Saskatoon Business College Ltd. v. 607113 Alberta Ltd., (1996) 149 Sask.R. 174 (QB)

• Judge: Baynton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 21, 1996
• Jurisdiction: Saskatchewan
• Citations: (1996), 149 Sask.R. 174 (QB)

Saskatoon Bus. Coll. v. 607113 Alta. (1996), 149 Sask.R. 174 (QB)

MLB headnote and full text

607113 Alberta Ltd. (plaintiff) v. Saskatoon Business College Ltd., Barry Chapman, Nickvan Holdings Ltd., Van M Holdings Ltd., Agioritis Holdings Ltd. and Ninos Agioritis (defendants)

(1995 Q.B. No. 1161)

Indexed As: Saskatoon Business College Ltd. v. 607113 Alberta Ltd.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Baynton, J.

October 21, 1996.

Summary:

A landlord applied for a writ of possession respecting its commercial premises.

The Saskatchewan Court of Queen's Bench, in a decision reported at 132 Sask.R. 248, declined to determine the issue sum­marily and directed a trial to take place immediately. At the trial, the issues to be determined were, inter alia, whether the lease was valid and whether the landlord was entitled to a writ of possession.

The Saskatchewan Court of Queen's Bench held that the lease was valid and the land­lord was not entitled to a writ of possession.

Execution - Topic 2251

Writ of possession - General - The pur­chaser of premises, leased to the operator of a live adult entertainment business, evicted the tenant and applied for a writ of possession - The purchaser submitted that there was only an agreement to lease or, alternatively, that the alleged lease was for more than three years and was not regis­tered as required under the Land Titles Act - The Saskatchewan Court of Queen's Bench held that there was a valid lease, stating that a binding tenancy was created pursuant to the memorandum to lease even though not all of its provisions were as­certainable and enforceable terms of the tenancy - The court held that the lease was assigned to the purchaser and the purchaser was not entitled to a writ of possession - See paragraphs 11 to 47.

Landlord and Tenant - Topic 2621

The lease - Validity - General - [See Execution - Topic 2251 ].

Landlord and Tenant - Topic 2666

The lease - Registration - Effect of unregistered lease - The tenant of com­mercial premises operated a live adult entertainment business - On an application for a writ of possession, the purchaser of the premises submitted that, pursuant to the Land Titles Act, and in particular s. 67, he was entitled to take the premises free and clear of an alleged lease between a tenant and the seller, because the lease was in excess of three years and was unregistered - The tenant argued that the purchaser lost the protection of the Act because he acted fraudulently, i.e., he purchased the premises in order to get rid of the tenant - The Saskatchewan Court of Queen's Bench held that the purchaser's conduct did not amount to fraud and he did not lose the protection of the Act - See paragraphs 48 to 54.

Landlord and Tenant - Topic 5008

Assignment of lease - General principles - What constitutes a valid assignment - Commercial premises were leased to the operator of a live adult entertainment business - The business college next door to the premises sought to purchase them on the basis of vacant possession - The seller's counteroffer provided that the purchaser would take possession of the property in its current status of occupancy - The college accepted the counteroffer, believing that there was only an agreement to lease or, alternatively, that the lease was invalid because it was for more than three years and was not registered as required under the Land Titles Act - The Saskatchewan Court of Queen's Bench held that the lease was validly assigned to the college - See paragraphs 40 to 47.

Landlord and Tenant - Topic 6606

Termination, forfeiture and reentry - Evic­tion - Writ or order for vacant possession - [See Execution - Topic 2251 ].

Practice - Topic 7021

Costs - Party and party costs - Entitle­ment to - Successful party - Exceptions - Conduct - Commercial premises were leased to the operator of a live adult enter­tainment business because the operator misrepresented the nature of his business - The business college next door to the premises sought to purchase them on the basis of vacant possession - The seller's counteroffer provided that the purchaser would take possession of the property in its current status of occupancy - The college accepted the counteroffer, believing that there was only an agreement to lease or, alternatively, that the lease was invalid because it was not registered under the Land Titles Act - The college bought the premises and sought a writ of possession - The Saskatchewan Court of Queen's Bench declined to grant the college a writ of possession because there was a valid lease and it was assigned to the college - How­ever, the court declined to award costs to any of the parties - See paragraphs 58 to 61.

Cases Noticed:

Lennox v. Westney (1889), 17 O.R. 472 (C.A.), refd to. [para. 14].

Grant v. McPherson (1902), 1 O.W.R. 240 (Ch.), refd to. [para. 14].

Tekarra Properties Ltd. v. Saskatoon Drug and Stationery Co. (1982), 19 Sask.R. 1 (Q.B.), refd to. [para. 14].

North West Electric Co. v. Graphic Arts Western (1981) Ltd. (1991), 20 R.P.R.(2d) 162 (Sask. Q.B.), refd to. [para. 15].

Horse & Carriage Inn Ltd. v. Baron (1975), 53 D.L.R.(3d) 426 (B.C.S.C.), refd to. [para. 15].

British Columbia (Egg Marketing Board) v. Jansen Industries Ltd. (1992), 24 R.P.R.(2d) 36 (B.C.S.C.), refd to. [para. 15].

Parsons (W.H.) Ltd. v. Mother Hubbard's Kitchen Cabinets Ltd. (1989), 75 Nfld. & P.E.I.R. 105; 234 A.P.R. 105 (Nfld. T.D.), refd to. [para. 15].

Saskatoon Square Ltd. v. Dunwoody & Co. and Burlingham, [1993] 7 W.W.R. 257; 111 Sask.R. 161 (Q.B.), refd to. [para. 19].

Dominion Stores Ltd. v. United Trust Co., Geller and Granatstein, [1977] 2 S.C.R. 915; 11 N.R. 97, refd to. [para. 19].

Perring v. Brook (1835), 173 E.R. 161, refd to. [para. 19].

Ronan v. Derheim (1977), 4 A.R. 192; 78 D.L.R.(3d) 622 (C.A.), refd to. [para. 43].

Me-N-Ed's Pizza Parlor Ltd. v. Franterra Developments Ltd. et al., [1975] 6 W.W.R. 752 (B.C.S.C.), refd to. [para. 44].

Protective Holdings Ltd. v. M & P Trans­port Ltd. (1969), 70 W.W.R.(N.S.) 591 (Alta. C.A.), refd to. [para. 44].

Demers (Maurice) Transport Ltd. et al. v. Fountain Tire Distributors (Edmonton) Ltd., [1974] 1 W.W.R. 348 (Alta. C.A.), refd to. [para. 44].

Scandia Meat Market Ltd. v. KDS Invest­ment Co., [1977] 1 W.W.R. 542; 3 A.R. 290 (T.D.), refd to. [para. 45].

Kirilenko v. Lavoie and Sinclair, [1981] 5 W.W.R. 645; 10 Sask.R. 324 (Q.B.), refd to. [para. 48].

Cathray Realties Ltd. v. Simpson-Sears Ltd. and Wetston (1975), 12 N.S.R.(2d) 658; 6 A.P.R. 658 (T.D.), refd to. [para. 58].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 108 D.L.R.(4th) 193, refd to. [para. 58].

SDI Simulation Group Inc. v. Chameleon Technologies Inc. (1994), 34 C.P.C.(3d) 346 (Ont. Gen. Div.), refd to. [para. 58].

Charcoal Pit Ltd. v. Atlantic Insurance Co. et al. (1994), 123 Nfld. & P.E.I.R. 255; 382 A.P.R. 255; 35 C.P.C.(3d) 111 (Nfld. C.A.), refd to. [para. 58].

Stiles v. Workers' Compensation Board (B.C.) (1989), 38 B.C.L.R.(2d) 307 (C.A.), refd to. [para. 58].

Garcia v. Crestbrook Forest Industries Ltd. (1994), 45 B.C.A.C. 222; 72 W.A.C. 222; 119 D.L.R.(4th) 740 (B.C.C.A.), refd to. [para. 58].

Meek v. Northwest Territories (Minister of Personnel) (1992), 14 C.P.C.(3d) 360 (N.W.T.S.C.), refd to. [para. 58].

Statutes Noticed:

Land Titles Act, R.S.S. 1978, c. L-5, sect. 67, sect. 68, sect. 69, sect. 74, sect. 237 [para. 8].

Landlord and Tenant Act, R.S.S. 1978, c. L-6, sect. 5 [para. 56].

Authors and Works Noticed:

Halsbury's Laws of England (1994)(4th Ed. - Reissue), vol. 27(1), p. 62, para. 52 [para. 20].

Orkin, Mark M., The Law of Costs (2nd Ed.) (1995 Looseleaf Ed.), s. 219.1 [para. 58].

Williams and Rhodes, Canadian Law of Landlord and Tenant (6th Ed. 1988), paras. 2:3, 2:6 [para. 15]; 4:2, 4:2:6 [para. 14].

Counsel:

A. Fox, for 607113 Alberta Ltd.;

J. Gillis, for Saskatoon Business College Ltd. and Barry Chapman;

S. Nicholson, for Nickvan Holdings Ltd., Van M Holdings Ltd., Ninos Agioritis and Agioritis Holdings Ltd.

This case was heard before Baynton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on October 21, 1996.