Markdale Ltd. v. Ducharme, (1998) 235 A.R. 283 (QB)

• Judge: Bielby, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 19, 1998
• Citations: (1998), 235 A.R. 283 (QB)

Markdale Ltd. v. Ducharme (1998), 235 A.R. 283 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. SE.068

Markdale Limited (plaintiff/defendant by counterclaim) v. Leonce Ducharme (defendant/plaintiff by counterclaim)

(Action No. 9503-15929)

Indexed As: Markdale Ltd. v. Ducharme

Alberta Court of Queen's Bench

Judicial District of Edmonton

Bielby, J.

June 19, 1998.

Summary:

A tenant operated a dryclean­ing business. Her landlord gave notice of termination for nonpayment of rent. The landlord also imposed a landlord's distress, which resulted in the tenant giving a bailee's undertaking for her drycleaning equipment. The landlord sued the tenant for monies and damages allegedly due and owing under a prima facie expired lease. The tenant coun­terclaimed for damages for wrongful termi­nation of lease and distress with resulting costs for locating new premises and loss of business.

The Alberta Court of Queen's Bench awarded the landlord $3,423 for rent arrears, plus prejudgment interest. The court awarded the tenant $10,000 general damages for wrongful distress.

Damage Awards - Topic 695

Torts - Injury to economic or business relations - General - [See Landlord and Tenant - Topic 8810 ].

Damages - Topic 1103

Liquidated damages - Penalty - What constitutes - A landlord claimed damages and interest pursuant to a prima facie expired lease - The lease stipulated inter­est at 30% - The Alberta Court of Queen's Bench held that the interest clause did not apply to the only claim proven by the plaintiff - However, had interest been payable, the court would have disallowed 30% interest as a penalty and set inter­est at the Judgment Interest Act rate - Interest cal­culated at 30% was oppressive, being in no way a genuine preestimate of damages for failing to pay a debt in the mid 1990s in Canada - See paragraphs 62 to 69.

Interest - Topic 2141

Agreement to pay interest - Bars to recovery - General - [See Damages - Topic 1103 ].

Interest - Topic 3441

Statutory interest - When applicable - General - [See Damages - Topic 1103 ].

Landlord and Tenant - Topic 6704

Termination, forfeiture and re-entry - Landlord's option of forfeiture - Effect of forfeiture - A tenant operated a dry­cleaning busi­ness - Her land­lord gave notice of termi­nation for nonpayment of rent and imposed a land­lord's distress - The tenant claimed general damages of $10,000 aris­ing from the land­lord's illegal distress of her goods - She argued that the distress became illegal because it was undertaken at the same time as the notice of termina­tion of lease was served upon her - She argued that these remedies were mutually exclus­ive and that upon exercis­ing both of them, the landlord was to be deemed sim­ply to have termin­ated her lease, and the distress became illegal in the result - The Alberta Court of Queen's Bench agreed - See paragraphs 70 to 80.

Landlord and Tenant - Topic 6705

Termination, forfeiture and re-entry - Landlord's option of forfeiture - Deemed election of forfeiture - [See Landlord and Tenant - Topic 6704 ].

Landlord and Tenant - Topic 8203

Fixtures and personalty - General prin­ciples - What constitutes a fixture - A tenant operated a drycleaning business - The tenant's landlord sued her claiming, inter alia, that she wrongfully removed fixtures when she left - The landlord argued that because some of the dryclean­ing equip­ment was bolted to the floor, that fact alone made them fixtures - The Alberta Court of Queen's Bench disagreed - The only evi­dence of why machinery was bolted to the floor was that it was done to prevent vibrations or overturning when the equip­ment was operating - The entire circum­stances had to be looked at to deter­mine if the parties intended an item to become a fixture - The bolts were added to make the machines more usable, not the build­ing, and they could be and were quickly disconnected without any evidence of damage to the building - See para­graphs 52 to 61.

Landlord and Tenant - Topic 8204

Fixtures and personalty - General prin­ciples - What constitutes a trade fixture - [See Landlord and Tenant - Topic 8203 ].

Landlord and Tenant - Topic 8705

Distress - General prin­ciples - When dis­tress avail­able - [See Land­lord and Ten­ant - Topic 6704 ].

Landlord and Tenant - Topic 8708

Distress - General prin­ciples - Loss of right of distress - [See Landlord and Tenant - Topic 6704 ].

Landlord and Tenant - Topic 8810

Distress - Relief or bars to distress - Wrongful distress - Damages - A tenant operated a drycleaning busin­ess - Her landlord gave notice of termina­tion for nonpayment of rent and imposed a land­lord's distress - The tenant claimed general damages of $10,000 aris­ing from the dis­tress - The Alberta Court of Queen's Bench allowed the claim - The distress was illegal because undertaken at the same time as the service of the notice of termi­nation and the landlord was to be deemed simply to have terminated her lease - Alternative­ly, the landlord's con­duct was tortious in attempting to block removal of the goods contrary to court orders and in interfering with the tenant's business oper­ations - While the goods were valued at about $100,000, only $16,000 in rent arrears was claimed and in fact, less than $3,500 was owing - See paragraphs 81 to 89.

Real Property - Topic 4203

Fixtures - General principles - Consider­ations in determining what constitutes a fixture - [See Landlord and Tenant - Topic 8203 ].

Cases Noticed:

Canadian Imperial Bank of Commerce et al. v. Assessment Appeal Board (Alta.) and Edmonton (City) (1990), 109 A.R. 203 (Q.B.), revd. (1992), 125 A.R. 6; 14 W.A.C. 6, refd to. [para. 56].

Deer Valley Shopping Centre Ltd. v. Sniderman Radio Sales and Services Ltd. (1989), 96 A.R. 321 (Q.B.), refd to. [para. 64].

Collins Insurance Agencies Ltd. (J.G.) v. Elsley et al., [1978] 2 S.C.R. 916; 20 N.R. 1; 83 D.L.R.(3d) 1, refd to. [para. 67].

Avco Financial Services Canada Ltd. v. Kilbreath (1996), 192 A.R. 131 (Q.B.), refd to. [para. 69].

A & M Enterprises v. B.J. Millwork (1985), 61 A.R. 283, refd to. [para. 72].

Brown (Ian F.) Ltd. v. Carling O'Keefe Breweries of Canada Ltd. (1989), 101 A.R. 72 (Q.B.), refd to. [para. 73].

MacFarlane (A.I.) Associates Ltd. v. Delong (1986), 10 C.P.C.(2d) 25 (Ont. H.C.), refd to. [para. 78].

Counsel:

J. Arends, for the plaintiff;

W. Danson and R. Curtis, for the defend­ant.

This action was heard by Bielby, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following oral decision on June 19, 1998.