 1985, before Daigle, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Edmunston, who delivered the following judgment on May 3, 1985.