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Commercial Lease Remedies During The COVID-19 Pandemic – Real Estate and Construction – Canada – Mondaq News Alerts

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In a series of recent cases, courts in Quebec have prevented
landlords from terminating commercial leases and/or have reduced
rent payable during periods where tenants were forced to close due
to COVID-19, particularly where landlords did not apply for the
Canada Emergency Commercial Rent Assistance program
(CECRA). 

In Ontario and British Columbia1,
similar measures have temporarily been enacted into law to prevent
landlords from terminating leases or exercising distress rights if
they are or would otherwise be eligible for CECRA; however, these
measures do not relieve tenants of their obligation to pay rent or
give the tenant the right to pay reduced rent.2 The expiration of these measures may result
in an influx of landlord-tenant disputes and challenge courts to
apply existing common law principles to unfamiliar
circumstances.

Court cases

Quebec courts have begun to temporarily prevent landlords from
terminating commercial leases for rental defaults arising from the
forced closure of retail establishments due to COVID-19. In a
majority of those decisions, courts have granted tenants temporary
injunctive relief pending the determination of the matter on its
merits. In other cases, tenants have succeeded at trial and been
relieved of the obligation to pay rent during periods of forced
closures due to, among other things, the landlord’s inability
to provide peaceable enjoyment of the premises for their intended
use or the fact that the tenant resumed paying full rent following
the forced closures. 

Courts outside Quebec are unlikely to rely on those same
principles in pandemic-related lease disputes. However, the
decisions canvassed in the early stages of the pandemic signal a
willingness by the courts to use their power to protect tenants
affected by the impacts of COVID-19. This is particularly true in
situations where landlords do not take advantage of CECRA or other
government initiatives to mitigate the consequences of the
pandemic. As such, commercial tenants outside Quebec may be able to
achieve similar results by interlocutory injunctions and/or relief
from forfeiture.

Interlocutory injunctions

An interlocutory injunction is a form of temporary relief
granted by courts to prevent a party from performing certain acts.
In Quebec, courts have used this relief to prevent landlords from
terminating leases in situations where the pandemic has caused the
forced closure of retail establishments. To obtain such relief, a
tenant must establish that its claim has some merit, it will suffer
harm that cannot be cured by monetary compensation (such as the
loss of its business or customer base) and the harm it may suffer
if the injunction is not granted is greater than the harm to the
landlord.

The test for interlocutory injunctions is substantially the same
throughout Canada, suggesting that similar decisions may be reached
at the interim relief stage, particularly when a landlord is
eligible but has refused to apply for CECRA. This remedy is likely
to be a commercial tenant’s first recourse if a landlord seeks
to terminate a lease when and where legislative protections no
longer apply.

Relief from forfeiture

A court may grant an interlocutory injunction to a tenant either
pending or as part of its discretion to grant relief from
forfeiture, a remedy available to commercial tenants in Ontario,
British Columbia and Alberta that gives courts the power to
reinstate a tenancy as they see fit. At least one reported decision
in Ontario has already considered such relief in light of COVID-19
and would have restored the tenancy.3

Generally, courts will consider four criteria when the
tenant’s alleged default is the non-payment of rent, including
whether or not:

  • the tenant acted honestly and in good
    faith;
  • the tenant refused to pay rent
    outright;
  • the landlord suffered a serious loss
    from the delay in paying rent; and
  • the rental arrears were
    significant.

The recent Ontario Second Cup decision signals a willingness to
look at rental defaults in the context of the pandemic. In that
case, the tenant’s rental arrears amounted to 25.5% of rent,
which was considered insignificant in light of the
“unprecedented pandemic that shut down most of [the
tenant’s] operations and the country’s economy.”
Tenants may be able to make similar claims either where they ask
the landlord to forego 25% of rent as part of the CECRA program or
where the tenant can only make partial payments. A tenant’s
expressed desire to have a landlord apply for CECRA or enter into a
rent abatement or deferral agreement during the pandemic may
therefore weigh in its favour as such actions contradict an
outright refusal to pay rent.

The courts may also consider a number of other factors,
including the length of the tenancy, the history of defaults and
the tenant’s ability to bring the lease into good standing.
Where special circumstances are at play, those factors may weigh
more heavily in favour of the tenant. For example, the Ontario
decision involved a unique scenario where the tenant would have
lost the benefit of applying for a cannabis retail store licence
for the premises and other locations, which was of utmost
importance to the company.

Practical impact

The decisions released in the early stages of the pandemic may
be a sign of what is to come in the “new normal.” While
the statutory protections in Ontario and British Columbia have been
extended to October 30, 2020, and October 13, 2020, respectively,
the courts have signalled a willingness to effect similar results
in the absence of those protections by the application of equitable
doctrines. This trend may decrease the level of commercial
certainty and comfort that landlords have in pursuing lease
remedies for pandemic-related defaults.

While each situation must be examined case-by-case, landlords
wishing to exercise their rights and remedies under a lease are
encouraged to seek legal advice, particularly in circumstances
where they were eligible but did not apply for CECRA or believe
special circumstances are at play for their tenants. 

A tenant facing eviction for pandemic-related defaults would
also be wise to consult its legal advisors in order to identify the
full range of available rights and remedies. Further, tenants are
encouraged to keep detailed records of COVID-19-related losses
suffered and should actively engage with landlords regarding the
options available to help militate against the financial impacts of
the pandemic on both parties. 

Footnotes

1. The Alberta Commercial Tenancies Protection
Act
(Bill 23) lapsed on August 31, 2020 regarding certain
protections afforded to tenants and to date, this emergency period
(non-enforcement period) has not been extended by regulation even
though the government has the power to do so. The regulations
expire on August 31, 2023.

2. See Helping Tenants and Small Businesses Act,
2020
(Ontario) and COVID-19 Related Measures Act (British
Columbia).

3. The Second Cup Ltd. v 2410077 Ontario Ltd.,
2020 ONSC 3684.


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Here are some facts about British Columbia’s housing market

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Housing affordability is a key issue in the provincial election campaign in British Columbia, particularly in major centres.

Here are some statistics about housing in B.C. from the Canada Mortgage and Housing Corporation’s 2024 Rental Market Report, issued in January, and the B.C. Real Estate Association’s August 2024 report.

Average residential home price in B.C.: $938,500

Average price in greater Vancouver (2024 year to date): $1,304,438

Average price in greater Victoria (2024 year to date): $979,103

Average price in the Okanagan (2024 year to date): $748,015

Average two-bedroom purpose-built rental in Vancouver: $2,181

Average two-bedroom purpose-built rental in Victoria: $1,839

Average two-bedroom purpose-built rental in Canada: $1,359

Rental vacancy rate in Vancouver: 0.9 per cent

How much more do new renters in Vancouver pay compared with renters who have occupied their home for at least a year: 27 per cent

This report by The Canadian Press was first published Oct. 17, 2024.

The Canadian Press. All rights reserved.

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B.C. voters face atmospheric river with heavy rain, high winds on election day

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VANCOUVER – Voters along the south coast of British Columbia who have not cast their ballots yet will have to contend with heavy rain and high winds from an incoming atmospheric river weather system on election day.

Environment Canada says the weather system will bring prolonged heavy rain to Metro Vancouver, the Sunshine Coast, Fraser Valley, Howe Sound, Whistler and Vancouver Island starting Friday.

The agency says strong winds with gusts up to 80 kilometres an hour will also develop on Saturday — the day thousands are expected to go to the polls across B.C. — in parts of Vancouver Island and Metro Vancouver.

Wednesday was the last day for advance voting, which started on Oct. 10.

More than 180,000 voters cast their votes Wednesday — the most ever on an advance voting day in B.C., beating the record set just days earlier on Oct. 10 of more than 170,000 votes.

Environment Canada says voters in the area of the atmospheric river can expect around 70 millimetres of precipitation generally and up to 100 millimetres along the coastal mountains, while parts of Vancouver Island could see as much as 200 millimetres of rainfall for the weekend.

An atmospheric river system in November 2021 created severe flooding and landslides that at one point severed most rail links between Vancouver’s port and the rest of Canada while inundating communities in the Fraser Valley and B.C. Interior.

This report by The Canadian Press was first published Oct. 17, 2024.

The Canadian Press. All rights reserved.

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No shortage when it comes to B.C. housing policies, as Eby, Rustad offer clear choice

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British Columbia voters face no shortage of policies when it comes to tackling the province’s housing woes in the run-up to Saturday’s election, with a clear choice for the next government’s approach.

David Eby’s New Democrats say the housing market on its own will not deliver the homes people need, while B.C. Conservative Leader John Rustad saysgovernment is part of the problem and B.C. needs to “unleash” the potential of the private sector.

But Andy Yan, director of the City Program at Simon Fraser University, said the “punchline” was that neither would have a hand in regulating interest rates, the “giant X-factor” in housing affordability.

“The one policy that controls it all just happens to be a policy that the province, whoever wins, has absolutely no control over,” said Yan, who made a name for himself scrutinizing B.C.’s chronic affordability problems.

Some metrics have shown those problems easing, with Eby pointing to what he said was a seven per cent drop in rent prices in Vancouver.

But Statistics Canada says 2021 census data shows that 25.5 per cent of B.C. households were paying at least 30 per cent of their income on shelter costs, the worst for any province or territory.

Yan said government had “access to a few levers” aimed at boosting housing affordability, and Eby has been pulling several.

Yet a host of other factors are at play, rates in particular, Yan said.

“This is what makes housing so frustrating, right? It takes time. It takes decades through which solutions and policies play out,” Yan said.

Rustad, meanwhile, is running on a “deregulation” platform.

He has pledged to scrap key NDP housing initiatives, including the speculation and vacancy tax, restrictions on short-term rentals,and legislation aimed at boosting small-scale density in single-family neighbourhoods.

Green Leader Sonia Furstenau, meanwhile, says “commodification” of housing by large investors is a major factor driving up costs, and her party would prioritize people most vulnerable in the housing market.

Yan said it was too soon to fully assess the impact of the NDP government’s housing measures, but there was a risk housing challenges could get worse if certain safeguards were removed, such as policies that preserve existing rental homes.

If interest rates were to drop, spurring a surge of redevelopment, Yan said the new homes with higher rents could wipe the older, cheaper units off the map.

“There is this element of change and redevelopment that needs to occur as a city grows, yet the loss of that stock is part of really, the ongoing challenges,” Yan said.

Given the external forces buffeting the housing market, Yan said the question before voters this month was more about “narrative” than numbers.

“Who do you believe will deliver a better tomorrow?”

Yan said the market has limits, and governments play an important role in providing safeguards for those most vulnerable.

The market “won’t by itself deal with their housing needs,” Yan said, especially given what he described as B.C.’s “30-year deficit of non-market housing.”

IS HOUSING THE ‘GOVERNMENT’S JOB’?

Craig Jones, associate director of the Housing Research Collaborative at the University of British Columbia, echoed Yan, saying people are in “housing distress” and in urgent need of help in the form of social or non-market housing.

“The amount of housing that it’s going to take through straight-up supply to arrive at affordability, it’s more than the system can actually produce,” he said.

Among the three leaders, Yan said it was Furstenau who had focused on the role of the “financialization” of housing, or large investors using housing for profit.

“It really squeezes renters,” he said of the trend. “It captures those units that would ordinarily become affordable and moves (them) into an investment product.”

The Greens’ platform includes a pledge to advocate for federal legislation banning the sale of residential units toreal estate investment trusts, known as REITs.

The party has also proposed a two per cent tax on homes valued at $3 million or higher, while committing $1.5 billion to build 26,000 non-market units each year.

Eby’s NDP government has enacted a suite of policies aimed at speeding up the development and availability of middle-income housing and affordable rentals.

They include the Rental Protection Fund, which Jones described as a “cutting-edge” policy. The $500-million fund enables non-profit organizations to purchase and manage existing rental buildings with the goal of preserving their affordability.

Another flagship NDP housing initiative, dubbed BC Builds, uses $2 billion in government financingto offer low-interest loans for the development of rental buildings on low-cost, underutilized land. Under the program, operators must offer at least 20 per cent of their units at 20 per cent below the market value.

Ravi Kahlon, the NDP candidate for Delta North who serves as Eby’s housing minister,said BC Builds was designed to navigate “huge headwinds” in housing development, including high interest rates, global inflation and the cost of land.

Boosting supply is one piece of the larger housing puzzle, Kahlon said in an interview before the start of the election campaign.

“We also need governments to invest and … come up with innovative programs to be able to get more affordability than the market can deliver,” he said.

The NDP is also pledging to help more middle-class, first-time buyers into the housing market with a plan to finance 40 per cent of the price on certain projects, with the money repayable as a loan and carrying an interest rate of 1.5 per cent. The government’s contribution would have to be repaid upon resale, plus 40 per cent of any increase in value.

The Canadian Press reached out several times requesting a housing-focused interview with Rustad or another Conservative representative, but received no followup.

At a press conference officially launching the Conservatives’ campaign, Rustad said Eby “seems to think that (housing) is government’s job.”

A key element of the Conservatives’ housing plans is a provincial tax exemption dubbed the “Rustad Rebate.” It would start in 2026 with residents able to deduct up to $1,500 per month for rent and mortgage costs, increasing to $3,000 in 2029.

Rustad also wants Ottawa to reintroduce a 1970s federal program that offered tax incentives to spur multi-unit residential building construction.

“It’s critical to bring that back and get the rental stock that we need built,” Rustad said of the so-called MURB program during the recent televised leaders’ debate.

Rustad also wants to axe B.C.’s speculation and vacancy tax, which Eby says has added 20,000 units to the long-term rental market, and repeal rules restricting short-term rentals on platforms such as Airbnb and Vrbo to an operator’s principal residence or one secondary suite.

“(First) of all it was foreigners, and then it was speculators, and then it was vacant properties, and then it was Airbnbs, instead of pointing at the real problem, which is government, and government is getting in the way,” Rustad said during the televised leaders’ debate.

Rustad has also promised to speed up approvals for rezoning and development applications, and to step in if a city fails to meet the six-month target.

Eby’s approach to clearing zoning and regulatory hurdles includes legislation passed last fall that requires municipalities with more than 5,000 residents to allow small-scale, multi-unit housing on lots previously zoned for single family homes.

The New Democrats have also recently announced a series of free, standardized building designs and a plan to fast-track prefabricated homes in the province.

A statement from B.C.’s Housing Ministry said more than 90 per cent of 188 local governments had adopted the New Democrats’ small-scale, multi-unit housing legislation as of last month, while 21 had received extensions allowing more time.

Rustad has pledged to repeal that law too, describing Eby’s approach as “authoritarian.”

The Greens are meanwhile pledging to spend $650 million in annual infrastructure funding for communities, increase subsidies for elderly renters, and bring in vacancy control measures to prevent landlords from drastically raising rents for new tenants.

Yan likened the Oct. 19 election to a “referendum about the course that David Eby has set” for housing, with Rustad “offering a completely different direction.”

Regardless of which party and leader emerges victorious, Yan said B.C.’s next government will be working against the clock, as well as cost pressures.

Yan said failing to deliver affordable homes for everyone, particularly people living on B.C. streets and young, working families, came at a cost to the whole province.

“It diminishes us as a society, but then also as an economy.”

This report by The Canadian Press was first published Oct. 17, 2024.

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